Hani v Shadid, 2024 ONSC 3619

Court File and Parties

Court File No.: FS-23-00039781-0000 Date: 2024-06-24 Ontario Superior Court of Justice

Between: Umme Hani, Applicant And: Hafiz Syed Saad Bin Shadid, Respondent

Counsel: Lisa Baumal, lawyer for the Applicant Hafiz Syed Saad Bin Shadid, self-represented

Heard: June 20, 2024

Before: Diamond J.

Endorsement

1On June 20, 2024, the applicant brought a motion before this Court seeking an order granting her interim spousal support in the amount of $1,250.00 a month commencing (retroactively) on May 1, 2024, and continuing thereafter on the first day of each month up to April 1, 2026 (ie. a fixed period of two years).

2Based upon the respondent’s income (a figure with which the parties do not quarrel), the amount of spousal support sought by the applicant falls outside the range provided for in the Spousal Support Advisory Guidelines (“SSAGs”). The applicant submits that for the reasons put forward at the hearing (summarized below), the specific facts of this case ought to result in an order departing from the formulas set out in the SSAGs.

3The respondent opposes the applicant’s motion and argues that based upon the traditional factors, there is no entitlement to spousal support. He further submits that in the alternative, should this Court grant interim spousal support, the amount should be made in accordance with the SSAGs (which would mean an amount in the range of $206.00 to $274.00 each month).

Background Facts

4While some portions of the factual narratives put forth by each party on this motion may differ, most of the salient facts which guide the exercise of this Court’s discretion are not in dispute:

• The applicant is currently 28 years old. The respondent is currently 31 years old.
• Both parties were born in Karachi, Pakistan.
• The applicant attended a four-year dental school program in Karachi that ended in April 2022. Her one-year Pakistani Provisional Dental License expired on October 14, 2023. During the term of her Provisional Dental License, she commenced a one-year internship as a house dentist in Pakistan followed by short term employment at a private Pakistani dental clinic.
• The respondent obtained a Bachelor’s degree in Commerce from the University of Karachi and then became an accountant with a Global Accounting Designation.
• The respondent commenced employment for PWC in Toronto as a Senior Associate in December 2021. His salary was originally $73,000.00 per year, but his current income with PWC is approximately $111,000.00 per year. He has life insurance and health/dental benefits as part of his employment compensation.
• The parties were married in Karachi on May 28, 2022. This was the Nikkah ceremony.
• The wedding event (the Rukhsati ceremony) took place on April 2023.
• The respondent arrived in Canada in November 2021 on a work permit for PWC in Toronto.
• The applicant came to Toronto in July 2023 on a work permit arranged through PWC. However, she was not employed and did not earn any income after arriving in Canada.
• The parties had discussions about the applicant studying to be a dental hygienist when she arrived in Canada, and thereafter they would attempt to have children. According to the applicant, the reason that she did not attempt to continue her career as a dentist (at least upon her arrival into Canada) was that the equivalency program was very lengthy, costly and potentially uncertain.
• The parties separated in mid-November 2023. This was short marriage with a duration of approximately 1.5 years.
• During their marriage, the respondent was the applicant’s sole financial support.
• Other than her uncle who lives in Whitby, the applicant has no family members in Canada.
• When the applicant arrived in Canada, she moved into the respondent’s one bedroom apartment, which the respondent rented at a cost of $2,350.00 per month plus utilities. There is no dispute that the respondent paid for all the rent and utilities for that apartment, together with all other related living expenses.
• After the parties separated, the applicant’s mother travelled to Canada to assist the applicant emotionally. The applicant’s mother stayed for approximately three months, and then returned home to Pakistan.
• The applicant had been using the respondent’s supplementary credit card, but by mid-December 2023 the respondent cancelled that card.
• The respondent continued to pay rent for the apartment until January 2024 (although the landlord used last month’s rent to pay for February 2024).
• The respondent gave evidence that he owes money to one of his brothers, although the amount of the loan to be paid back has varied during the short lifespan of this proceeding. The amount allegedly owing to his brother ranges from $5,000.00 to $15,000.00. The respondent has been repaying his brother $1,250.00 a month for the last few months.
• While there is evidence in the record before this Court that the respondent’s brother has asked the respondent for repayment of the alleged loan, there is no evidence filed to date of the advances purportedly given to the respondent from his brother.
• The respondent had arranged for a termination of the tenancy of the apartment, and it needed to be vacated by April 22, 2024. The applicant filed a motion with the Landlord Tenant Tribunal to set aside the Notice to Vacate. The applicant’s motion was recently dismissed by the Landlord Tenant Tribunal, but the eviction has been extended until July 31, 2024.
• The respondent moved to a new rental residence with a monthly rent of $1,650.00 per month. He seeks occupation rent for the original apartment from the applicant for the February-June 2024 period (ie. while the applicant resides there from the original expiry until the extended eviction date).
• After applying for approximately 235 jobs (albeit over a nine-day period only), the applicant decided to continue with her plan to become a dental hygienist, and she was accepted into a dental hygiene program at the Oxford Scarborough Campus. That program commences in July 2024 and is scheduled to end in January 2026.
• It is the applicant’s intention to locate a one room rental accommodation (likely a basement apartment) at a lower rental cost than the apartment in which she resided with the respondent.

