AMENDED: February 5, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Beatrice Joyce-Corvaglia
Unrepresented
Applicant
- and -
Lawrence Marco Corvaglia
Unrepresented
Respondent
HEARD: December 19, 2022; May 29, 30, 31, June 1 & 2, 2023
T. PRICE, J.
Amended Decision: The text of the original judgment was amended on February 5, 2024. The description of the amendments is appended at the end.
Overview
1The parties began to cohabit on March 1, 2001, married on October 10, 2003 and separated on October 1, 2014. They have one son, age 21 years.
2While together, they were jointly involved in a number of corporate businesses, some owned by the Applicant, Ms. Joyce-Corvaglia, with most related to the manufacture or distribution of shipping pallets and related packaging materials.
3Their separation occurred several months after an incident which occurred on January 9, 2014, when Ms. Joyce-Corvaglia was exposed in a workplace to carbon monoxide, which resulted in her requiring emergency treatment at the hospital.
4While the parties disagree on how long Ms. Joyce-Corvaglia returned to work after this incident, and why she ultimately stopped working, it is clear that she stopped participating in all business activities related to the pallet and packaging industry not long after the carbon monoxide exposure.
5She commenced this application on March 17, 2016. In it, she originally sought a number of heads of relief but, by the time the matter proceeded to trial, almost seven years after it had commenced, her claim was only for spousal support, commencing as of the date of separation. She made her spousal support claim under the Family Law Act, R.S.O. 1990, c. F.3, as amended.
6The Respondent, Mr. Corvaglia, in his Answer and Claim by Respondent, advanced some claims related to their child, as Ms. Joyce-Corvaglia had done in her Application. Both agreed that those issues were moot by the time the trial commenced. He opposed Ms. Joyce-Corvaglia’s claim for spousal support. He also requested a divorce, a claim not opposed by Ms. Joyce-Corvaglia.
7I am satisfied that the grounds for a divorce have been made out and it forms part of my order.
8Mr. Corvaglia, however, did not include a claim for spousal support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. Ms. Joyce-Corvaglia’s former counsel appears not to have considered s. 36(1) of the Family Law Act, which provides that an application for support made under the Family Law Act which has not been adjudicated by the time a proceeding has been commenced under the Divorce Act is stayed, unless the court orders otherwise, because he did not seek to amend her application to include a claim for spousal support under the Divorce Act after Mr. Corvaglia made his claim for a divorce.
9Consequently, this case raises three issues and several subsidiary issues. The three issues raised are:
Issue #1: Should the stay imposed by s. 36(1) of the Family Law Act on Ms. Joyce-Corvaglia’s claim for spousal support as a result of Mr. Corvaglia’s claims under the Divorce Act for a divorce and other, now moot, corollary relief, be lifted?
Issue #2: If Issue #1 is answered in the affirmative, is Ms. Joyce-Corvaglia entitled to spousal support and, if so, on what basis?
Issue #3: If Ms. Joyce-Corvaglia is entitled to spousal support, to what quantum of spousal support is she entitled and for how long?
Order
10For the reasons that follow, I make the following order:
a) On application for a divorce by the Respondent, Lawrence Marco Corvaglia, also known as Lorne Mark Corvaglia, this court orders that Lawrence Marco Corvaglia, also known as Lorne Mark Corvaglia and the Applicant, Beatrice Joyce-Corvaglia, formerly known as Beatrice Marie Joyce, who were married at Chatham, Ontario, on October 10, 2003, be divorced, and that the divorce takes effect 31 days after the date of this order.
b) The stay imposed by s. 36(1) of the Family Law Act with respect to the claim for spousal support by Beatrice Joyce-Corvaglia is lifted.
c) Lawrence Marco Corvaglia, also known as Lorne Mark Corvaglia, owes arrears of spousal support to Beatrice Joyce-Corvaglia for the post-application period commencing in March 2016 and ending September 30, 2023 in the amount of $90,399.00.
d) Commencing October 1, 2023 and on the first day of each month thereafter, Lawrence Marco Corvaglia, also known as Lorne Mark Corvaglia, shall pay Beatrice Joyce-Corvaglia, in reduction of his arrears of spousal support, the sum of $1,500.00 until the arrears are paid in full.
e) Commencing October 1, 2023 and on the first day of each succeeding month for an indefinite period thereafter, Lawrence Marco Corvaglia, also known as Lorne Mark Corvaglia shall pay spousal support to Beatrice Joyce-Corvaglia in the amount of $1,450.00.
f) Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
g) All other claims made by either party against the other are hereby dismissed.
h) Unless, within 14 days of the date of this order, either party makes a request that I make an order with respect to costs, directed to me through the Family Court Judicial Assistants at London (london.courthouse@ontario.ca), in which case more specific directions shall be issued in a follow-up endorsement, there shall be no order as to costs.
Issue #1: Should the stay imposed by s. 36(1) of the Family Law Act on Ms. Joyce-Corvaglia’s claim for spousal support as a result of Mr. Corvaglia’s claims under the Divorce Act for a divorce and other, now moot, corollary relief, be lifted?
Discussion
11Neither party raised this issue in their submissions.
12Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, provides that, “As far as possible, a multiplicity of legal proceeding should be avoided.” As was noted by Justice R.J. Spence in Husein v. Chatoor, 2005 ONCJ 240, [2005] O.J. No. 3292 at paragraph 14, “Section 138 appears to have found a home as a recurring theme in those cases that have considered whether the automatic stay provided for in subsection 36(1) of the Family Law Act ought to be lifted.”
13The cases which have addressed this question have focused on two factors for the court to consider when addressing whether or not a stay imposed by s. 36(1) of the Family Law Act should be lifted. They are:
a) whether a failure or refusal to lift the stay would be prejudicial to the person who would benefit from the stay being lifted; and
b) whether the application under the Divorce Act by the person who would benefit from the stay not being lifted was initiated in bad faith.
14There was no evidence that Mr. Corvaglia brought his claims under the Divorce Act in bad faith. Ms. Joyce-Corvaglia had not sought a divorce, despite the fact the parties had been separated for more than one year. Mr. Corvaglia, when filing his Answer, included a claim for a divorce and as noted, other corollary relief not including spousal support. In my view, the mere fact that Mr. Corvaglia sought a divorce diminishes the prospect of bad faith. Moreover, he did not include a claim for spousal support, so there was no conflict between Ms. Joyce-Corvaglia’s support claim and a similar claim made by Mr. Corvaglia under different legislation.
15As to whether or not Ms. Joyce-Corvaglia would be prejudiced by my refusal to lift the stay, it is apparent that, were I not to do so, she would have no claim for spousal support before the court. Lifting the stay merely would enable me to consider her entitlement to spousal support, and, if awarded, the quantum. The lifting of the stay does not lead inexorably to the granting of spousal support. It simply allows me to consider whether the claim that she made has any validity.
16I find that, if I were not to lift the stay, Ms. Joyce-Corvaglia would be prejudiced because she would be denied my consideration of whether she is entitled to spousal support. Had her former solicitor included a claim for spousal support under the Divorce Act, it would be different. In that circumstance, I could refuse to lift the stay but her claim for spousal support would still be considered because it had also been made under the Divorce Act.
17The question of whether a multiplicity of proceedings is a factor has been addressed in the context of proceedings before the Family Court Branch of the Superior Court of Justice in Ontario.
18In Muslake v. Muslake, [1987] O.J. No. 1414, Justice Van Duzer held that the principle of seeking to avoid a multiplicity of proceedings raised by Section 138 the Courts of Justice Act is not a factor with respect to support claims litigated in the Family Court because it is a unified court which can make support orders under both the Family Law Act and the Divorce Act.
19Furthermore, in Rochester v. Rochester, [2016] O.J. No. 5833, at paragraph 15, Master C.U.C. MacLeod (as he then was) held that, in a case where a judge grants a final order for spousal support that is not a corollary relief order under the Divorce Act, “it must be presumed that the stay triggered by the divorce application is lifted and relief granted under the provincial legislation.”
20I take from that latter comment that, had I not addressed this issue and simply proceeded to consider whether Ms. Joyce-Corvaglia had established an entitlement to spousal support and set an amount, my order would be presumed to have been made under the Family Law Act. While that presumption makes good sense, it is still preferable that the issue be addressed at the outset so that the parties understand why an order has been made.
21As for the fact that the parties never had an opportunity to address this issue, I find that, because it is procedural, it is unlikely that they would have been able to offer me much in the way of submissions to assist me, and my ruling is consistent with decisions made in other cases.
22Accordingly, the stay imposed by s. 36(1) of the Family Law Act with respect to the claim for spousal support made by Ms. Joyce-Corvaglia thereunder is lifted.
Issue #2: If Issue #1 is answered in the affirmative, is Ms. Joyce-Corvaglia entitled to spousal support and, if so, on what basis?
Parties’ Individual Employment Backgrounds
23Ms. Joyce-Corvaglia is now 52 years of age. This is her first marriage. She completed grade 12, then went to a business school, where she took medical courses.
24She began to work for Siemens automotive in 1997. While there, she attended school during the evening, at Siemens’ expense, where she studied manufacturing administration. When she stopped working for Siemens in 2002, she had been cohabiting with Mr. Corvaglia for about a year. He was, at that time, separated from his first wife.
25Mr. Corvaglia, now age 57, was previously married. He began to work for his father in the mid-1980s when his father started a business in Blenheim, Ontario called Allied Pallet. An earlier such venture, started by his father in Cambridge, had been sold in 1982.
26Eventually, together with a partner, Mr. Corvaglia purchased his father’s interest in Allied Pallett. Later, when it appeared that his partner in Allied Pallett was not going to sell his interest to Mr. Corvaglia after he had offered to purchase it, Mr. Corvaglia, with the assistance of his parents, started another business called Challenger Pallet.
27The partner did, however, eventually sell his interest in Allied Pallett to Mr. Corvaglia. This left him with ownership of both Allied Pallett and Challenger Pallett.
28Mr. Corvaglia’s uncle then invested in Challenger Pallet. With that, the ownership of Challenger Pallett was changed, resulting in Mr. Corvaglia’s first wife owning 51% of the shares and Mr. Corvaglia’s uncle owning 49%. With the transfer of his shares to his wife, Mr. Corvaglia ceased to own shares in Challenger.
29Later, Allied Pallett went bankrupt around the time when Mr. Corvaglia’s first marriage ended. While Mr. Corvaglia and his first wife were finalizing their separation, his uncle purchased Mr. Corvaglia’s first wife’s shares in Challenger Pallett. With that sale complete, Mr. Corvaglia’s uncle became the sole shareholder and owner of Challenger Pallet, which he continues to operate.
Parties’ Mutual Ventures
30When Mr. Corvaglia came into the relationship with Ms. Joyce-Corvaglia, he had little money. She had an RRSP with Siemens and a house. She took on the responsibility of administering his child support payments for the four children of his first marriage. She also assisted him financially, including by paying support arrears of $15,000.00 so that Mr. Corvaglia’s driver’s licence would be reinstated.
