BRACEBRIDGE COURT FILE NO.: FC-21-107

DATE: 20220208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Virginia Jean Haughton, Applicant

AND:

David Gareth Corner, Respondent

BEFORE: The Honourable Justice J.P.L. McDermot

COUNSEL: John H. Ewan, for the Applicant

David Williams, for the Respondent

HEARD: January 27, 2022

endorsement

1This is a motion brought by the Applicant, Ms. Haughton, for temporary spousal support. Mr. Corner denies that Ms. Haughton is entitled to spousal support and says that the motion should be dismissed.

2Sometime between 2007 and 2019, the Applicant, Ms. Haughton and the Respondent, Mr. Corner, had a relationship. There is no doubt that it was intimate throughout most of that time. They never married. But now that Ms. Haughton claims spousal support for herself, the parties cannot agree on the exact nature of that relationship.

3That is important because the Family Law Act¹ (the “FLA”) requires that the parties must fall within the definition of “spouses” for there to be a claim for spousal support under s. 30 of that Act. Mr. Corner says that the Applicant has failed to prove that she was his spouse for support purposes under the FLA and that her motion should be dismissed as a result. He says that if there was cohabitation, it was brief and insufficient to warrant temporary spousal support.

4If the court finds that the parties fit within the definition of spouses, he also suggests that his income has dropped substantially for support purposes. He also says that income should be imputed to the Applicant.

Result

5For the reasons set out below, I have found that the Respondent shall pay the Applicant temporary spousal support in the amount of $1,400 per month commencing February 1, 2022.

Onus of Proof for Interim Spousal Support

6This is a motion for a temporary order. As in most motions for interim orders, these parties have filed conflicting affidavits and I have no ability to make credibility findings on the basis of the affidavits.

7Because of this, the case law confirms that there is no need to fully prove, on the balance of probabilities, entitlement to support. Otherwise, there would be very few orders made as most payor spouses strongly object to any payment of support for their former partner and file affidavits which question entitlement. In these types of motions, the court often sees affidavit evidence either denying cohabitation or a conjugal relationship, which often conflict with the recipient spouse’s evidence as to the relationship. This does not mean that someone is lying; as pointed out during argument by Mr. Williams, there are at the end of the relationship, vastly different perceptions of that relationship and the elements of that relationship. One party’s perception of the nature of cohabitation or whether the parties are spouses is not necessarily determinative of whether the parties come within the statutory definition.

8Because of this and the evidentiary challenges on a temporary motion, the courts have relaxed to some extent the standard of proof for entitlement to spousal support. Many cases have stated that the court needs to only find a “prima facie” case for entitlement: see for example Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 (Ont. C.J.) at para. 44 and Carnegie v. Carnegie, 2008 MBQB 249, 60 R.F.L. (6^th) 192 (Man. Q.B.). Prima facie is defined in Black’s Law Dictionary (9^th ed.) as being “at first sight; on first appearance but subject to further evidence or information” or “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. Samis, for example, confirms that only a triable issue need be shown; the full merits of the issue of entitlement must await trial.

9This was confirmed by Lemon J. in Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC), 2009 O.J. No. 5056 (S.C.J.) who adopted principles for temporary spousal support set out in a British Columbia case, Robles v. Kohn, 2009 BCSC 1163, [2009] B.C.J. No. 1699 (S.C.):

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;

2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;

3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;

4. The courts should not unduly emphasize any one of the statutory considerations above others;

5. On interim applications the need to achieve economic self-sufficiency is often of less significance;

6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

10All of these lead the court to the conclusion that the court ought not impose a strict onus of proof onto the Applicant. She does not have to prove her entire case; she need only prove on the balance of probabilities that she has a case to make for entitlement. The court can only achieve rough justice in making its findings in this regard. And although these issues appear to be tempered by principle no. 8, that the court should hesitate in ordering support where there are contested issues of fact regarding threshold issues, this is not an absolute, but only a situation where it may be “less advisable” to order support. If the facts before the court are sufficient to prove entitlement on a prima facie basis, then interim spousal support should be ordered.