Legal Principles

5As a starting point, it is helpful to review the factors and objectives of ss. 15.2(4) and (6) of the Divorce Act regarding an order of spousal support.

Factors

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

(a) the length of time the spouses cohabited;

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

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

Objectives of spousal support order

15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

6There are generally three grounds upon which one may claim entitlement to spousal support: on a compensatory basis, a non-compensatory claim (also known as needs-based claim) or by contract. A compensatory spousal support claim is based on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation. This was a short marriage where there are no children. This case does not have the common hallmarks of a compensatory spousal support claim.

7A non-compensatory claim is one based on need. “Need” means an inability to meet basic needs and has also generally been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation.

8The third basis for entitlement is on a contractual basis, which is not present on the facts of this case.

9In this case, the length of the marriage was relatively short and there were no children. The parties nevertheless formed a relationship of financial interdependence, which began when the applicant depended on the respondent’s assistance financially when she came to Canada and was not working.

10Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.

11As held in Fisher v. Fisher 2008 ONCA 11 at paragraphs 53-54:

“Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower- income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.”

Analysis and Conclusion

12With respect to the applicant’s entitlement for support, while I accept that this was a short marriage that did not produce any children or a lengthy cohabitation by the parties, the “condition, means, needs and other circumstances of each spouse” set out in section 15.2(4) of the Divorce Act leads to the conclusion that spousal support would be appropriate in the unique circumstances before this Court.

13The applicant’s entitlement is largely a non-compensatory claim. The applicant has an obvious need for financial support, as she has no assets, employment or other means and, at the present time, little to no capacity to contribute to her own financial situation. The applicant is young, healthy and (eventually) able to earn an income. While she is (and has been) interested in becoming financially self-sufficient through her enrolment in the dental hygienist program, that program is costly and will take several years to complete. This is presumably why she is asking for a fixed period during which spousal support be ordered payable by the respondent.

14The applicant has been financially disadvantaged as a result of leaving her career and home in Pakistan to move to Canada to live with the respondent. The marriage, while short, and its breakdown created an economic disadvantage and dependency. The respondent does have the means to pay support, although I agree with him that any spousal support order should not completely preclude him from paying the debt allegedly owed to his brother (as he has been making such payments), or risk him not paying his other fixed, reasonable monthly debts/expenses.

15The spousal support range set out in the SSAGs will not allow the applicant the chance to live and pursue her career as a dental hygienist in Canada. However, the amount sought by the applicant does not take the respondent’s current financial situation into account. The Court has a discretion in exceptional circumstances to depart from the SSAGs and determine the appropriate quantum and duration of any spousal support order. There are compelling financial circumstances to award the applicant spousal support for the requested fixed period, but bearing in mind the respondent’s ability to pay, I am of the view that an appropriate interim spousal support award would be the sum of $850.00 per month.

Order

16For these reasons, I make the following order:

1. Commencing July 1, 2024, and on the first day of each month thereafter up to and including May 1, 2026, the respondent shall pay the applicant interim spousal support in the amount of $850.00 per month.
2. All payments shall be made by the respondent to the Family Responsibility Office.
3. The respondent shall maintain the applicant on his PWC employee health/dental benefits plan until further agreement between parties or divorce order.
4. The respondent shall designate the applicant as irrevocable beneficiary of the sum of $20,000.00 on his life insurance policy available to him through PWC for as long he is employed by PWC.

17The parties may forward a draft Order and draft Support Deduction Order to my attention for review and signature care of my assistant Michelle Giordano at michelle.giordano@ontario.ca.

Costs

18With respect to costs of the applicant’s motion, I am aware that offers to settle were exchanged between the parties, although I am not privy to the terms of those offers to settle. If the parties cannot agree upon the costs of this motion, they may serve and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:

(a) The applicant shall serve and file her costs submissions within 10 business days of the release of this Endorsement; and

(b) The respondent shall serve and file his responding costs submissions within 10 business days of the receipt of the applicant’s costs submissions.