31In 2001, Ms. Joyce-Corvaglia, who recognized Mr. Corvaglia’s talent and expertise in the pallet industry, saw an opportunity for them to combine their talents – hers, for administration, logistics, purchasing drafting and design, and his, for sales, designing and creating wood packaging – to provide a wide range of services to companies needing access to pallets and packaging.
Incorporation of Joycor Inc.
32As a result, Ms. Joyce-Corvaglia incorporated Joycor Inc. on July 31, 2001. Mr. Corvaglia was not part of the incorporation because of his support obligations.
33The plan was for Joycor to employ the two of them. It was anticipated that Joycor would sell cardboard products, corrugated products, and pallets. Apart from managing sales, Mr. Corvaglia also acted as a middleman for other corporations’ deals in the industry.
34Joycor did exceptionally well. Between 2001 and 2005, when the parties were working out of their home, their commission income was around $1,000.000.00 annually. By 2006, annual revenue reached more than $4.1 million.
35While working for Joycor, Mr. Corvaglia was paid a nominal annual salary of $30,000.00. That portion of Joycor’s profits which were not used to grow the company were, however, utilized by the parties to fund a lavish lifestyle.
36During this period, Mr. Corvaglia’s father started two other companies - Sebe Pallet and Sebe Transportation. Mr. Corvaglia helped his father by selling products for Sebe Pallet. When his father fell ill with cancer, Sebe Pallett went bankrupt. The parties incorporated Sebe Transportation Inc., which took over Sebe Transportation. The combined company was used to transport pallets to purchasers.
37In December 2005, the parties incorporated L.M.B. Enterprises Inc. It was a holding company through which they managed their other businesses.
38Everything changed with the financial downturn in 2008. Joycor’s sales dropped from (U.S.) $130,000.00 per week to (U.S.) $25,000.00 per week. Automobile manufacturers, some of their biggest customers, nearly went bankrupt. Because of expenditures made by Joycor over the preceding years, it had few reserve funds in the bank.
Bankruptcy of Joycor Inc.
39Joycor went bankrupt in 2010. It owed Challenger Pallet over $100,000.00. It was also indebted to other companies with which it did substantial business. Its two biggest creditors, however, were Ms. Joyce-Corvaglia and L.M.B. Enterprises Inc., through which the parties began to conduct business after Joycor’s bankruptcy.
40By the time that Joycor’s bankruptcy was settled, L.M.B. Enterprises Inc. emerged with a $400,000.00 shareholder credit as Joycor’s major shareholder. It also received Joycor’s receivables. The parties used the funds, as they were collected, to continue to fund their lifestyle.
Parties’ Post-Joycor Ventures
41In 2010, following Joycor’s bankruptcy, its assets were sold to a corporation called Cpacx, Inc., which was owned by an American business associate of Mr. Corvaglia named Carl Fontana. He offered to have Cpacx retain the parties to provide sales and management services. They accepted and were paid a management fee through L.M.B. Enterprises Inc.
42In 2012, Ms. Joyce-Corvaglia incorporated Canadian Administrative Systems Inc., of which she was president and director. It offered administrative services to other corporations in the pallet business, some of which they had done business with through Joycor.
43In 2013, Carl Fontana placed Cpacx into bankruptcy. When that occurred, Mr. Corvaglia approached Cpacx’s landlord, Nick Neclaro and asked if he wanted to purchase the assets of Cpacx. Mr. Neclaro agreed to do so and, for that purpose, incorporated a company called E-Z Pak Canada Ltd.
44Both Mr. Corvaglia and Ms. Joyce-Corvaglia were retained to conduct sales for and provide consulting services to E-Z Pak Canada. Ms. Joyce-Corvaglia was engaged with respect to logistics, sales, and manufacturing support, while Mr. Corvaglia was retained with respect to sales, purchasing and manufacturing support. L.M.B. invoiced E-Z Pak Canada for the parties’ services, as it had done with Cpacx.
Ms. Joyce-Corvaglia’s Carbon Monoxide Exposure
45It was while working at E-Z Pak Canada on January 9, 2014 that Ms. Joyce-Corvaglia became extremely ill. She and several other employees were exposed for a substantial period that day to carbon monoxide that was being emitted by faulty propane-fueled forklift. She was diagnosed with carbon monoxide exposure. Mr. Corvaglia described Ms. Joyce-Corvaglia as the “most ill” of all the persons who had been affected by the carbon monoxide that day.
46Ms. Joyce-Corvaglia testified that she felt pain in the back of her head and could barely walk while at work. She was told to go home but did not do so. She thought she had the flu. By about 3:30 p.m. many of the employees were throwing up. They were told to get out of the building. Ms. Joyce-Corvaglia went home and passed out on her driveway. Mr. Corvaglia came home at 5:30 p.m., found her, and took her to the hospital. After being seen and administered oxygen, she was discharged later that evening.
47According to Ms. Joyce-Corvaglia, the physical after-effects she suffered as a result of the carbon monoxide exposure (she called it a “poisoning”) included a twitching face and eye and using her fingernails to dig uncontrollably into her hands and feet.
48As already noted, the parties disagree on how long Ms. Joyce-Corvaglia returned to work for E-Z Pak Canada after her release from the hospital and why she ultimately stopped working there. Ms. Joyce-Corvaglia testified that she tried to work but was unsuccessful because of the negative effects of carbon monoxide on her health. She then applied for WSIB and was turned down because of machinations by Mr. Corvaglia. After some effort, however, her claim was eventually accepted.
49Mr. Corvaglia, on the other hand, claimed that, following her release from the hospital, Ms. Joyce-Corvaglia returned to work at E-Z Pak for several weeks. After some tension developed in the company over who would be overseeing a corporate audit, Ms. Joyce-Corvaglia or Nick Neclaro’s wife, Ms. Joyce-Corvaglia had an emotional meltdown, which led to E-Z Pak terminating its business arrangements with L.M.B. Thereafter, according to Mr. Corvaglia, Ms. Joyce-Corvaglia simply stopped working.
Mr. Corvaglia’s Move to Stax Packaging
50In April 2014, Mr. Corvaglia began to work for a company in London called Stax Packaging. Both he and Ms. Joyce-Corvaglia had met with the owner to seek a business arrangement, but the owner only wanted to engage with Mr. Corvaglia. Stax initially paid him $99,000 per year through L.M.B. In or about September 2014, Stax reduced his weekly salary to $1,600.00, or $83,200.00 per year.
The Parties’ Separation
51Each party gave a narrative which blamed the other for their separation on October 1, 2014. Ms. Joyce-Corvaglia blamed Mr. Corvaglia for interfering in her application for WSIB. He accused her of having had an affair. Whatever the cause, Mr. Corvaglia vacated the matrimonial home when they separated.
The Parties’ Post-Separation Circumstances
Mr. Corvaglia
52Following the parties’ separation, Stax continued to pay L.M.B. for Mr. Corvaglia’s services. Ms. Joyce-Corvaglia still had access to its records and bank account. Mr. Corvaglia claimed that Ms. Joyce-Corvaglia was not paying him through L.M.B. He asked Stax if it would put him on the payroll. Stax refused, so Mr. Corvaglia set up a corporation called L.M.C. Holdings and Stax began to pay him through that corporation.
53Stax then encountered financial difficulties so, in 2015, Mr. Corvaglia approached Diversco, a company located in Cambridge, about a job. When Stax cut his salary in half, Mr. Corvaglia began to work for Diversco. While there, he injured his shoulder and was referred for surgery. After some disagreement about how long he would be permitted to be off work for post-operative recovery, he quit Diversco because of the stress that the disagreement was causing him.
54At that point, Mr. Corvaglia became unemployed. The parties’ son was living with him. Diversco owed him $24,000 in commissions, which he pursued through litigation. He collected both Ontario Works and employment Insurance in 2018.
55Later that year, his uncle, who owned Challenger Pallett, offered him a job. He accepted. He continues to work there as an employee only. He owns no shares in the company.
Ms. Joyce-Corvaglia
56As noted, Ms. Joyce-Corvaglia applied for and, after some time, began to receive Employment Insurance following her departure from E-Z Pak Canada.
57Ms. Joyce-Corvaglia testified that, after she ceased working for E-Z Pak Canada, she also worked for a period cleaning the post office in Glencoe. For this she was paid $800.00 per month through her company, Canadian Administrative Systems Inc., but she said that the money stayed in the company and was used to purchase materials. She testified that she earned nothing from the endeavour. Canadian Administrative Systems Inc. was said to have last earned income in or about June 2016.
58In 2015, she had also applied for Ontario Disability Support Plan (ODSP) benefits and, on July 5, 2016, she was found by the ODSP Disability Adjudication Unit to be a “person with a disability” and entitled to ODSP benefits.
59She alleged that Mr. Corvaglia thereafter began to cause problems for her with ODSP, ultimately causing her payments to be frozen. This, she testified, required her to regularly re-establish her entitlement to the ODSP payments. She was last approved for ODSP in 2022 and continues to receive benefits.
Oral Evidence Relating to Ms. Joyce-Corvaglia’s Health
60Ms. Joyce-Corvaglia testified that she was afflicted by a number of medical issues, and that she was unable to work because of them.
61She testified that she suffered from a medical condition called Delayed Neurological Sequalae (DNS), which was caused directly by her exposure to carbon monoxide in January 2014 and for which she was diagnosed later that year. She described her symptoms as including a general reduction in her mental acuity, a reduced ability to concentrate, and a delay in thought processing.
62She was involved in a motor vehicle accident in 2019, when her vehicle was struck from the side by an impaired driver. The injuries that she suffered caused her constant pain. She said that she had difficulty walking without assistance for a lengthy period. She now receives regular injections into her sacroiliac joint. She testified that she received no statutory accident benefits because the insurer took the position that her injury was caused not by the motor vehicle accident but by DNS. She had a second motor vehicle accident about which no evidence was provided.
63She said that her eyesight was failing, a fact that had been confirmed for her by an optometrist when she attempted to register for a return to school in recent years. She said that she understood that her failing eyesight is related to Parkinson’s disease, with which, she claimed, she has also been diagnosed.
64When Mr. Corvaglia cross-examined Ms. Joyce-Corvaglia about her medical conditions, he only had her confirm that she possessed no recent medical reports which would verify or confirm them.
Documentary Evidence Relating to Ms. Joyce-Corvaglia’s Health
65When the trial commenced in January 2023, Ms. Joyce-Corvaglia was represented by the same counsel who had filed her application in 2016.
66At the Trial Management Conference on July 22, 2022, Justice Sah had directed that “All documentary evidence to be relied on at trial “ was to be served by each party by September 1, 2022. The matter was set to the trial sitting of September 2022. It was not reached during that sitting.