Spousal Relationship

11For there to be a claim for spousal support for unmarried parties under the FLA, the Applicant must satisfy the court that they are spouses of one another: see s. 30.

12Spouses are defined in s. 29(1) of the FLA as follows:

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years,…

13“Cohabit” is defined in s. 1(1) of the FLA as living “together in a conjugal relationship, whether within or outside of marriage”.

14The issues raised by the Respondent are:

(a) Was there a conjugal relationship between the parties?

(b) What was the actual length of cohabitation for spousal support purposes?

Conjugal Relationship

15The Respondent’s lawyer during argument seemed to say that there was a conjugal relationship, but the Respondent’s material casts doubt on that. He has filed material that says that he paid rent to the Applicant when he lived with her and she paid rent when she lived with him. He says that the parties never continuously cohabited, and that he spent only 3 or 4 nights a week at the Applicant’s residence, spending other time in his trailer or staying with friends. He says that there was a lengthy separation between the parties between 2014 and 2015 after he purchased his present residence. He has filed material from “oath helpers” which state that there was little visible affection between himself and the Applicant.

16The criteria for a conjugal relationship are set out in Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). Although decided more than 40 years ago, it remains a leading case on the issue of whether the relationship is sufficient to satisfy the definition of a “conjugal relationship” in the FLA: see Climens v. Latner, 2019 ONSC 1311 at para. 117.

17There are seven different major headings in the suggested criteria with subheadings under each section. These include cohabitation, sexual relations exclusive to one another, sharing of household chores, participation together in family and other activities and shared financial arrangements. These are described in Climens as being non-exhaustive. However, another case, Stephen v. Stawecki, 2006 CanLII 20225 (ON CA), [2006] O.J. No. 2412 (C.A.), simplified the criteria to some extent by agreeing with the trial judge in that case that, even where the parties maintained separate residences, a sufficient spousal relationship for support purposes could be found where the parties were:

(a) being exclusive to one another;

(b) sleeping, shopping, gardening, cooking, cleaning, socializing and living together as a couple; and

(c) representing themselves as such to their friends.

18The Court of Appeal confirmed in Stephen v. Stawecki [at para. 4] “that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible.” The fact that the parties had not moved in together at the relevant date did not mean in that case that the parties were not residing together in a conjugal relationship.

19In the present case, the Respondent says that, although he never denies that the parties had sexual relations with each other, that they did not, at least in the early years, live together for more than 3 or 4 nights per week. The Respondent filed evidence from individuals who stated that these parties did not appear to be affectionate with each other or demonstrate physical affection. He says that, although he stayed at the Applicant’s residence between May, 2008 and when he bought his own residence in September, 2014, that he paid the Applicant rent of $500 per month. He says that the parties saw each other and continued their relationship after he moved into his new residence, but that the Applicant did not move into his residence until December, 2015 after which she paid him rent of $1,000 per month until she left in June, 2019. He notes that the parties filed their respective taxes as “single” or “separated” throughout, and that he maintained another address for correspondence when he stayed at the Applicant’s residence between 2008 and 2014. Notwithstanding the fact that the Respondent was having sexual relations with the Applicant and was staying with her three to four overnights per week, the Respondent deposes that he never considered that he was in a common law relationship with the Applicant.

