COURT FILE NO.: FS-15-0129-00
DATE: 2024-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tammy Lynn Osmond
Lauren Conti, for the Applicant
Applicant
- and -
Dwayne George Osmond
Self-Represented, not appearing
Respondent
HEARD: May 31st, 2024, at Thunder Bay, 2024
Madam Justice H. M Pierce
Reasons on Motion for Summary Judgment
Introduction
[1] The applicant, Ms. Osmond, moves for summary judgment pursuant to Family Law Rule 16(1) on the grounds that there is no genuine issue requiring a trial. She claims on-going compensatory and needs-based spousal support, and arrears of spousal support; on-going child support, including s. 7 expenses, and arrears of child support.
[2] The applicant also claims extended health coverage for the children through the respondent’s employment, so long as the children are eligible for coverage and security for support, naming the applicant as beneficiary of a life insurance policy, to the extent of $350,000.
[3] Ms. Osmond proposes annual income disclosure between the parties with any readjustment of child support and s. 7 expenses based on the prior year’s income with the new amount of child support payable commencing June 1.
[4] Finally, the applicant proposes that spousal support be reviewed in August 2025 and that the parties’ divorce be granted on an uncontested basis. She also claims costs.
[5] Family Law Rule 16(1) permits a party, after the respondent has served an answer or the time to do so has expired, to move for summary judgment “for a final order without a trial on all or part of any claim made …in the case.” If there is no genuine issue requiring a trial, the court may make a final order: Rule 16(6).
[6] Where a divorce is claimed, the divorce may be split from the remaining claims: Rule 16(3).
[7] The party making a summary judgment motion is required to serve affidavit or other evidence setting out the facts showing there is no genuine issue requiring a trial: Rule 16(4).
Rule 16(4.1) provides:
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[8] The applicant’s claims are financial in nature and well-documented by her supporting material. Because Mr. Osmond has not filed any responding material, he is deemed to admit the allegations of the applicant. I find there is no genuine issue requiring a trial.
The Evidence
[9] Ms. Osmond filed detailed affidavit evidence and calculations supporting her claims. Her motion was supported by affidavit evidence of her current partner, Mr. Moreau.
[10] The applicant was born in 1973 and is now 51 years of age; the respondent, born in 1972, is 52. The parties made their home in Marathon, Ontario. They began cohabitation in September 1993, married June 27, 1998, and are the parents of two daughters, Emily Trisha May Osmond, born July 28, 2002 (age 22), and Jada Lynn Osmond, born May 17, 2006 (age 18). They separated on April 1, 2014, but continued to live in the matrimonial home until the applicant and the children vacated the home on September 14, 2014.
[11] The applicant has been a “stay-at-home” parent to the children throughout the marriage, a role that continues to this day. She completed her high school diploma when she was 23. Her work history was sporadic due to responsibilities as the primary care-giver for the children that the respondent was not available to address because of his work responsibilities. Ms. Osmond proposes that the court impute minimum wage income to her for purposes of calculating spousal support and the children’s s. 7 expenses.
[12] Mr. Osmond was a linesman for Hydro One when the parties separated. He is now a regional manager there.
[13] The parties’ eldest daughter, Emily, has completed her third year of a four-year program at Western University, and expects to graduate in June 2025. She returns to live with her mother in Marathon from May to August each year.
[14] The parties’ second daughter, Jada, has completed grade 12 at Marathon High School and plans to enroll in a fifth year, anticipating graduation in June 2025. She is considering her options for post-secondary education in September 2025.
Temporary Orders
[15] The applicant states that she received no child or spousal support from the respondent between September 2014 and July 2015. She commenced this application in June 2015. On July 13, 2015, a temporary without prejudice order was made on consent at the case conference. The relevant portions of that order for purposes of this motion are:
Requiring the respondent to pay child support of $1,000 per month in two equal installments, commencing July 15, 2015;
Requiring the respondent to pay the applicant spousal support of $900 per month in two equal installments commencing July 15, 2015; and
Income disclosure.
[16] Once the respondent provided the income disclosure ordered, the applicant secured a temporary order on January 14, 2016, with the relevant portions as follows:
ordering the respondent to pay monthly child support of $1,786 retroactive to October 1, 2014;
ordering Mr. Osmond to pay 65% of the children’s s. 7 expenses;
requiring the respondent to pay spousal support of $2,466 per month retroactive to October 1, 2014;
child and spousal support arrears were ordered paid at the rate of $250 per month;
the respondent would be credited with child and spousal support payments made pursuant to the previous order; and
the applicant was awarded costs of $2,000 enforceable by the Family Responsibility Office.
[17] The applicant states that this order has not been varied; nor have the costs ordered been paid.
[18] This motion does not address property claims which were resolved at a settlement conference.
Child Support Arrears
[19] The respondent has not disclosed his income after 2021.