67The trial was then called to begin on December 19, 2022. On December 9, 2022, her former counsel uploaded to Caselines a Notice of Intention to File a Medical Report dated December 9, 2022. There was no affidavit of service provided, so I do not know when or if it was served on Mr. Corvaglia. The medical record was a report from the hospital which she attended on January 9, 2014 after suffering the carbon monoxide exposure.
68Mr. Corvaglia did not object to this document being entered into evidence, so it became an exhibit in the trial.
69On December 19, 2022, after the first day of trial had been completed, counsel for Ms. Joyce-Corvaglia uploaded to Caselines a number of other medical records relating to Ms. Joyce-Corvaglia’s health. They were neither appended to a notice under the Evidence Act, R.S.O. 1990, c. E.23, as amended, nor was there any proof that they had been served on Mr. Corvaglia.
70Many of the documents were incomplete and seemed to consist of individual pages taken from more complete reports. Mr. Corvaglia objected to them being admitted into evidence.
71Ms. Joyce-Corvaglia advised that she had held back the documents because she did not want Mr. Corvaglia to see them prior to trial. She said that she did this because when he had been provided with other personal documents in the pre-trial period, Mr. Corvaglia had released them to third parties who she did not identify to me.
72I refused to allow the documents to be entered into evidence because of the lack of proper and timely notice under the Evidence Act, the lack of proof of service on Mr. Corvaglia, and the fact that the document had been produced long after the September 1, 2022 deadline set by Justice Sah at the Trial Management Conference.
73Following my ruling, Ms. Joyce-Corvaglia discharged her counsel after I gave them time to speak privately. The trial was then adjourned to January 9, 2023. Ms. Joyce-Corvaglia indicated that, during the adjournment, she would be seeking to retain new counsel.
74The trial was adjourned twice more, to April 17 and May 29, 2023. When the trial resumed on May 29, 2023, Ms. Joyce-Corvaglia remained unrepresented. She advised that she was prepared to continue the trial without counsel.
75As she had done before, on May 23, 2023 Ms. Joyce-Corvaglia had uploaded to Caselines a number of documents. Amongst the documents uploaded were other medical reports and records pertaining to her health. Included amongst the medical reports were a couple that seemed particularly pertinent to Ms. Joyce-Corvaglia’s claim that she had suffered long-term consequences from her carbon monoxide exposure on January 9, 2014.
76As had occurred in December 2023, none of the medical documents were accompanied by an Evidence Act notice, nor was any proof of service on Mr. Corvaglia produced.
77As Ms. Corvaglia testified about her health issues, she referred from time to time to some of the documents that she had uploaded to Caselines on May 23, 2023. When I asked her if she wanted to tender the documents for admission into evidence, she told me that she did not. I informed her that if the medical documents were not entered into evidence, she could be left without documentary evidence supporting her claims of having medical problems. I also told her that she would not be able to tell me about her medical issues other than to report what she was told by her physicians, which would not prove her medical conditions. Notwithstanding, Ms. Joyce-Corvaglia maintained that she did not want her medical reports entered as evidence because she did not want Mr. Corvaglia to know about the information they contained. I informed her that he had access to the documents through Caselines.
78When I asked her specifically about the few documents that I thought would support her evidence as to what she understood her conditions to be, Mr. Corvaglia objected to the documents being entered into evidence because of the lack of proper or timely Evidence Act notice. In the circumstances, I agreed with him and declined to allow the documents to be entered as evidence. While this ruling was also consistent with the wishes of Ms. Joyce-Corvaglia, those specific documents, along with a few others, were marked for identification.
Parties’ Positions
Ms. Joyce-Corvaglia
79Much of Ms. Joyce-Corvaglia’s evidence focused on the parties’ joint business ventures. It almost seemed as if having a court find that she was not solely at fault for the financial losses they suffered over the years would have provided her with some sort of vindication for the financial straits in which she now finds herself.
80It also seemed that a finding that she suffered actual pain and medical problems following her carbon monoxide exposure, and continues to do so, would relieve her from whatever burden she continues to carry as a result of what she called the mental “abuse” inflicted on her in the aftermath of that event, and throughout the years leading to this trial, by Mr. Corvaglia.
81She asserted that Mr. Corvaglia left her “with nothing,” and that, by actions that he took following their separation, he “thrust [her] into poverty.”
82She asked for spousal support because she felt that Mr. Corvaglia’s post-separation behaviour was a major contributor to her current financial circumstances. She said that she never wanted to stop working but the medical effects of her exposure to carbon monoxide had compelled her to do so.
Mr. Corvaglia
83In his closing submissions, Mr. Corvaglia indicated that the entire case was about spousal support and entitlement.
84He claimed that Ms. Joyce-Corvaglia is capable of earning an income but that she has failed to pursue any opportunities that would provide her with one. He said that she is insightful and that she has no learning disabilities which would prevent her from using her intellectual capabilities to earn an income. He pointed to Ms. Joyce-Corvaglia being well educated.
85He said that her medical claims arise from her having been a victim of crime following the parties’ separation and from post-separation motor vehicle accidents. He also noted the absence of up-to-date medical evidence to support the various medical conditions about which Ms. Joyce-Corvaglia testified.
86That noted, Mr. Corvaglia also claimed that Ms. Joyce-Corvaglia has taken no responsibility for the financial reverses suffered by the parties over the years following the bankruptcy of Joycor. He claimed that she used all of their personal funds for the businesses, in all of which she was the sole shareholder. He claimed that he received nothing back when those businesses failed or were closed. He claimed that Ms. Joyce-Corvaglia owes him $300,000.00.
Analysis
87Despite the claims by Mr. Corvaglia about what he regards as Ms. Joyce-Corvaglia’s indebtedness to him, this case was never completed or presented as being about property issues. The evidence shows that, throughout the marriage, the parties were engaged in business together, regardless of the ownership structure of the various corporations to which they carried out those businesses. How gains or losses from the businesses were apportioned, and who might be indebted to whom as a result of their failure, were not issues presented to me for consideration.
88It was clear from the outset, based upon the parties’ pleadings, that this is a case about support and, from their evidence, that the parties tacitly, if not expressly, agreed that Ms. Joyce-Corvaglia was not seeking spousal support on a compensatory basis. No evidence was presented to support a claim by Ms. Joyce-Corvaglia for compensatory support based on foregone employment opportunities or the assumption of the primary childcare role while their son was young. Her case, instead, focused almost entirely on the successes the parties had while engaged in business together, and the disastrous after-effects that resulted from her exposure to carbon monoxide while engaged in one of those joint business ventures on January 9, 2014.
89In his submissions, Mr. Corvaglia focused on whether or not Ms. Joyce-Corvaglia was in legitimate need of spousal support. Presumably because he believed this case was being litigated under the Divorce Act, Mr. Corvaglia quoted at length from the decision of the Supreme Court of Canada in Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14 to support his claim that Ms. Joyce-Corvaglia had failed to meet the requirements to support a successful claim for needs-based spousal support.
90Although Mr. Corvaglia did not cite them, the Supreme Court’s Reasons in Bracklow included these comments (excerpted from paragraphs 13, 36, 42, 43 and 48:
“…may a spouse have an obligation to support a former spouse over and above what is required to compensate the spouse for loss incurred as a result of the marriage and its breakdown?...While the law has evolved to accept compensation as an important basis of support and to encourage the self-sufficiency of each spouse when the marriage ends, where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself….A spouse's lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or … ill-health. …[T]he [Divorce] Act … retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough.…Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.”
91Because the support claims are being advanced under the Family Law Act, the purposes of a spousal support order set out in ss. 33(8)(a) and (c), and (d) thereof are pertinent to this case. They provide that spousal support orders should:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;…
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) “relieve financial hardship” that has not been alleviated by an order concerning either family property or the matrimonial home, neither of which was at issue in this case.
92I find that the purpose of a spousal support order found at s. 33(8)(d) of the Family Law Act encompasses those circumstances addressed by the Supreme Court in Bracklow, particularly a situation where the claimant spouse’s “financial hardship” “arise[s] from … ill-health.”
93The case presented by Ms. Joyce-Corvaglia contrasted the success that the parties had while working together, including the lifestyle they enjoyed, with her current circumstances, which she attributed entirely to a number of medical conditions.
94There can be no doubt, and the parties agree, that while they were together and enjoyed the economic fruits of their success, their joint lifestyle far exceeded that which each of them currently experiences.
95Moreover, each of the parties brought to their joint success complementary skillsets. As Ms. Joyce-Corvaglia put it, Mr. Corvaglia’s strength was in sales and hers was in administration.
96With the alleged loss of her administrative abilities as a result of her medical conditions, Ms. Joyce-Corvaglia claimed that her capacity to contribute to their joint success disappeared. Without Mr. Corvaglia remaining in a relationship with her and contributing his income to their support, Ms. Joyce-Corvaglia claimed that she was left virtually destitute.
97Ms. Joyce-Corvaglia’s claim for spousal support is based upon a request that the court recognize both her contribution to the parties’ successes and the negative economic consequences for her of the relationship having come to an end at a time when she was medically unable to support herself by relying on her own skills and abilities.
98That being the case, a significant question that I must consider is whether Ms. Joyce-Corvaglia presented sufficient evidence to support a successful claim for needs-based spousal support based on a medical inability to work.
99As the Court of Appeal held in Kallaba v. Bylykbashi, 2006 3953 (ON CA), [2006] O.J. No. 545, it does not matter that a support claimant’s medical condition arose from a cause unrelated to the marriage of the parties, if it is established that the cause rendered the claimant medically incapable of maintaining himself or herself. Therefore, while a need unrelated to the marriage can provide a non-compensatory basis for spousal support, “the need must be established as a matter of fact.” That can be done by evidence describing the medical condition and how it created a situation of need.
100As I have noted, while she spoke at some length about her health and what she understood to be the cause(s) of her current medical circumstances, Ms. Joyce-Corvaglia specifically declined any opportunity to rely upon medical reports which spoke to the conditions about which she provided her oral evidence. Had she chosen otherwise, she would have faced an uphill battle in having those documents admitted into evidence because of her noncompliance with the notice requirements of the Evidence Act, and the shortness of the service of those documents upon Mr. Corvaglia.
101There are cases which have held that, absent medical reports which support a party’s claim about a specific medical condition afflicting them, a court can either move cautiously before accepting or acting upon the claimant’s evidence alone (Cole v. Creith, [1994] O.J. No. 3282 (C.A.),1 or reject the claim (Pitt v. Pitt, [2019] O.J. No. 623 (S.C.J.)2
102However, it appears that a court is not absolutely prohibited from making an order for spousal support based on need arising from a medical condition or conditions despite the absence of corroborative medical reports. For example, the Divisional Court held in Naegels v. Robillard, [2020] O.J. No. 3018 that it is within a trial judge's discretion to order spousal support based on inability to work without independent medical experts or reports.