20In light of the evidence filed by the Applicant, I simply do not find that narrative believable. Firstly, although the Respondent seems to say that the relationship was one of “friends with benefits” in his materials, he does acknowledge in his Answer that the parties cohabited between November, 2008 to 2017 (the Applicant claims cohabitation between November, 2007 and June 21, 2019). The Applicant filed photographs of the couple, and they certainly appeared to be in a relationship in several of them; there was clearly physical affection shown by each party to the other. These photographs were taken at social events that the parties appear to have attended as a couple. The Applicant offered no proof that he paid rent to the Applicant and in fact changes his story later in his affidavit, saying he paid his rent by “purchasing various items for [the Applicant] as she states, including food, cat food, gas for her car, and car repairs.”² That could also support a finding that the Respondent shared the expenses of the household in which the Applicant and the Respondent were residing. I note as well that if Mr. Corner only spent 3 to 4 overnights a week at the Applicant’s residence and did not consider it his residence,³ why would he have agreed to pay $500 per month in rent? The Applicant does not strike me as someone who would pay rent for a residence in which he only considered as a “place to stay” on occasion.

21He also does not offer proof of the rent paid by the Applicant of $1,000 per month when she lived at his residence after December, 2015, and claims that the rental was paid in cash. There were no bank statements filed to prove that the Applicant paid rent and the Respondent did not file his income tax returns for 2015 to 2017 to show that he declared the rental payments on those tax returns.

22The Applicant also proved that friends and family thought that she and Mr. Corner were a couple. She filed numerous Christmas cards which were sent to both of them and if these parties were not in a common law relationship, it would have been highly unlikely that these people would have sent Christmas cards to them as a couple. There was also evidence of furniture purchased by the Respondent for the Applicant’s home, roof repairs done by the Respondent on the Applicant’s home and a vehicle that the parties purchased together, with the Respondent guaranteeing the Applicant’s vehicle loan. The parties shared in the costs of renovations and effort in renovations in each other’s residences. All of these were indicia that the parties were in an intimate common law relationship and that they were residing together.

23The suggestion that the parties may have spent time apart during their relationship, and did not live together for 14 months after the Respondent moved into his own place is not fatal to the Applicant’s case. The Court of Appeal makes this clear in Stephen v. Stawecki, where cohabitation and a conjugal relationship was found even though the parties maintained separate residences. There is, as stated in that case, no “bright line” for a finding that the parties were in a conjugal relationship and cohabited together. There are many types of relationships, both good and bad, where the parties would continue to fall within the definitions of “spouses” as set out in the FLA. These parties clearly did fit within that definition during the alleged periods of cohabitation.

24Therefore, the Applicant has satisfied me, at least on a prima facie basis, that these parties were spouses of one another for more than three years, and that the Applicant may maintain her claim for interim spousal support against the Respondent as a result.

Length of Cohabitation

25Under the SSAG, the amount of spousal support payable is dependent, in part, on the length of cohabitation. These parties disagree as to the length of their cohabitation.

26It is difficult on conflicting affidavits to determine when these parties began and ended their cohabitation. Ms. Haughton says that the parties lived together between November, 2007 and June 21, 2019. Mr. Corner says that the parties actually lived together between November, 2008 and 2017 with a break when he moved into his own residence between September, 2014 and December, 2015 after the Respondent purchased his home and the Applicant moved into his new home.

27Again, I repeat that the Court of Appeal confirmed in Stephen v. Stawecki that there is no “bright line test” for cohabitation. Many people have many different ways to make relationships work, but those variations do not necessarily mean that the parties did not live together. The cases have found that there are an infinite number of situations where cohabitation may exist sufficient for support purposes. For example, in Stawecki, the parties were found to have cohabited even though they had separate residences; all that was necessary was the intention to move in together.

28In Climens, the parties maintained separate residences in Toronto. Ms. Climens had her children living with her, but stayed at Mr. Latner’s residence when her children were with their father every second weekend (Thursday to Monday). They cottaged together in the summer and spent time at a condominium owned by Mr. Latner in Florida. Shore J. found that there was cohabitation for the duration of their 14-year relationship even though it was Mr. Latner’s position that he would never move in with Ms. Climens unless she signed a domestic contract.