[20] Paragraph 21 of the applicant’s affidavit sworn May 17, 2024, contains the following summary of the child support claims arrears claimed on this motion as supported by the evidence filed on this motion and summarized in the following table:
| Year | Income | Kids | Owed | Total |
|---|---|---|---|---|
| 2014 | $130,400.00 | 2 | $1,786.00 / month x 9 (April to December) | $16,074.00 |
| 2015 | $119,413.30 | 2 | $1,653.00 / month x 12 (January to December) | $19,836.00 |
| 2016 | $123,963.00 | 2 | $1,709.00 / month x 12 (January to December) | $20,508.00 |
| 2017 | $134,594.00 | 2 | $1,894.00 / month x 12 (January to December) | $22,728.00 |
| 2018 | $177,753,00 | 2 | $2,410.00 / month x 12 (January to December) | $28,920.00 |
| 2019 | $185.775.00 | 2 | $2,506.00 / month x 12 (January to December) | $30,072.00 |
| 2020 | $180,520.00 | 2 | $2,443.00 / month x 12 (January to December) | $29,316.00 |
| 2021 | $188,044.00 | 2 | $2,534.00 / month x 8 (January to August) | $20,272.00 |
| 2021 | $188,044.00 | 1 | $1,573.00 / month x 4 (September to December) | $6,292.00 |
| 2022 | $188,044.00 (Use 2021) | 1 | $1,573.00 / month x 12 (January to December) | $18,876.00 |
| 2023 | $188,044.00 (Use 2021) | 1 | $1,573.00 / month x 12 (January to December) | $18,876.00 |
| 2024 | $188,044.00 (Use 2021) | 1 | $1,573.00 / month x 5 (January to May) | $7,865.00 |
| Total Amount Owed | $239,635.00 | |||
| Total Amount Paid | $211,136.00 | |||
| Total Amount of Arrears | $28,499.00 |
[21] I accept these claims and credits and find them proven on a balance of probabilities, the respondent not disputing them.
[22] The respondent therefore owes the applicant arrears of child support in the amount of $28,499 as of June 1, 2024.
Section 7 Arrears
[23] Section 7 expenses are defined in the Federal Child Support Guidelines, S.O.R. 97 – 175, as am.as:
a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
b) that portion of the medical and dental insurance premiums attributable to the child;
c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
e) expenses for post-secondary education; and
f) extraordinary expenses for extracurricular activities.
[24] My order of January 14, 2016, established that the applicant would be responsible for 35% of section 7 expenses and the respondent would be responsible for 65% of those costs, based on his 2014 income which was disclosed at $130,399.
[25] The applicant deposes in her affidavit that Emily’s tuition for her second and third years of university have been covered by her band, the Fort William First Nation. Therefore, her claims are limited to her first-year tuition, travel, food, and housing. The other claims for retroactive s. 7 expenses are documented in the applicant’s affidavit and set out in the following table.
| Respondent’s Income | Applicant’s Income | Time Period | Kid & Activity | Total Expense | R’s % | Total Owed |
|---|---|---|---|---|---|---|
| $177,753.00 | $25,480.00 | Summer 2018 | City Golf Membership | $1,083.10 | 69.8 | $755.93 |
| $185,775.00 | $25,480.00 | June 2019 | Jada Braces | $6,360.00 | 69.9 | $4,445.64 |
| $185,775.00 | $25,480.00 | Summer 2019 | City Golf Membership | $1,348.10 | 69.9 | $942.32 |
| $188,044.00 | $26,117.00 | Summer 2021 | City Golf Membership | $1,510.80 | 68.6 | $1,036.41 |
| $188,044.00 | $26,117.00 | September 2021 | Emily Tuition | $7,809.65 | 65.5 | $5,115.32 |
| $188,044.00 | $26,117.00 | September 2021 | Emily Housing | $1,075.00 | 65.5 | $704.13 |
| $188,044.00 | $26,117.00 | Sep – Dec 2021 | Emily (Uni travel & food & set up room) | $2,814.19 | 65.5 | $1,843.29 |
| $188.044.00 | $27,300.00 | Jan – April 2022 | Emily Housing | $4,375.00 | 65.5 | $2,865.63 |
| $188.044.00 | $27,300.00 | Summer 2022 | City Golf Membership | $1,158.23 | 65.5 | $758.64 |
| $188.044.00 | $27,300.00 | Jan – Dec 2022 | Emily (Uni travel & food & set up room) | $6,000.71 | 65.5 | $3,930.47 |
| $188,044.00 | $30,121.00 | Jan – Dec 2023 | Emily (Uni travel & food & set up room) | $4,058.01 | 65.4 | $2,653.94 |
| $188,044.00 | $30,121.00 | Jan – April 2024 | Emily (Uni travel & food & set up room) | $1,547.61 | 65.4 | $1,012.14 |
| Total Amount | $26,063.86 | |||||
| Total Amount Paid by the Respondent | $17,357.37 | |||||
| Total Amount of Arrears | $8,706.49 |
[26] I accept these claims and credits and find them proven on a balance of probabilities, the respondent not disputing them.
