Court File and Parties

Court File No.: FS-20-11 Date: September 29, 2023 Superior Court of Justice – Ontario (Haileybury)

Re: HELEN NAT, Applicant/Moving Party And: CRAIG DOUGLAS JENNINGS, Respondent/Responding Party

Before: Justice J.S. Richard

Counsel: David Bennett, for the Applicant Lynn H. Cayen, for the Respondent

Heard: September 20, 2023

Endorsement

Motion

[1] The Applicant, Helen Nat (“Ms. Nat”), brought a motion requesting an order for interim on-going spousal support.

[2] The Respondent, Craig Douglas Jennings (“Mr. Jennings”), argues that Ms. Nat’s motion is premature on the basis that she does not come to court “with clean hands,” alleging she is not being forthcoming with her financial disclosure. Mr. Jennings takes the position that, despite being incomplete and inconsistent, her financial statements and financial disclosure do not show any need for interim support since both parties left the relationship with assets of similar value. Finally, he posits that, at the very least, income should be imputed to her on the basis that she is intentionally underemployed and has not taken any steps to become self-sufficient.

Background

[3] Ms. Nat and Mr. Jennings were married on July 20, 1991, and separated on or about July 1, 2019. The parties have a daughter, who is 24 years old and living independently.

[4] The parties resided in New Liskeard, Ontario. They sold their matrimonial home during the course of these proceedings on October 9, 2020. The proceeds of sale, in the amount of $241,280.22, remain in trust as the parties are unable to agree on the distribution of these proceeds.

[5] Mr. Jennings is 55 years old and is employed by Ontario Northland Railway (“ONR”). In 2022, he earned a gross income of $96,108.57. He has retirement pensions from ONR, Ontera and Bell Canada.

[6] Ms. Nat is employed on a part-time basis by LifeLabs as a phlebotomist. She is currently on compassionate leave to care for her mother. Ms. Nat also runs a business, operating as “Reflections in Stone” (the “Business”), that she mostly describes as a “hobby.” The Business sells crafts and artwork made my Ms. Nat.

[7] Ms. Nat resides with her mother and operates the Business out of the mother’s home. She has pension from the federal government resulting from her employment as a Laboratory Technologist from 1992 to about 1998. In 2022, she reported a gross income of $36,092.59.

Analysis

[8] Entitlement is conceded by Mr. Jennings, and it is evident that the “Rule of 65” will apply in a final order relating to spousal support, as the parties were married for 28 years, and Ms. Nat was 54 years old at the time of separation. It is, therefore, uncontested that Ms. Nat is a dependant.

[9] The only issues currently before this Court, therefore, are:

(1) whether or not a temporary order should be made at this stage; and

(2) if it should, what is the appropriate quantum of support.

Temporary spousal support

[10] Whether it is granted as a final order under s.15.2(1), or as an interim order under s. 15.2(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“the Divorce Act”), the legislated objectives of spousal support are the same:

• recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• apportioning between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
• relieving any economic hardship of the spouses arising from the breakdown of the marriage; and
• in so far as practicable, promoting the economic self-sufficiency of each spouse within a reasonable period of time: see Divorce Act, 15.2(6).

[11] It has long been established, and reiterated in caselaw since, that “the goal of a temporary spousal support order is to maintain as much as possible, the parties’ pre-separation lifestyle pending trial: Fyfe v. Jouppien, 2011 ONSC 5462, at para. 38, citing Kowalski v. Grant, 2007 CarwellMan422 (Man. Q.B.)” (see also: Angst v. Angst, 2018 ONCA 5790).

[12] Not a lot of evidence was presented by the parties on the topic of pre-separation lifestyle per se, but the following facts in Mr. Jenning’s affidavit evidence were uncontested:

• Both parties were employed during the marriage;
• At times, Ms. Nat was the primary wage earner and, at times, Mr. Jennings was;
• Ms. Nat took maternity leave in 1997 but eventually returned to work;
• Ms. Nat started operating the Business in 1991;
• While continuing to operate her Business, Ms. Nat held various jobs throughout the marriage:
  • 1992-1997/1998: Laboratory Technologist (approximately $60,000/year);
  • 1997: maternity leave followed by stress leave;
  • 1998-2007: part-time at a weather station;
  • 1998-2007: supply teacher; and
  • 2007- current: phlebotomist at LifeLabs.

[13] As was explained in Haney v. Haney, [2005] O.J. No. 2329, [2005] O.T.C. 441, at para. 50:

The purpose of an interim support award is to allow a dependant to maintain a reasonable lifestyle pending trial. Recently, however, there has been a movement towards a more generous level of interim support. A dependant is no longer expected to live modestly until trial. (See: Lebovic v. Lebovic (2001), 15 R.F.L (5th) 115.)