29In Campbell v. Szoke, 2003 CanLII 2291 (ON SC), [2003] O.J. No. 3471, 45 R.F.L. (5th) 261 (S.C.J.), the parties maintained separate residences in Ontario but lived together in Florida for six months of the year; they were found to have had a 17.5 year cohabitation and the judge did not believe the Respondent’s evidence that he had paid his “spouse” to take care of him during the winters. Karakatsanis J. said in that case that, “Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate, [1993] O.J. no. 1731 at para. 21 (Ont. Gen. Div.).”

30What appears to be important in finding cohabitation is whether there were other indicia of a committed intimate relationship between the parties. In the present case, I have found that to be the case.

31It appears from the cases where cohabitation was found that cohabitation extended from the date of the commencement of the relationship to when it ended, even though the parties did not formally move in together or maintained separate households. In this case, the Respondent says that they could not have moved in together until November, 2008. This was, he says, because he had separated from his former spouse and was subject to bail conditions requiring him to live with his surety which were not relaxed until May, 2008 when his criminal charges were resolved. He said he had a trailer that he lived in which he located on his surety’s property and that he stayed there to comply with the bail conditions and that after the resolution of the criminal charges, he moved that trailer to a campground and continued to live there until November, 2008 when the weather grew colder after which he moved back in with his surety. In fact, he maintains that he continued to live at his former surety’s residence for a number of nights per week even after he moved into the Applicant’s residence on Wellington Street in Bracebridge.

32Ms. Haughton deposes that the parties had sexual relations from 2007 on and Mr. Corner does not disagree. She was aware of the bail conditions under which the Respondent was under, but she points out that he was back on his heels at the end of his relationship with his former spouse and had financial issues and was facing criminal charges. Mr. Corner acknowledges that he never consistently lived with his surety as he lived in a trailer where he could come and go as he pleased; it may have been that he was never in compliance with those bail conditions. It also makes sense that with the coming of winter, the trailer was no longer a solution and that he would have been spending increasing amounts of time at a residence that was near his place of work. There is evidence that the parties attended a buck and doe party in late 2007 as a couple and the Applicant says that there is a photo of them together at that event (I assume that is the first photo in the set attached as Ex. A to the Applicant’s affidavit). The parties agree that the Respondent could not get his furniture from his ex-wife at this time, and he was dependent upon others to provide him with facilities where he could live. It is telling that the Respondent has obtained affidavits from a number of supporters about his relationship with the Applicant, but no affidavit from his surety at the time, Michael Kittl as to the amount of time that the Respondent was spending at his residence throughout.

33The parties were in an intimate relationship by November, 2007 and were attending events together. I am satisfied on the balance of probabilities that they were, for all intents and purposes, a “couple”. He may have only stayed with the Applicant for convenience’s sake, but apparently moved in permanently after the bail conditions were ended once the criminal charges were resolved in May, 2008. It appears that the facts support cohabitation in November, 2007 notwithstanding the bail conditions in place during this time. For this purpose, I repeat the statement of the trial judge in Stephen v. Stawecki [2005] O.J. No. 3027 (S.C.J.) as aff’d by 2006 CanLII 20225 (ON CA), [2006] O.J. No. 2412 (C.A.) where he determined that the parties had cohabited for the purposes of maintaining a claim for damages in respect of wrongful death or injury under the FLA:

The necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later. Their relationship was an exclusive one, neither party being unfaithful. They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours. While they may not have finalized any joint financial arrangements and continued to maintain separate residences, they lived together under the same roof.

34As noted above, this statement was repeated and approved by the Court of Appeal. I find that the situation was similar for the parties in the present case in late 2007. I find that, for the purpose of spousal support, the parties commenced cohabitation in November, 2007.

35Mr. Corner purchased his own residence in September, 2014 which was located on High Falls Road, Bracebridge. He says that he moved into that residence from the Applicant’s Wellington Street residence, and that the Applicant only moved in with him in November, 2015 when she rented out her townhouse. He asks that the period of cohabitation exclude that 14-month period between the purchase of his High Falls residence and when he says that the Applicant moved into his home.