103Therefore, it is critical that I consider the parties’ evidence in the context of Ms. Joyce-Corvaglia’s claim that she is medically unable to work and requires support.
104As I have already noted, Mr. Corvaglia did not challenge any of Ms. Joyce-Corvaglia’s evidence about her various conditions, other than to have her agree that she had failed to produce any medical evidence to support her claims.
105He also agreed, as I think he was right to do, that she had suffered exposure to carbon monoxide while working in the pursuit of their business on January 9, 2014.
106Mr. Corvaglia’s position is that, notwithstanding her exposure to carbon monoxide, Ms. Joyce-Corvaglia is far less medically compromised than she asserts, if at all, and that she is quite capable of earning an income of a sufficient amount to fully support herself.
107To that point, he specifically relied upon two Requests to Admit that he had served on Mr. Joyce-Corvaglia’s previous solicitor, the contents of which, her former solicitor informed the court at the outset of trial, were admitted by Ms. Joyce-Corvaglia.
108Those Requests to Admit detailed the following about Ms. Joyce-Corvaglia at the times that the articles cited in the Requests to Admit were published:
2008 (Chatham-Kent 4 Business)
“Joycor was named by Profit Magazine as Canada’s fastest growing company in the top 100 businesses run by women… By 2006, Joycor’s revenue of more than $4.1 million earned Ms. Joyce-Corvaglia spot No. 86 on Profit Magazine’s 2007 ranking of the 100 largest and most successful small business firms owned and operated by women.”
Ms. Joyce-Corvaglia “has a track record of career success, landing management roles with many past employers. In Joycor’s second year of operation, Joyce-Corvaglia and her husband Lorne earned close to $1 million in revenue from their home office.”
LinkedIn Profile (2018) (Summary)
Over 20 years in Tier One Automotive Supplier Experience
From MFG Auto parts Corporation to Owner/Operator for Joycor Packaging (numerous national awards and recognized achievements) with customer satisfaction rating 100 percent
Sebe Transportation Inc. 2006
Operation purchase with operating for Joycor Inc. and CH Robinson high profile dedicated client with 98 percent satisfaction rating
Cpacx-Director in Chief Administrative Officer
Handling merger and reporting off weekly/monthly status to US-based owners
Canadian Administrative Systems
Staffing, Payroll, Contracts, Training, Gov’t. Cleaning contracts certified
EZ PACK (sic) Canada
Handling merger; MFG/Logistics/sales Team Member
SnoodleSheets/Inventor
Successfully achieved CAN Patent rights on own efforts
Can consult Small Entity Patent Applications
Current Status/Filed for US Patent Application
109Ms. Joyce-Corvaglia submitted that the various medical conditions which, she claimed, afflict her also prevent her from seeking or holding meaningful employment.
110In order to assess whether Ms. Joyce-Corvaglia suffers from some or all of the medical conditions that she says affect her, I begin with an assessment of her credibility.
111On the issue of the parties’ businesses, their evidence aligned in many respects. They were consistent in detailing the corporations under which they carried on business. Their primary difference in that regard related to whether or not Mr. Corvaglia, while not being a corporate officeholder, was treated as more than a mere employee.
112I am satisfied, based upon the documentary evidence entered into evidence, that L.M.B. was clear when rendering invoices to both E-Z Pak Canada and, initially, until he changed the billing arrangement, with Stax, that the amounts for which those corporations were being invoiced monthly included fees for services rendered by Mr. Corvaglia. While I cannot determine whether or not Ms. Joyce-Corvaglia passed any of that income on to Mr. Corvaglia, other than in the form of the $30,000.00 income that he said he was paid by L.M.B., it is clear, by his own admission, that he was a full beneficiary of the lifestyle that the corporations’ incomes provided Ms. Joyce-Corvaglia. He was, therefore, treated as more than a mere employee by Ms. Joyce-Corvaglia.
113As to Ms. Joyce-Corvaglia’s credibility concerning her medical issues, I first take into account the following helpful review of some of the principles pertinent to assessing witness credibility, as articulated by Justice D. Chappel in Kinsella v. Mills, 2020 ONSC 4785, [2020] O.J. No. 3668.
69 The case-law has highlighted that the assessment of credibility and reliability is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. c. Gagnon, 2006 SCC 17, at para. 20, it is not always possible "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" (see also R. v. M.(R.E.), 2008 SCC 51, at para. 49; Hurst v. Gill, 2011 NSCA 100, at paras 18-19). The complexity of the task is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness' evidence (see R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22). Despite the challenges inherent in the task, the case-law has articulated numerous factors which the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9; R. v. Norman, 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.); R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff'd 2012 BCCA 296 (C.A.); and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538, at paras. 34-40 (S.C.), these considerations include the following:
Were there inconsistencies and weaknesses in the witness' evidence, including internal inconsistencies or evidence of prior inconsistent statements?
Was there a logical flow to the evidence?
Were there inconsistencies between the witness' testimony and the documentary evidence?
Were there inconsistencies between the witness' evidence and that of other credible witnesses?
Is there other independent evidence that confirms or contradicts the witness' testimony?
Did the witness have an interest in the outcome, or were they personally connected to either party?
Did the witness have a motive to deceive?
Did the witness have the ability to observe the factual matters about which they testified?
Did they have a sufficient power of recollection to provide the court with an accurate account?
Is the testimony in harmony with "the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?" (Faryna, at para. 10)
Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness' evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (Jeng, at paras. 53-54).
114I address the final point listed by Justice Chappell first. This trial was conducted virtually. Mr. Corvaglia had requested that it occur in that manner because he resides in Chatham, Ontario and indicated on more than one occasion that, if he had to travel daily to London to participate in the trial in person, it would cause him difficulties with his employment.
115Ms. Joyce-Corvaglia did not oppose the request. In fact, she joined Mr. Corvaglia in his request but for different reasons. She claimed to be medically unable to attend a trial in London from her home in Chatham because of her medical conditions.
116Consequently, both parties appeared at the trial virtually. Mr. Corvaglia appeared to be in an office. Ms. Joyce-Corvaglia appeared to be in her bedroom, testifying while reclining or sitting in her bed.
117I observed her struggle at times to read documents, which would be consistent with her undisputed claim that her eyesight is failing. She often reviewed documents while holding a magnifying glass.
118While these are, perhaps, minor points, I did not sense any insincerity on the part of Ms. Joyce-Corvaglia about her claimed eyesight failure.
119While some of the other factors cited by Justice Chappell are perhaps more relevant to witnesses other than the parties themselves, having observed both parties, it was my impression that both were making reasonable, good faith efforts to recount the key elements of their case honestly.
120Ms. Joyce-Corvaglia’s oral testimony was somewhat rambling and difficult to follow on many occasions. However, to the extent that it had a flow to it, it lacked inconsistencies. As I have already noted, her evidence was also bolstered by documentary evidence, particularly in respect of business issues.
121I have already commented on Ms. Joyce-Corvaglia’s decision not to enter into evidence medical reports that may have supported her claim of a medical inability to work.
122I found that Ms. Joyce-Corvaglia provided her evidence as best she could, but while it could not be described as straightforward, it was candid. I did not find her to be evasive, strategic, or hesitant. She was biased because this is her claim. That said, she also praised the knowledge of Mr. Corvaglia about the pallet business, and his abilities to develop business relationships with their clients. She did not hesitate to give Mr. Corvaglia credit when she felt it was due him, something that he seemed unwilling to do when it came to speaking of her.
123I next turn to Justice Chappell’s question about whether or not Ms. Corvaglia had a motive to deceive the court about her medical condition. When assessing whether that situation exists, I connect the question with the evidence of Ms. Joyce-Corvaglia’s financial circumstances. This is, after all, a claim for spousal support. As Ms. Joyce-Corvaglia testified, and for which there is supportive documentary evidence, she is in receipt of and supporting herself by ODSP benefits.
124In order to qualify for ODSP benefits, a claimant must be a “person with a disability,” which is defined in section 4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, as follows:
4(1) A person is a “person with a disability” for the purposes of this Part if,
(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;
(b) the direct and cumulative effect of the impairment on the person's ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and
the impairment and its likely duration and the restriction in the person's activities of daily living have been verified by a person with the prescribed qualifications.
125In Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, the Ontario Court of Appeal held that the issue on an appeal to the Social Benefits Tribunal from a denial of benefits under the Ontario Disability Support Program Act, 1997 by the Director of the Ontario Disability Support Program on the basis that an applicant is not a "person with a disability" within the meaning of s. 4(1) of the Act is not whether the appellant "can cope on a day to day basis" but, whether she can function in the workplace, function in the community or attend to her personal care.
126It is clear on the documentary evidence that:
a) in 2016, Ms. Joyce-Corvaglia was found by the “Disability Adjudication Unit” of the Ontario Disability Support Program to be a person with a disability; and
b) in 2022, having, at some point after 2016 been denied ODSP benefits, and having appealed that denial to the Social Benefits Tribunal, the “Disability Adjudication Unit” of the Ontario Disability Support Program, having “reviewed the additional medical information [Ms. Joyce-Corvaglia] provided about [her] disability” reversed the decision it had made to deny her benefits, found her to be entitled to ODSP benefits, and made clear that it was not scheduling another review of her disability claim at that time.
127I also take into account the uncontradicted evidence of Ms. Joyce-Corvaglia that Mr. Corvaglia did interfere in her claims for ODSP and in her claim for employment insurance. I reiterate that while Mr. Corvaglia commented as Ms. Joyce-Corvaglia was testifying that what she said was untrue, he did not make such statements under oath when testifying, nor did he challenge her in cross-examination about her assertions in that regard.
128I return to the question of whether Ms. Joyce-Corvaglia had motive to deceive the court about her medical condition. If she did, she persisted in pursuing that deceit for seven years, from the time she commenced this application in 2016 until it was tried in 2023. Over that period, apart from some brief periods of attempted self-employment, she was either receiving or pursuing disability benefits. They are hardly generous.
129I had no evidence about whether Ms. Joyce-Corvaglia was ever aware or, if she was, when she became aware, that “[u]nder the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, spousal support is treated as income and deducted dollar-for-dollar from an ODSP income recipient's support.” (Naegels v. Robillard, [2020] O.J. No. 3018 at para. 12 (Div. Ct.))
130I find that, if Ms. Joyce-Corvaglia did not know that spousal support would be deducted from her ODSP income, while she may have intended to deceive the court about her medical condition, she did so to potentially little end and if she did know, her pursuit of spousal support will prove to have been a partially futile effort because of the claw back in her ODSP.
131Consequently, I find that, whether or not Ms. Joyce-Corvaglia intended to deceive the court about her medical conditions, she is not likely to benefit financially in a large way from that deceit. However, I am satisfied, on the evidence, and my impressions of Ms. Joyce-Corvaglia, developed through my assessment of her evidence and her general demeanour, that she did not at any point intend to deceive the court when she testified about what she understood to be her medical conditions and when describing the symptoms which affect her.