[14] This is consistent with the summary provided in Shafey v. Shafey, 2021 ONSC 1783, [2021] O.J. No. 1511, at para. 14, wherein Justice Shelston provides a useful overview of the standard of living that should be relied upon when determining spousal support quantum:

In Gray v. Gray, 2014 ONCA 659 the Court of Appeal addressed the issue of economic hardship and the standard of living that existed at the date of separation:

27. One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses. [Emphasis added.]

In Fisher v. Fisher, 2008 ONCA 11, the Court of Appeal, in dealing with self-sufficiency, stated, at para. 53:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.

[15] The big picture of the parties’ pre-separation lifestyle points to an economic partnership, wherein Ms. Nat was without question dependant on Mr. Jennings.

Pre-separation	Ms. Nat	Mr. Jennings
2019 (Separation July 1, 2019)	$26,712	$94,181
2018	$26,489	$82,402
2017	$36,712	$83,236
2016	$35,639	$88,892

[16] Post-separation, the parties reported the following:

Post-separation	Ms. Nat	Mr. Jennings
2019 (Date of separation: July 1, 2019)	$26,712	$94,181
2020	$36,092	$85,942
2021	$35,993	$98.480
2022	$44,057	$96.108

[17] While both parties have reported higher incomes since separation, it goes without saying that, on the whole, Ms. Nat’s standard of living at this interim stage while awaiting trial pales in comparison to the standard of living to which she was accustomed at the time their cohabitation ceased. I, therefore, strongly disagree with Mr. Jennings that a temporary order for spousal support is premature.

Quantum

[18] It is now trite law that “[t]he SSAG have been relied upon as an ideal tool to assist motions judges on temporary spousal support motions:” Fyfe v. Jouppien, 2011 ONSC 5462, 10 R.F.L. (7th) 336, at para. 56. As further explained by Justice Chappel in Fyfe v. Jouppien, at paras. 57-58:

The authors of the SSAG emphasize that the formulas are intended to generate appropriate outcomes in the majority of typical cases, and acknowledge that there are atypical cases in which the formulas and outcomes do not necessarily yield results that are consistent with the support factors and objectives set out in section 15.2 of the Divorce Act. For this reason, the authors carved out a number of categories of departures from the ranges for amounts and durations for spousal support, which they have referred to as "exceptions." They recognized that the list of exceptions set out in the SSAG is not exhaustive, and that there will always be other unusual cases and circumstances that call for departure from the outcomes generated by the formulas.

The most significant exception under the SSAG for the purpose of temporary spousal support motions is the exception for compelling financial circumstances in the interim period. The authors recognized that when spouses separate, the parties' affairs often remain intertwined, with one of the other assuming a disproportionate amount of debts and/or expenses that cannot be reduced. Often, this predicament can be alleviated when property issues are resolved at a later stage in the litigation, relieving the financially burdened spouse of economic hardship. The SSAG recognize an exception for cases where the payor has compelling financial circumstances in the interim period which impact on their ability to pay.

[19] Factors needing to be considered in determining quantum are set out at s. 15.2(4) of the Divorce Act:

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[20] Conditions, means, needs and other circumstances of each spouse in this case include the fact that there the parties have similar levels of assets awaiting for them when equalization is finalized, in the form of pensions or sale proceeds in trust, that they are both reporting more income than they did before separation. There also seems to be some evidence pointing to the fact that Ms. Nat’s living expenses have been reduced since she now lives with her mother, although the question of rent is still being contested.

[21] The parties were married for 28 years. Although Mr. Jennings’ evidence suggests that Ms. Nat is more than capable of working full-time in her field of study (as a medical laboratory technologist), the reality is that the parties were in an economic partnership, and that she had not worked as a full-time lab for a number of years prior to separation.

[22] While the application if of the SSAG’s may not be contentious, the incomes upon which the court should rely certainly are. Mr. Jennings’ income is not in question, but there are questions surrounding Ms. Nat’s income. Namely, Mr. Jennings questions Ms. Nat’s Business cash sales, and whether she is reporting all of her unreported income. On the other hand, he questions whether she is investing all her time and money into a hobby instead of taking steps towards self-sufficiency. For both reasons, Mr. Jennings asks the court to impute Ms. Nat $25,000 in extra income.

[23] With respect to the latter, while self-sufficiency is certainly a consideration and a goal that the courts are meant to support, it is not the primary goal of an interim support order. (See: Decker v. Fedorsen, 2010 ONCJ 618, at para. 28).

[24] With respect to the Business, Mr. Jennings hired an investigation company to assist in providing some insight into Ms. Nat’s Business operations. A report dated December 5, 2019 introduced into evidence describes the Business as a “hobby with financial benefit rather than a full-time business,” and confirms that she sells artwork from home as well as via her Facebook account.