36The Applicant denies that this was the case. She says that the High Falls residence was not in any condition to move into and that the Respondent continued to live with her at the Wellington Street address while the property was renovated.

37Mr. Corner relies upon the case of Whelan-Byrne v. Byrne, 2017 ONCA 729 as authority for the proposition that the court should exclude the period that the parties did not live together from the period of cohabitation. In that case, the parties began cohabitation in June, 1993, separated for five months between October, 1996 and March, 1997 and then finally separated in April, 2010. The trial judge had said that the period of cohabitation for spousal support purposes was between March, 1997 and April, 2010. The appellant wife asked that the first period of cohabitation be added to the second, excluding the five-month period when the parties separated and the Court of Appeal agreed with her, determining that the “appropriate period of cohabitation for the purpose of support is 16 years and 10 months (June 1993 to April 2010), less the 5 month period the parties lived apart – a total period of cohabitation of 16 years and 5 months.”

38Even if I accept the Respondent’s evidence that the parties maintained separate residences between September, 2014 and November, 2015, that does not mean that the parties did not cohabit in a conjugal relationship during that period of time: see Stephen v. Stawecki, supra, Climens v. Latner, supra and Campbell v. Szoke, supra. All of those cases maintain that where the parties maintain an exclusive intimate relationship and continue to hold themselves out as a couple and spend time together at each other’s home, they may be seen as cohabiting notwithstanding having separate residences. Mr. Corner as much as admits that the relationship that the parties had prior to September, 2014 continued when he says that “the Applicant and I stayed in touch and sometimes stayed at each other’s places.”⁴

39I also do not find that Whelan-Byrne necessarily stands for the proposition that a physical separation in the middle of a period of cohabitation will always be excluded from that period. I note that this was not the issue in Whelan-Byrne; the issue was actually whether the pre-separation period of cohabitation would be added into the second period to determine the length of time that the parties lived together. As well, Whelan-Byrne is distinguishable: in that case, the trial judge found that it was, in fact, a separation “to put distance between themselves (i.e. cessation of cohabitation and pursuit of relationships with other persons other than the other party).” He found that “the parties intended to be separate from one another subject, at best, to the possibility of resumption of cohabitation.” That was not the situation in the present case where there was no evidence that the relationship between the parties changed in any manner between September, 2014 and November, 2015 or that they intended to separate. The Respondent’s own evidence confirms this; indeed, it is difficult for him to suggest that the parties intended to separate when he does not acknowledge that they were ever really together.

40I note that there is conflicting evidence as to whether the parties actually lived in separate residences during the relevant time period. Therefore, I specifically do not find that there was the period of separation between those dates as alleged by Mr. Corner. However, for the reasons set out above, even if he did move into a separate residence, I do not find that the period of cohabitation was interrupted between September, 2014 and November, 2015.

41The Respondent puts the final date of separation as being November, 2017 when the Applicant stopped paying rent, although she did not move out of the home. The Applicant says it was on June 24, 2019 when she moved out of the High Falls home.

42The parties agree that things started going badly within their relationship in 2017. The Respondent says that he became upset when the Applicant quit her job and ceased paying rent to him. The Applicant does not admit to ever paying any rent to the Respondent but says that the Respondent was drinking heavily and she became upset at him pursuing another woman at a social event. The Applicant says that this occurred in August, 2017 after which she moved out of the bedroom and into the guestroom. It appears from the Applicant’s materials that the parties did not have sexual relations after that date and the Respondent says that the parties lived separate and apart under the same roof from November, 2017 on. The Applicant did not move out until June, 2019 and indeed, could not because her residence was rented out.

43I find that it is most probable that the parties separated in November, 2017, by which time Ms. Haughton had moved out of the bedroom into the guest room. After that date, it seems that the parties lived separate and apart under the same roof. I find that the Respondent’s narrative of what happened after that date is the most plausible and detailed explanation of events. Although the Applicant says that the parties discussed improving their relationship well into 2018, this could also appear to be discussions about a reconciliation that did not occur.