132I also find that, to the extent that her presentation supported claimed symptoms, such as brain fog, Ms. Joyce-Corvaglia repeatedly exhibited signs of a shortened attention span and an inability to focus on the key issues in the case, constantly veering into descriptions of the personal hurt she felt because of the manner in which both the businesses and the marriage failed, despite repeated admonishment that those were not issues upon which I could adjudicate.
133In determining whether I find Ms. Joyce-Corvaglia’s claim of the medical disability negatively affecting her ability to seek or hold employment to be credible, I also bear in mind the fact that the woman who presented herself for trial in this case, and who, for upwards of seven years, has either received or pursued social benefits in order to support herself is the same successful woman described so glowingly in the 2008 article entered into evidence, on consent, by Mr. Corvaglia.
134I have to question why, if she was not afflicted by medical conditions which negatively affected her ability to work, Ms. Joyce-Corvaglia would choose to accept social benefits rather than put her obvious talents to work in pursuit of an income that could potentially place her in a much better financial position than she is at present.
135Furthermore, I find that evidence of Ms. Joyce-Corvaglia’s need, like that of the wife in MacKinnon v. MacKinnon, (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), is apparent from her reliance on government benefits.
136For all of these reasons, I find that Ms. Joyce-Corvaglia is unable to work because of a medical condition or medical conditions which include failing eyesight and loss of mental acuity. These conditions have diminished Ms. Joyce-Corvaglia’s income potential and she is, as a result, in need of spousal support. She is, based on the evidence, suffering financial hardship and has been for some time.
137In the result, I find that Ms. Joyce-Corvaglia is entitled to spousal support because this is one of those cases, described by the Supreme Court in Bracklow, where “circumstances” mandate the court requiring a healthy former spouse to support a disabled former spouse because “justice and considerations of fairness…demand no less.”
Issue #3: If Ms. Joyce-Corvaglia is entitled to spousal support, to what quantum of spousal support is she entitled and for how long?
Imputing Income
138Mr. Corvaglia submitted that, if he did not succeed in convincing me that Ms. Joyce-Corvaglia is not entitled to spousal support, the amount awarded to her must take into account what he claimed is her underemployment.
139At paragraph 28 of his decision in Abumtar v. Hamda, [2021] O.J. No. 1487, a case concerning child support, Justice A. Pazaratz listed a number of principles which apply when being asked by a party who may be required to pay support to impute income to a support recipient. I cite this case, even though it addressed child support, because “the principles that apply in determining whether to impute income are the same in both child support and spousal support cases.” (Kinsella v. Mills, 2020 ONSC 4785, [2020] O.J. No. 3668 at para. 163)
140The principles enumerated by Justice Pazaratz (foundational citations omitted) included the following:
c. Section 19 of the Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
d. In Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 the Ontario Court of Appeal set out the following three questions which should be determined by a court when considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of the party's reasonable education or health needs?
If not, what income is appropriately imputed?
e. The onus is on the party seeking to impute income to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.
g. A person is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning.
h. If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there.
i. If intentional under-employment is established, the onus shifts to the payor to establish an acceptable reason.
k. Section 19(1)(a) enumerates four distinct exceptions to imputing income, even where intentional underemployment or employment is found, one of which is “the reasonable health needs of the spouse.”
p. If intentional under-employment is established - and if the payor cannot establish a reasonable explanation - then the court must decide what income should properly be imputed in the circumstances.
q. The court has a broad discretion to impute income where a party is not working to their potential. The court must consider the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court must determine what income the party could earn if he or she worked to capacity.
s. Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected must be grounded in the evidence.
141Because Ms. Joyce-Corvaglia is and has been in receipt of ODSP benefits, to this list of principles I must add the following, taken from the decision of Justice A. Mitchell in Pitt v. Pitt, [2019] O.J. No. 623:
A decision of the Social Benefits Tribunal to pay ODSP benefits establishes, only, that the claimant has a disability which limits the type of work that he or she can do…
Absent the evidence of an expert (treating physician or litigation expert) relating to a support claimant’s medical diagnoses and the impact of any medical conditions on the support claimant’s ability to work, the court cannot conclude that the support claimant is absolutely precluded from working.
To be found unable to work on at least a part time basis, a support claimant must produce evidence of a diagnosis of a mental or physical disability precluding them from working on a part time basis.
142It is in respect of these latter principles enunciated by Justice Mitchell that the absence of medical reports to support her claims of medical inability to work most affect Ms. Joyce-Corvaglia.
143When the principles regarding imputation of income listed by Justice Pazaratz are considered in conjunction with those listed by Justice Mitchell, I must conclude that Ms. Joyce-Corvaglia is intentionally underemployed. Clearly, she is earning less than she is capable of earning, given her employment history, education, qualifications, and experience. While that under-employment stems from one or more medical conditions, she has not established, by proper evidence, the extent to which she is medically compromised from participating in the labour force. The fact that she is in receipt of ODSP benefits only goes part of the way to excusing her from needing to be employed, and she has produced no evidence of “a diagnosis of a mental or physical disability” which precludes her from working on, at least, a part time basis.
144To these factors is added the evidence of Ms. Joyce-Corvaglia that she was able to work after her exposure to carbon monoxide, since she cleaned the post office in Glencoe, Ontario for a period, and was doing some work painting before her first motor vehicle accident, for which she must repay ODSP for overpaid benefits.
145The question then becomes, what level of income should be imputed to Ms. Joyce-Corvaglia because of her underemployment? As Justice Pazaratz noted, I cannot arbitrarily select an amount as imputed income. Any amount that I impute to her as income must be based on evidence.
146What the evidence at trial showed was that, for some years before her exposure to carbon monoxide, Ms. Joyce-Corvaglia was withdrawing money from L.M.B. Enterprises Inc. based on its $400,000.00 shareholder credit as the bankrupt Joycor’s major shareholder. Apparently, these funds were not treated by Ms. Joyce-Corvaglia as income when withdrawn from L.M.B. based, she said, on advice received from the lawyer and accountant involved in structuring the relationship between L.M.B. and Joycor. Accordingly, in the years most immediately prior to the parties’ separation, Ms. Joyce-Corvaglia was filing tax returns which showed her earning no income.
147In November 2013, which was two months before her Ms. Joyce-Corvaglia’s exposure to carbon monoxide, L.M.B. invoiced E-Z Pak Canada for $8,250.00 for one month of “sales and consulting fees” for both Ms. Joyce-Corvaglia and Mr. Corvaglia, and amount which, based on the evidence of Ms. Joyce-Corvaglia, was attributable equally to each. This suggests that the fee chargeable per month for each was $4,125.00.
148Without knowing more, based on this evidence it seems reasonable for me to conclude that Ms. Joyce-Corvaglia’s annual income in the year before her exposure to carbon monoxide was at least $50,000.00.
149In 2014, however, the year that she was exposed to carbon monoxide in January, and working little thereafter, Ms. Joyce-Corvaglia’s Line 150 income was assessed by the CRA as being $7,423.00.
150Since I accept that Ms. Joyce-Corvaglia is now not able to work full time, and since she was capable of earning some employment income over the years after 2014, although the records she produced did not provide me with much clarity on the sources of her income, based on her Notices of Assessment and Reassessment and her responses to Mr. Corvaglia’s cross-examination about her annual incomes, I find it to be reasonable to impute to her an annual income of at least $9,000.00 for the full years after her exposure to carbon monoxide. I do not include 2014, since she was off work until April, and did not appear to work thereafter in that year. It was also unclear if she received E.I. in 2014.
151In arriving at the imputed annual income amount of $9,000.00, I first have regard to the fact that Ms. Joyce-Corvaglia was paid $800.00 per month for those months that she cleaned the post office in Glencoe, Ontario. I did allow some reduction to account for the cost of cleaning supplies, since she testified that she had to purchase them. She provided me with no information as to the amount that she earned painting. She also testified to receiving some Employment Insurance, an amount which needs to be grossed up for income determination purposes. However, without a base amount, I cannot gross up any specific amount. The amounts that she earned in the years after 2014, not including 2016 and 2020, which will be discussed below3, only once exceeded $7,000.00 and then, by only $380.00. Therefore, by imputing an income to her of at least $9,000.00, I am adding to the income amounts that I have been able to discern from her evidence, amounts ranging from $9,000.00 (2019) to $1,620.00 (2021).4
152I must confess to being troubled by the dichotomy between Ms. Joyce-Corvaglia’s absolute inability to work following 2014, and the level of her Line 150 income for 2016. It may be that, in that year, she received ODSP income that, for tax purposes, is included on her income tax return, only to be later deducted, and which does not count as income for spousal support purposes under Schedule III of the Guidelines. However, because she failed to produce her income tax return, I could not assess those issues on the limited evidence she provided.
153She bore the onus of proving her case. That includes the onus of proving any deductions from income to which she was entitled under Schedule III of the Guidelines. I have given her credit where it is supported by the evidence. In other cases, I have not.
154In making my determination of her annual income, and deciding to use an average for some years, I also rely on my findings that Ms. Joyce-Corvaglia’s various medical conditions have combined to make her feel so unwell that she is essentially unable to work at any employment, and that, were she to be healthy, her educational and employment history strongly suggest that she would be aggressively pursuing remunerative employment opportunities instead of subsisting on social assistance benefits.
Ms. Joyce-Corvaglia’s Claim for Support Prior to Issuance of the Application
155Section 34 of the Family Law Act sets out the court’s power when making a spousal support order under the Family Law Act. They include:
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; and
(f) requiring that support be paid in respect of any period before the date of the order.
156The wording of s. 34(f) makes very clear that support can be ordered for “any period” before the date of the order. Of course, a start date for spousal support would commence, at its earliest, with the date of separation.
157Ms. Joyce-Corvaglia’s application was issued on March 17, 2016. In it, she sought, and continues to seek, spousal support under the Family Law Act from October 1, 2014, which was the date of separation. She also sought, and continues to seek, ongoing spousal support.
158In MacKinnon, the Ontario Court of Appeal held that, “[a]bsent any unusual reason arising from the factors and objectives set out in the Divorce Act, an applicant who requests financial disclosure in preparation for the negotiation or litigation of a support claim, and who then proceeds reasonably to a disposition of the claim, presumptively is entitled to prospective support from the date of notice that a support claim is being pursued,” which it labelled “the usual commencement date for support.”
159The leading case on the issue of spousal support which reaches back in time from the date of an order is that of the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] S.C.J. No. 10. There, the claim for spousal support was made under a British Columbia statute which, like the Family Law Act, permitted the court to order the payment of support for a period before the date of the order. In Kerr, the Supreme Court set out, by analogy to the principles governing retroactive child support claims it had settled in D.B.S. v. S.R.G., 2006 SCC 37, the principles to apply when considering a claim for retroactive spousal support.