[25] Mr. Jennings also hired a forensic accountant to assist in shedding light into the alleged income received from cash sales. In order to complete his report, however, the forensic accountant still requires additional disclosure from Ms. Nat, which was requested by Mr. Jennings’ counsel in October 2022. Specifically, Mr. Jennings outlines in his affidavit that Ms. Nat continues to ignore the outstanding list of disclosure that has been requested:

a. GST/HSTC notices for the years 2016, 2017 and 2022;

b. The sales summary Excel spreadsheet for 2016;

c. The bookkeeping Excel spreadsheets for 2016, 2017 and 2022;

d. A list of transactions related to the use of Square for 2016 and 2019 up to and including 2022;

e. The Applicant's mileage logs for 2019 up to and including 2022;

f. Copies of all pages of Ms. Nat vehicle mileage logs for all of 2016, up to and including 2022, showing all mileage driven whether for employment, her own businesses, or personal;

g. Copies of the actually invoices submitted by Ms. Nat to her employment for reimbursement from 2016 up to and including 2022;

h. Copies of invoices for any life insurance policies Ms. Nat had for 2016 up to and including 2022 taxation years;

i. The amount of cash received by Ms. Nat if any of the relevant years from the sale of her crafts business not deposited into a bank account; and

j. Actual business financial statements (i.e., balance sheets and income statements for all of the relevant years from 2016 up to and including 2022).

[26] Mr. Jennings takes the position that Ms. Nat’s refusal to address outstanding disclosure disentitles her from interim support. In other words, he submits that she does not come to court asking for relief with clean hands and, in any event, the lack of information prevents the court from making an interim order.

[27] While it may be true that Ms. Nat’s non-compliance with rules of disclosure are cause for concern, this motion is not the proper forum to punish her for her apparent lack of cooperation, and it does not disentitle her to interim spousal support.

[28] For reasons mentioned above, this court finds that interim support is necessary to providing Ms. Nat’s with a lifestyle as close to the one she had prior to separation, and while the court’s information may be incomplete, there is sufficient information to make inferences on a without prejudice basis. Under these circumstances, this is best achieved by averaging the parties’ respective incomes in the final three years of separation.

[29] Accordingly, under these circumstances it is appropriate to rely on the SSAGs using an average income of $86,606 for Mr. Jennings and $29,971 for Ms. Nat. Due to the number of variables outstanding in determining Ms. Nat’s correct income, as well as the lack of detailed information on the roles the parties played within their marriage, as well as the economic disadvantages suffered due to the breakdown of the marriage, on without prejudice basis, this court relies on the mid-range, which points to payment of $2,064 per month.

[30] If, once the information is provided, it is discovered that Ms. Nat’s income is actually much higher, then overpayment will be credited towards the arrears of spousal support Mr. Jennings has been accumulating over the last four years, since he has thus far made no spousal support payments. Conversely, if the income relied upon proves to have been too low, then this will eventually result in a reduction of arrears owed by Mr. Jennings, or at least, in a partial reduction within a final indefinite support order.

Outstanding bill to law firm

[31] Ms. Nat also seeks an order that an outstanding bill be paid out of the sale proceeds being held in trust. The parties agree, and this is ordered on consent.

Costs

[32] In her Notice of Motion, Ms. Nat seeks costs on a substantial indemnity basis. While Ms. Nat ultimately ended up being successful in her motion, and while both sides blame each other for various delays, the lack of cooperation shown by Ms. Nat with respect to her Business has been a significant hinderance to the progress of this file as well as to the information available to this court on this motion. Accordingly, no costs shall be payable by either party on this motion.

Order

[33] This court makes the following temporary order:

• The outstanding invoice of Ducharme Law in the amount of $1,418.29, shall be paid immediately from the sale proceeds of the matrimonial home being held in trust.
• On an interim without prejudice basis pending trial or final resolution, the Respondent, Craig Douglas Jennings, shall pay the Applicant, Helen Nat, $2,064 per month in spousal support commencing November 1, 2023, and every first of the month thereafter.
• The Applicant shall provide to the Respondent, within sixty (60) days, the following Business documents: a. GST/HSTC notices for the years 2016, 2017 and 2022; b. The sales summary Excel spreadsheet for 2016; c. The bookkeeping Excel spreadsheets for 2016, 2017 and 2022; d. A list of transactions related to the use of Square for 2016 and 2019 up to and including 2022; e. The Applicant's mileage logs for 2019 up to and including 2022; f. Copies of all pages of Ms. Nat vehicle mileage logs for all of 2016 up to and including 2022, showing all mileage driven whether for employment, her own businesses, or personal; g. Copies of the actually invoices submitted by Ms. Nat to her employment for reimbursement from 2016 up to and including 2022; h. Copies of invoices for any life insurance policies Ms. Nat had for 2016 up to and including 2022 taxation years; i. The amount of cash received by Ms. Nat if any of the relevant years from the sale of her crafts business not deposited into a bank account; and j. Actual business financial statements (balance sheets and income statements for all of the relevant years from 2016 up to and including 2022).
• The Applicant shall also provide to the Respondent, within sixty (60) days: a. A copy of all pages of her passport; and b. Bank statements for bank accounts in Ms. Nat’s name alone for the relevant years, as requested in previous correspondence.
• Leave is granted to both parties for Rule 20 questioning; and
• No costs shall be payable on this motion.

Justice J.S. Richard September 29, 2023