44I therefore find that for temporary spousal support purposes, the parties resided together for a 10-year period, from November, 2007 to November, 2017.

Incomes of the Parties

45Neither party is satisfied with the income position of the other. Each party wants an income amount attributed beyond the position of the other party.

46Again, this is an interim motion with conflicting affidavits. As I noted in Lamb v. Watt, [2017] O.J. No. 5072, a temporary motion for spousal support is not the place to extensively analyze income or to impute income; the evidence is uncertain and conflicted and there is no means by which the court can assess credibility. On a motion, the court has to take a party’s income at face value; trial is where the court can properly assess income and impute income where appropriate. As noted in Driscoll, a motion for temporary spousal support is, at best, rough justice.

47Mr. Corner is a pharmacist. In 2018, 2019 and 2020, his income was remarkably consistent, in the range of $127,000 per annum, more or less. In fact, since 2009 his income has never dropped below that amount. However, he deposes that his employer has now hired another pharmacist and that this will result in a drop in his income. In 2021, his income was, as of December 25, 2021, $121,183.40. He says that his income in 2022 will be just over $90,000.

48I find that the income of the Respondent for spousal support purposes is his last year’s income in the amount of $121,183.

49The Applicant subsists on an income consisting of OAS and CPP in the amount of $15,883.80.⁵ It was previously higher, but it is common ground that she no longer has rental income for her residence which was paid until she left the Respondent’s residence. As noted in his affidavit, the Applicant quit her job in 2017 and the Respondent was extremely upset about that; he says it brought about the separation of the parties. The Respondent maintains that income should be imputed to the Applicant because she is intentionally underemployed.

50The Applicant is now 67 years of age. She is beyond the normal retirement age and would not normally be forced to work at any sort of employment. She says she has health issues related to aging. The Respondent is much younger; he is 53. Were the Applicant of a similar age bracket to the Respondent, it would be reasonable to impute income. However, at this stage in the proceedings and considering the Applicant is well over normal retirement age, I choose not to.

51Therefore, I find the Applicant’s income for spousal support purposes to be $15,883.

Quantum of Spousal Support

52As none of the SSAG calculations provided come within my findings above, I have prepared a SSAG calculation attached as a schedule to this endorsement.

53Both parties agreed that there would be a deduction for the Respondent’s RSP contributions. I have used the Respondent’s solicitor’s formula of 18% of income resulting in the amount of his contribution of a total of $21,183.

54Based upon the attached calculation, spousal support is in the range of between $1,301 per month to a high range of $1,735 per month. The parties have not suggested that there is any good reason to depart from the SSAG.

55The mid-range figure is $1,518 per month. As the Applicant’s spousal support claim in this matter appears to be non-compensatory in nature, I find that the appropriate amount of spousal support to be ordered is $1,400 per month.

56Spousal support at this amount shall commence February 1, 2022. Retroactive support issues may be addressed at trial.

57Based upon the arguments made at the motion, it appears to me that the Applicant is the successful party and entitled to costs. I am not, however, aware of what offers to settle may have been and I therefore hesitate to make that finding. Therefore, the parties may make costs submissions, the Applicant first and then the Respondent, on a 10-day turnaround. Costs submissions to be provided to the judicial assistant and shall not be more than four pages in length not including Bills of Costs and any offers that may have been made on the motion.

McDermot J.

Footnotes

1. 1R.S.O. 1990, c. F.3
2. 2Affidavit of the Respondent sworn January 21, 2022, para. 16
3. 3He deposed that he considered his former surety’s home as being his “home base” and the Applicant’s residence as a “place to stay”; see Ibid. at para. 7.
4. 4Respondent’s affidavit sworn January 21, 2022, para. 11.
5. 5The Applicant acknowledged that her income would be over $18,000 per annum if you take into account the Guaranteed Income Supplement for seniors. If spousal support is payable, the Applicant will have income beyond the income where that supplement is payable.