160Justice D. Chappel discussed the application of those principles in A.E. v. A. E., [2021] O.J. No. 6943, writing, at paragraph 476:
In Kerr, the Supreme Court of Canada held that the four general factors identified in D.B.S. in the context of retroactive child support claims apply equally to retroactive spousal support claims. As adapted to the spousal support analysis, these factors are: a) the reasons for the delay in seeking spousal support; b) the conduct of the payor spouse; c) the needs of the spousal support claimant; and d) any hardship that a retroactive award would occasion on the payor spouse. However, it emphasized that the retroactive spousal support analysis must take into consideration the fact that spousal support has a very different legal foundation than child support, as well as the different legal principles and objectives that underlie spousal support and child support. Specifically, it highlighted that the duty of both parents to support a child arises at birth, whereas there is no automatic entitlement to spousal support or obligation on the part of a spouse to look out for the other spouse's legal interests. In addition, it noted that child support is the right of the child rather than that of one of the parties claiming it on the child's behalf. Third, it noted that the concerns about delay and notice in pursuing support are less pressing in the child support context than for spousal support, since the introduction of the Guidelines has provided a great deal of clarity to litigants about their child support obligations, whereas spousal support remains a highly discretionary matter. With respect to delay, the court emphasized that in child support cases, the prejudice caused by delay flows to the child rather than to the party advancing the claim. For these reasons, the court concluded that concerns about notice, delay and misconduct generally carry more weight in relation to claims for retroactive spousal support than for retroactive child support (at para. 208).
161I now turn to a consideration of the four Kerr factors noted by Justice Chappel and make the following findings.
a) Ms. Joyce-Corvaglia did not provide any explanation for her delay of 17 months in commencing this proceeding. While I might surmise that the delay had to do with her health, in the absence of any evidence by her to that effect, I cannot conclude that the delay was caused solely by her health, if it was at all. I do note, however, that Mr. Corvaglia deducted spousal support payments of $13,000.00 on his 2015 income tax return, which would provide some explanation for the delay in Ms. Joyce-Corvaglia commencing her claim for spousal support.
b) As for the conduct of Mr. Corvaglia, I again point to the uncontradicted evidence of Ms. Joyce-Corvaglia that he interfered in both her application for Employment Insurance after she lost her employment with E-Z Pak Canada, and again, on more than one occasion when she sought ODSP benefits. Each episode of interference would have meant a delay in Ms. Joyce-Corvaglia receiving public funding to support herself. That behaviour, however, would have been somewhat offset by the spousal support that Mr. Corvaglia paid to her in 2015.
c) I have already discussed Ms. Joyce-Corvaglia’s needs, which were driven largely by her inability to work sustainedly due to medical reasons.
d) As for any financial hardship that a retroactive order might visit upon Mr. Corvaglia, while he did not make any submissions in this regard, I do note that he testified that his only income source was his employment with Challenger Pallett. This employment came about as a result of an offer by his uncle, following a period of three years (2015-2018) when Mr. Corvaglia, on his uncontradicted evidence, suffered a physical injury which required surgery, left his job when his employer was less than sympathetic to his plight, had to pursue unpaid commissions through litigation, and ended up living for a period on either Ontario Works or Employment Insurance.
162In order to assess whether a retroactive order might visit financial hardship on Mr. Corvaglia, I must first determine what amount, if any, he would owe, absent any adjustment, to Ms. Joyce-Corvaglia for the period between the date of separation and the date that her application was issued on March 17, 2016.
Income Information
Ms. Joyce-Corvaglia
163When determining Ms. Joyce-Corvaglia’s income for support purposes, ODSP payments are not to be treated as income when calculating spousal support. (Naegels v. Robillard, at para. 13).
164Based on the information that was provided by her, including amounts confirmed by her during cross-examination by Mr. Corvaglia, I find Ms. Joyce-Corvaglia’s Line 150 income for the years 2014, 2015, and 2016 to be as follows:
2014: $ 7,423.00
2015: $ 9,000.00 (imputed amount used instead of claimed income of $4,500.00).
2016: $22,510.00 ($28,796.005 minus Victim’s Compensation of $6,286.00 nets $22,510.00)
Mr. Corvaglia
165Based on the income documents filed by him, Mr. Corvaglia had a Line 150 income as follows in the following years:
2014: $70,000.00.
Mr. Corvaglia did not produce evidence of his income in 2014. However, before April 2014, E-Z Pac Canada was paying LMB Enterprises Inc. the sum of $4,125.00 per month for his services. He claimed that he was only being paid $30,000.00 per annum by LMB, so I find that, between January and April 2014, Mr. Corvaglia earned $10,000.00. As of April, 2014, he was the sole income earner for the family, and was being paid $99,000.00 per year at Stax Packaging, through LMB. That was reduced in September 2014 to $83,200.00 per annum. Taking the income changes into account, I find that, for 2014, Mr. Corvaglia’s income amounted to $70,000.00.
2015: $62,943.00
2016: $42,225.00
Support Payable: October 2014 to March 2016
166Based on the incomes I have determined that each of the parties earned in 2014, 2015 and 2016, the monthly spousal support amounts suggested by the Spousal Support Advisory Guidelines for the years 2014, 2015 and 2016 are:
Low Mid High
2014: $1,098.00 $1,281.00 $1,464.00
2015: $ 944.00 $1,101.00 $1,259.00
2016: $ 345.00 $ 403.00 $ 460.00
Determining the Amount to be Paid
167The Spousal Support Advisory Guidelines: Revised User’s Guide (April 2016; Rogerson and Thompson) indicates the following on Page 46:
The depth of need can be a strong non-compensatory factor pushing amounts higher in the range: Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, need of wife, between mid and high range)
168Justice D. Chappel discussed the issue of quantum of support in A.E. v. A.E., [2021] O.J. No. 6943, writing:
473 The quantum and duration ranges generated by the SSAG simply provide a general framework for the exercise of the court's discretion, and it is therefore open to the court to go above and below the ranges in appropriate circumstances (Alalouf v. Sumar, 2019 ONCA 611 (C.A.), at paras. 21 and 24; Naegels, at para. 14). Ultimately, the factors and objectives of spousal support as set out in sections 15.2(4) and (6) of the Divorce Act are the guiding considerations. The SSAG, the Revised User's Guide and the caselaw have highlighted a number of principles and factors flowing from those sections that may be particularly useful to the court in determining the appropriate quantum and duration of support either within or outside of the SSAG ranges. These include the following:
The basis for spousal support entitlement is a critical factor in determining quantum, duration, and location within the SSAG ranges. For instance, a strong compensatory claim may favour a spousal support award at the higher end of the ranges both in terms of quantum and duration (Schulstad, at paras. 54-55; Wharry, at para. 94). By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration. Similarly, a non-compensatory claim based only upon loss of the marital standard of living may justify an award at the lower end of the ranges (SSAG, at p. 39; Bracklow; Midgley v. Midgley, 2001 CarswellBC 2009 (C.A.); Wharry at para. 94; Mason, at para 200; Schulstad at paras. 54-55).
In compensatory cases, the goal in establishing quantum and duration should be to formulate an award that reflects the economic disadvantages and advantages flowing from the marriage, and that continues until those consequences are redressed, even if the recipient has reached a reasonable degree of self-sufficiency (Morigeau v. Moorey, 2015 BCCA 160 (C.A.), at para. 243; Tedham v. Tedham, 2005 BCCA 502 (C.A.), at paras. 58-60; Allaire; Dancy v. Mason, 2019 ONCA 410 (C.A.)).
The extent of the recipient's needs is an important consideration. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges. By contrast, the absence of any compelling need may support an award toward the lower end of the range (Wharry, at para. 94; Berger, at para 119; Schulstad, at paras. 53 and 56). The fact that the recipient has reduced living expenses may also be relevant.
In assessing the level of a recipient spouse's need for the purposes of the quantum and duration analysis, the goal is not simply to award an amount that "meets expenses dollar for dollar" (Berger, at para. 117). As with the entitlement analysis, the court must consider the recipient's need against the parties' standard of living during the relationship, and factors such as the length of the relationship and the degree of economic interdependency that developed between the parties (Allaire at para. 21; Berger, at para. 117; Fisher, at para. 56; Chutter, at paras. 128, 140, 142; Hsieh v. Lui, 2017 BCCA 51 (C.A.), at para. 43; Parton v. Parton, 2018 BCCA 273 (C.A.), at para. 39; Winscombe v. Wiscombe, 2018 NLCA 36 (C.A.), at para. 29). In some circumstances, there will be an expectation upon the claimant spouse to adapt to a lower standard of living following separation or after a reasonable transitional period (Fisher, at para. 88).
The payor spouse's needs and ability to pay are also important considerations. In Schulstad, the Ontario Court of Appeal noted that need and limited ability to pay on the part of the payor may push an award to the lower ends of the SSAG ranges (at paras. 53 and 58-59; see also Berger, at para. 119, Wharry, at para. 94).
The need to preserve work incentives for the payor.
Property division. The Supreme Court of Canada's analysis in Moge recognized that a fair distribution of the economic consequences of a relationship and its breakdown may be achieved either by spousal support, by the division of property, or both. The resolution of issues relating to the parties' assets and debts is therefore relevant to the issues of entitlement, quantum and duration of spousal support (see also Faiello v. Faiello, 2019 ONCA 710 (C.A.), at para. 78; Berger, at paras. 124-127; Halliwell, at para. 141). Accordingly, it is well established in the caselaw that where there are both spousal support and property issues involved in a case, the court should first consider the parties' respective property-related obligations and entitlements, and then determine the issues of spousal support (Estephan v. Estephan, 2013 BCCA 540 (C.A.); Halliwell). The quantum and duration ranges which the SSAG generate are founded on the basic assumptions that the parties have accumulated the typical family or matrimonial property for couples of their age, incomes, and obligations, and that their property claims have been addressed in accordance with the applicable Family Law property laws. Consequently, significant departures from these assumptions may impact the judge's determination as to where spousal support should be fixed within the ranges for quantum and duration (SSAG, p. 101; Berger, at para. 119). The fact that there is no significant property to be divided may support an award at the higher end of the range, whereas a large property settlement may support a spousal support order at the lower end (SSAG, at p. 101; Halliwell, at para. 141).
The parties' respective debt loads. The fact that a party is left with a high debt load post-separation may also be a factor that pushes quantum higher or lower within the range. Significant debt may affect a party's ability to pay support, or conversely may increase the recipient spouse's need (SSAG, at p. 101; Castedo, at paras. 100-106). Where one party has assumed responsibility for joint debt, the other party's debts, or debts in their own name but which were incurred for the benefit of the other party or both, this may not only impact that party's ability to pay but can also be considered as a positive benefit to the recipient (Castedo, at paras. 102-104; Trottier v. Prudhomme, 2012 ONCJ 641 (O.C.J.), at para. 16).
The impact of any property award or any agreement regarding apportionment of assets and debts on the spousal support analysis will depend on the facts of each case. In determining the weight to be given to this factor, the conceptual basis of entitlement, and in particular the existence of a strong compensatory claim, may be relevant (Hsieh, at para. 44).
Self-sufficiency incentives in relation to the recipient spouse (Wharry, at para. 94; Berger, at para. 119).
In considering the appropriate location within the quantum ranges generated by the SSAG, and whether the ranges are suitable at all in the circumstances of the particular case before the court, a consideration of the family's net disposable income ("NDI") and the proportionate share of that NDI that is allocated to each party under the ranges generated by the SSAG is a factor which may assist the court. On the issue of NDI as a factor in considering the appropriate quantum of spousal support, the Ontario Court of Appeal has emphasized that "[e]qualization of income (or "NDI") has never been the basis upon which spousal support is determined in Canada" (Fielding v. Fielding, 2015 ONCA 901 (C.A.)). However, unusually high discrepancies in the proportionate distribution of NDI as between the parties under the SSAG ranges may call for a deeper inquiry into whether a departure from the ranges is required in order to satisfy the objectives of spousal support (Berger at para. 122; Naegels, at para. 13).
169As I have already noted, Ms. Joyce-Corvaglia’s claim for support is based on her post-separation means and needs, arising from her inability to work consistently because of the after-effects of her exposure to carbon monoxide. She is and has been in receipt of ODSP benefits.
170That noted, it is equally clear that neither party is living the lifestyle that the parties experienced jointly before their separation. Thus, Ms. Joyce-Corvaglia cannot expect to be supported to the level that would afford her the lifestyle she previously experienced with Mr. Corvaglia - a claim, I note, that she did not make. Her expectation is, therefore, reasonable. She simply wants to live a better lifestyle than she does at present, subsisting on ODSP income.
171I accept that Ms. Joyce-Corvaglia is unlikely to return to productive employment, so transitioning her back to that is not a factor in my assessment of support.
172Each listed debts in their Financial Statements at the time of trial. Ms. Joyce-Corvaglia listed debts of $38,300.00 and Mr. Corvaglia listed debts of $31,800.00. As such, there was not much discrepancy in their indebtedness. (Ms. Joyce-Corvaglia listed debts of $32,800.00 in 2016. I did not have Mr. Corvaglia’s 2016 Financial Statement.)
173I cannot comment on property issues because they were not before me. I do note that each party claimed injustice as a result of the actions of the other in this regard, but no evidence was led to support the grievances. That does not mean that they are illegitimate, just that they were not issues in this trial. Similarly, each claimed that the actions of the other left them with debts to pay. Again, these were not matters about which evidence was called at trial, nor were they issues for the trial.
174I also accept the evidence of Mr. Corvaglia that his current partner is also unable to work due to disability, and that, when they began to cohabit in 2018, she lost her ODSP. As a result, he is also supporting her while they cohabit. That, to some extent, reduces the amount that he has available to pay spousal support. It does not absolve him of a responsibility to support Ms. Joyce-Corvaglia.
175I also take into account the conflicting possible income placements cited by Justice Chappell in A.E. v. A.E., where she noted both that “a non-compensatory claim based only upon loss of the marital standard of living may justify an award at the lower end of the ranges” and “[w]here the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum...ranges.” Both of these situations apply to Ms. Joyce-Corvaglia.
176In order to balance out the conflicting possible placements of support in the “lower end of the ranges” suggested by the first of the situations cited by Justice Chappell in A.E. v. A.E. and the cases she cited in support of that possible placement, with support in the “higher end of the quantum…ranges” suggested by the second of the situations cited by Justice Chappell, and taking into account all of the other factors that I have considered, I have concluded that the support to be paid by Mr. Corvaglia to Ms. Joyce-Corvaglia best lies at the mid-range of support amounts under the Spousal Support Advisory Guidelines.
177For the years 2014, 2015 and 2016, based on the parties’ incomes, the monthly mid-range spousal support amounts are:
2014: $1,281.00
2015: $1,101.00
2016: $ 403.00
178As a result, I find that Mr. Corvaglia’s total support obligation to Ms. Joyce-Corvaglia for the period between October 2014 and March 2016, amounted to:
October to December, 2014: $ 3,843.00
January to December, 2015: $13,312.00
January to March 2016: $ 1,209.00
Total Pre-Application Support: $18,264.00 (before deducting payments made)
179Based on Mr. Corvaglia’s income tax documents, in 2015 he paid spousal support to Ms. Joyce-Corvaglia in the amount of $13,000.00. Consequently, I find that, for the period from the date of separation to the date that the Application was issued, the amount of spousal support remaining to be paid by Mr. Corvaglia to Ms. Joyce-Corvaglia, absent any adjustment, amounts to $5,264.00.
Post Application Support Payable by Mr. Corvaglia, to September 30, 2023
Ms. Joyce-Corvaglia’s Income
180Ms. Joyce-Corvaglia’s income for support purposes for the period after commencement of the Application is as follows:
2016: $22,510.00 (as previously determined)
2017: $9,000.00 ($23,322.00 less ODSP of $18,322.00 nets $4,000.00; imputed amount used)
2018: $9,000.00 ($21,292.00 less ODSP of $14,332.00 nets $6,960.00; imputed amount used)
2019: $9,000.00 ($12,860.00 less ODSP of $12,860.00 nets nil; imputed amount used)
2020: $23,891.00 ($32,959.006 less ODSP of $9,068.00 nets $23,891.00)
2021: $9,000.00 ($22,311.00 less ODSP of $14,931.00 nets $7,380.00; imputed average used)
Mr. Corvaglia’s Post-Separation Income
181I have already determined Mr. Corvaglia’s annual income at the date of separation to be $70,000.00. His income for the years after 2014 was as follows:
2015: $ 62,943, after deducting spousal support paid of $13,000
2016: $ 42,225
2017: $ 78,564
2018: $ 91,863
2019: $126,997
2020; $113,624
2021: $112,296
2022: $125,296
Is Ms. Joyce-Corvaglia Entitled to Share in Increases to Mr. Corvaglia’s Post-Separation Income?
182As I have determined, Mr. Corvaglia’s annual income at the time of separation in 2014 was $70,000.00. Because of the increases in his income each year, but for 2015 and 2016, thereafter, I must consider the issue of whether Ms. Joyce-Corvaglia is or should be entitled to increased support in those years.
183Justice D. Chappel wrote in Kinsella v. Mills that, “whether a recipient spouse should be permitted to benefit from the payor's post-separation income increases is ultimately a matter of judicial discretion to be decided having regard for the particular circumstances of each case.” (Kinsella v. Mills, at para. 431)
184She then listed a series of principles addressing this issue. Since I have determined that Ms. Joyce-Corvaglia is entitled to spousal support only on the basis of need, I am excluding from Justice Chappel’s list of principles those that relate to compensatory support orders. Pared down, and excluding the cases on which they are based, the principles listed by Justice Chappel include:
A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse's post-separation increase in income.
The question of whether there should be a sharing of post-separation income increases is not an "all or nothing" matter. Partial sharing of such increases, and/or sharing for a specified period of time, are issues that the court should also consider when the issue arises.
The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. Accordingly, in a proceeding governed by the Divorce Act, the factors and objectives outlined in section 15.2(4) and (6) must inform the overall analysis.
The basis of a spouse's entitlement to spousal support is an important consideration. In both compensatory and non-compensatory cases, the court's assessment of the needs of the recipient and ability of the payor spouse to pay are significant factors that should inform the court's analysis regarding sharing of post-separation income increases. However, in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor's post-separation income increases. Nonetheless, the circumstances of each case must be carefully considered to ensure a just outcome, having regard for all of the objectives and factors outlined in the relevant legislation. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases in purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality. (italics added)
Another important consideration is whether there were any changes in the payor's career post-separation that explain the increase in income, such as a new job, position, or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills, and experience that the payor had acquired during the relationship with the support of the recipient's efforts.
The courts also consider whether the increase in income is primarily attributable to the payor's decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship.
Evidence that the increased income was attributable to specific, unusual events following the separation, such as unexpected changes in market conditions, is a factor that may weaken a claim to share in the increase.
Evidence that the recipient spouse has not taken reasonable steps towards achieving self-sufficiency is another factor that courts have considered in determining whether there should be a sharing of post-separation income increases, and if so, the extent of any such sharing. In such situations, the shortcomings in the recipient's self-sufficiency efforts will also be relevant to determining whether income should be imputed to them, but it is not inappropriate to consider the issue from both lines of analysis.
Evidence that the payor has also made contributions to the recipient's career advancement post-separation will also be relevant.
185Ms. Joyce-Corvaglia was clear that, when the parties first went into business together, her strength was administration and Mr. Corvaglia’s was sales. She testified that he likely knew more about the Pallett business than anyone else.
186The evidence shows that Mr. Corvaglia suffered a couple of hard years himself after the parties separated. His income dropped during those years.
187He began to work for his uncle at Challenger Pallett in 2018. While his income exceeded $70,000.00 in 2017, it began a series of reasonably substantial increases once he joined Challenger Pallett (his uncle’s company) in 2018.
188I was provided with no evidence to suggest that Ms. Joyce-Corvaglia contributed in any meaningful way to Mr. Corvaglia’s knowledge of the pallet business or the sale of pallets while the parties were together as a couple.
189That noted, Ms. Joyce-Corvaglia has suffered a diminished income for a number of years. She lives a lifestyle far below that of the parties when they were together. I find that, to a limited extent, her circumstances are such that she should be entitled to share in some part of the financial gains made by Mr. Corvaglia after 2018, despite her entitlement being based on need7, just as her support entitlement must decrease in the years 2015 and 2016, when Mr. Corvaglia was facing his own financial challenges.
190As a result, for the years 2018 and onward, I am setting the income of Mr. Corvaglia for support purposes, not at what he earned, but at $80,000.00. This exceeds the $70,000.00 that I determined he earned in 2014, the year that the parties separated. All amounts that he earned thereafter above that amount are not used to determine support.
191Consequently, I find that the spousal support owed by Mr. Corvaglia to Ms. Joyce-Corvaglia for April to December 2016 and for the years subsequent thereto amounts to the following:
Year Income – Ms. J.-C. Income – Mr. C. Support Owed
2016 $22,510.00 $42,225.00 $3,627.00 (for 9 months)
2017 $9,000.00 $78,564.00 $17,040.00 ($1,420.00/mo.)
2018 $9,000.00 $80,000.00 $17,400.00 ($1,450.00/mo.)
2019 $9,000.00 $80,000.00 $17,400.00 ($1,450.00/mo.)
2020 $23,891.00 $80,000.00 $13,752.00 ($1,146.00/mo.)
2021 $9,000.00 $80,000.00 $17,400.00 ($1,450.00/mo.)
192Because I have no income information from Ms. Joyce-Corvaglia for 2022, I intend to use the imputed income figure of $9,000.00 for both that year and for 2023. Mr. Corvaglia’s income is also set at the previously imputed amount of $80,000.00. Therefore, for the 21 months between January 1, 2022 and September 30, 2023, I find that Mr. Corvaglia’s arrears of spousal support owed to Ms. Joyce-Corvaglia increased by a further $30,450.00 (21 months at $1,450.00/month).
[192.1] Based upon the authorities provided to me by counsel for Mr. Corvaglia following the Release of my Reasons for Judgment, I have determined that it is appropriate to “net down” the lump-sum arrears that Mr. Corvaglia is to pay to Ms. Joyce to account for a notional tax deduction that would have been available to him had the payments been made on an ongoing and regular basis when they were due. The netted-down figures are set out in the following chart:
| Year | Total Support - Netted Down for Tax |
|---|---|
| 2014 | $ 3,120.00 |
| 2015 | $ 10,092.00 |
| 2016 | $ 1,209.00 |
| 2016 | $ 2,808.00 |
| 2017 | $ 12,918.00 |
| 2018 | $ 13,074.00 |
| 2019 | $ 11,688.00 |
| 2020 | $ 11,424.00 |
| 2021 | $ 12,354.00 |
| 2022 | $ 12,342.00 |
| 2023 | $ 9,306.00 |
| Minus after tax value of Support Paid per paragraph 179 of the original Reasons for Judgment | -$ 9,936.00 |
| Total Retroactive Support Payable (after tax) | $ 90,399.00 |
Arrears Owing to September 30, 2023
193Taking all of these figures into account, I find that the total arrears of spousal support owed by Mr. Corvaglia to Ms. Joyce-Corvaglia for the post-application period commencing in March 2016 and ending September 30, 2023, netted down for income tax purposes, amounts to $90,399.00.
Fourth Factor - Kerr v. Baranow – Potential Financial Hardship to Mr. Corvaglia
194Given that Mr. Corvaglia’s most recent annual income, in 2022, was $125,296.00, I find that it would not cause financial hardship to him to be required to pay to Ms. Joyce-Corvaglia either the net, unpaid, pre-application arrears of spousal support which I earlier determined to be $5,264.00, or the total spousal support arrears of $122,333.00, which includes post-application arrears. I am permitting him to pay the arrears in monthly installments.
Ongoing Support
195I am continuing the support payments that I determined, above, to be owed by Mr. Corvaglia for the months of January 2022 to August 2023, for the same reasons.
196As a result, Mr. Corvaglia’s ongoing monthly spousal support payment to Ms. Joyce-Corvaglia is set at $1,450.00, commencing October 1, 2023.
Duration of Support
197Under the SSAGs, for a relationship/marriage with the duration of that which existed between the parties in this case, the range for the duration of spousal support is between 7 and 14 years from the date of separation. That would place the end of support as early as 2021, when Ms. Joyce-Corvaglia was 50 years of age and Mr. Corvaglia was 55 years of age, and as late as 2028, when Ms. Joyce-Corvaglia will be 57 years of age and Mr. Corvaglia will be 62 years of age.
198As I have already noted, the purpose of a spousal support order found at s. 33(8)(d) of the Family Law Act (to “relieve financial hardship” that has not been alleviated by an order concerning either family property or the matrimonial home, neither of which was in issue in this case) is most pertinent on the facts of this case.
199Since I have used the mid-range spousal support amount, one might reasonably expect that I should also use a mid-range duration for support to be paid. That period would be 10.5 years and, in fact, if I were to be ordering a lump sum payment of spousal support, that is the assumption built into the SSAG calculator for determining the net present value of capitalized future support payments. That would have support ending in April, 2025.
200As to the issue of illness and disability, SSAG 12.4 notes that:
Many cases of illness or disability can be accommodated within the formulas. The central
concern in many of these cases will be the recipient’s need for long-term or indefinite support. Indefinite (duration not specified) support would be available under the formulas after 20 years of marriage or based upon the “rule of 65”. And, in most medium-to-long marriages, with or without children, the ranges for duration and amount offer considerable scope to accommodate the needs of an ill or disabled spouse. Disability will be an important factor in locating the amount and duration within the ranges in these cases…
201However, as Justice Chappell wrote in A.E. v. A.E.:
474 … The SSAG formulas were developed to deal with typical Family Law scenarios. However, as the authors have consistently emphasized, there will be cases where the formula outcomes are inappropriate. The SSAG identify 11 such situations in which the SSAG ranges for quantum and/or duration may not be appropriate, which the authors describe as "exceptions" to the SSAG. The listing and discussion of these exceptions in the SSAG is intended to simply highlight some of the situations in which the SSAG ranges can produce intuitively wrong outcomes for amount or duration. As the authors have emphasized, departures from the formula outcomes are not restricted to the listed exceptions, since the SSAG are informal and advisory (Revised User's Guide, p. 62). The courts have consistently reiterated that ultimately, the decision as to whether the suggested ranges are appropriate or should be departed from will depend on the unique facts of each case and will be a matter of judicial discretion (Racco, at para. 44).
202One of the exceptions provided for in the SSAGs is “illness and disability.” As to this exception, the SSAG User Manual provides, in Chapter 12(d), with respect to SSAG 12.4:
The illness and disability “exception” will generally be relevant where the marriage is short-to-medium length and there are no children in the care of the recipient, but the disability is long-term. These will be cases that fall under the without child support formula or the custodial payor formula. The formulas produce ranges for amount and duration that may seem “too low” or “too short”, certainly to recipients….Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.
(i) Lower Amount, Extend Duration: most courts will extend duration, even to be “indefinite”, while keeping the amount within the range, at or near the low end;
(ii) No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;
(iii) Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration.
203I have already noted that I settled on the mid-range amount of monthly support as a compromise between where the quantum of support might be placed in a case where the issue is only the loss of the marital standard of living and where it might be placed where the only issue is that the recipient has limited income and/or earning capacity. This case has both elements.
204The latter quantum of support placement factor would have had support placed at the higher end of the quantum ranges. Given that it is unlikely that Ms. Joyce-Corvaglia is going to return to meaningful employment due to her physical limitations, I find that this case also falls into the SSAG exception relating to illness and disability, and that it is best addressed by extending the duration of support to make up for the compromise reduction on which I have settled.
205Such an approach was adopted by the Court of Appeal in McGuire v. Bator, [2022] O.J. No. 2445, where the Court allowed an appeal from an order that set duration at the low end after a five-year relationship, where the recipient’s only income was disability of $1,200.00 per month, and order that support be paid indefinitely. The Court wrote:
29… For support to terminate there must be a realistic prospect of the spouse being able to become self-sufficient: Reisman v. Reisman, 2014 ONCA 109, 118 O.R. (3d) 721, at para. 28. This court has upheld an indefinite support order in the case of ongoing need due to disability (Gray) and has overturned a time limit for support for a disabled spouse (Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1, at para. 9).
30 Here the appellant remains disabled and unable to support herself. She lives on government disability payments. There is no evidence that her situation had changed or will change in the future.
31 One of the purposes of a spousal support order is to relieve financial hardship; another is for a former spouse to fulfil a basic social obligation to provide support where they are able to do so and the recipient spouse is not. Nothing in the trial judge's reasons explains how the termination of support after only two-and-a-half years achieves these or other objectives of spousal support.
206In principle, the facts in this case are not significantly different from McGuire v. Bator, given Ms. Joyce-Corvaglia’s disability. Accordingly, I find that it is appropriate to order that Mr. Corvaglia pay spousal support to Ms. Joyce-Corvaglia indefinitely which, as the SSAG User manual points out, does not necessarily mean permanently since, depending on materially changed circumstances, the amount may be varied over time and even be terminated.
“Justice T. Price”
Justice T. Price
Released: September 25, 2023
Explanation of Amendments
The following new Paragraph has been inserted:
[192.1] Based upon the authorities provided to me by counsel for Mr. Corvaglia following the Release of my Reasons for Judgment, I have determined that it is appropriate to “net down” the lump-sum arrears that Mr. Corvaglia is to pay to Ms. Joyce-Corvaglia to account for a notional tax deduction that would have been available to him had the payments been made on an ongoing and regular basis when they were due. The netted-down figures are set out in the following chart:
| Year | Total Support - Netted Down for Tax |
|---|---|
| 2014 | $ 3,120.00 |
| 2015 | $ 10,092.00 |
| 2016 | $ 1,209.00 |
| 2016 | $ 2,808.00 |
| 2017 | $ 12,918.00 |
| 2018 | $ 13,074.00 |
| 2019 | $ 11,688.00 |
| 2020 | $ 11,424.00 |
| 2021 | $ 12,354.00 |
| 2022 | $ 12,342.00 |
| 2023 | $ 9,306.00 |
| Minus after tax value of Support Paid per paragraph 179 of the original Reasons for Judgment | -$ 9,936.00 |
| Total Retroactive Support Payable (after tax) | $ 90,399.00 |
The following amendments have been incorporated:
Paragraph 10(c) has been amended to include the Total Retroactive Support Payable (after tax), as has Paragraph 193, to which has also been added the words, “netted down for income tax purposes.”
COURT FILE NO.: FC322/16
DATE: 2023/09/25
AMENDED: February 5, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Beatrice Joyce-Corvaglia
Applicant
- and -
Lawrence Marco Corvaglia
Respondent
REASONS FOR JUDGMENT
T. PRICE, J.
Released: September 25, 2023
Footnotes
- An assertion by a party to being afflicted by a medical condition, not confirmed by the production of medical reports, is “fragile evidence.”
- “An unqualified lay person does not possess the qualifications to assess and diagnose their own medical conditions, nor are they qualified to interpret the medical documentation presented to a court. When faced with medical and scientific evidence, the court requires the assistance of properly qualified experts to assist in understanding and interpreting this evidence.”
- Paragraph 152 for 2016; Paragraph 180, fn. 7 for 2020
- Paragraphs 164 and 180
- It was in 2016 that Ms. Joyce-Corvaglia was first determined to be eligible to receive ODSP. Those payments are not taxable. They should, however, be reported on Line 14500 (formerly, Line 145) (https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/personal-income/line-145-social-assistance-payments.html).Such amounts are to be deducted when determining income for support purposes. (Child Support Guidelines, Schedule III, s. 4) Payments received from Employment Insurance are taxable. The evidence indicates that Ms. Joyce-Corvaglia did, at some point, receive E.I. payments. The 2016 Notice of Assessment makes no reference to Line 145. Therefore, I conclude that Ms. Joyce-Corvaglia’s 2016 income did not include any ODSP payments.
- This amount included CERB and CRB benefits totaling $18,000.00.
- Want v. Gauthier, [2021] O.J. No. 6859 (S.C.J.)