[27] The respondent therefore owes the applicant s. 7 arrears in the amount of $8,706.49 as of June 1, 2024.
On-Going Section 7 Expenses
[28] In addition to the amounts ordered for arrears of s. 7 expenses, the parties shall pay the children’s future s. 7 expenses calculated as 65% payable by the respondent (based on his 2021 income of $188,044) and 35% by the applicant (based on her request to impute income at $30,121).
Continuing Child Support
[29] This motion was under reserve since it was argued on May 31, 2024. Therefore, additional child support has accrued since that time.
[30] The respondent is also ordered to pay to the applicant continuing child support of $1,573 per month for Jayda Lynn Osmond commencing June 1, 2024, and monthly thereafter based on the respondent’s 2021 income of $188,044, subject to credit for any payments he has made on account of child support since June 1.
[31] The applicant does not claim additional child support for Emily for the summer months.
Children’s Health Care
[32] The respondent has available to him through his employment extended health and dental benefits. He is ordered to forthwith arrange and maintain the children on his extended health and dental coverage available through his employment so long as the children remain eligible for such coverage.
Income Disclosure
[33] As the children’s needs for support are ongoing, the parties are ordered to exchange income disclosure commencing May 1, 2025, and annually thereafter. They shall adjust table amount child support and s.7 expenses based on the prior year’s incomes, commencing June 1, 2025, and annually thereafter.
Spousal Support
[34] When the parties began dating, they both worked at a retail store in Marathon. The parties began cohabiting when the applicant was 20 years old. She did not finish high school but returned to complete her diploma at age 23.
[35] When the respondent was laid off his job at the retail store, he worked for a gas station, and then for a tire store for about ten years. He next worked at a propane store. He, too, was able to complete his GED and began work at Hydro One as a lineman in about 2007.
[36] The parties planned that the applicant would stay at home to care for their children once they arrived, and she did so. When Jada was very young, the applicant got a part-time job cleaning at the post office in the evenings.
[37] Because the respondent was then working at Hydro One and was called upon to work late with little warning, it was not feasible for the applicant to find substitute childcare while she worked. Consequently, she quit her cleaning job after two weeks. The parties decided that the applicant would stay at home and care for the children while the respondent would act as the breadwinner. These were the roles each performed during their traditional marriage.
[38] The respondent has not disclosed his earnings since 2021. That failure calls for an adverse inference to be drawn against him. Nevertheless, it is evident that his advancement at Hydro One from lineman to regional manager has generally placed his income on an upward trajectory, based on the trends in his disclosed income from 2014, net of union dues, as follows:
2014 $130,400
2015 $119,413
2016 $123,963
2017 $134,594
2018 $177,753
2019 $185,775
2020 $180,520
2021 $188,044
[39] Following separation, the children lived with the applicant who was their primary caregiver. The respondent’s work commitments took priority and his time with the girls became more sporadic, a pattern which continues to this day.
[40] The applicant deposes that she has basically been a single parent to the children, taking responsibility for transporting them to their activities and competitions, supporting their schooling, helping them apply for jobs and university and getting Emily established each year at university, without assistance from the respondent.
[41] The applicant was limited in obtaining sustaining employment due to her lack of education, her home responsibilities, and the limitations of employment in Marathon, relegating her to minimum wage jobs.
[42] Following separation, the applicant deposes that she made efforts to find work. She received public assistance. In addition, she worked as a lunch supervisor at school one hour per day. She did seasonal work in the kitchen of the golf course, and she worked sporadically cleaning the doctors’ homes when they vacated.
[43] Ms. Osmond indicates that in order to earn a living wage working at a minimum wage job, it is necessary to work split shifts, which is not realistic, given her responsibilities for the children.
[44] However, for the purposes of calculating her entitlement to spousal support, and spousal support arrears, the applicant proposes that the court impute minimum wage income to her.
[45] Ms. Osmond also concedes that the respondent should be entitled to a reduction in spousal support arrears to account for the income tax deduction he would have received had he paid monthly. She submits that 20% is the appropriate amount as spousal support is her sole source of income and the respondent has not disclosed his actual income since 2021. Therefore, he has contributed to any lost tax benefits by his failure to make income disclosure despite orders that he do so.
[46] Ms. Osmond’s actual income based on her line 150 income tax filings is as follows:
2014 $7,349
2015 $16,816
2016 $7,671
2017 $11,105
2018 $0
2019 $7,470
2020 $17,327
2021 $4,466
2022 $29,592
2023 $29,592.
[47] As I have said, Ms. Osmond’ proposes that the court impute minimum wage earnings to her for purposes of spousal support on the basis that she is capable of working. She calculates minimum wage income, based on government adjustments (assuming a 35-hour work week for fifty-two weeks a year) as follows:
2014 $20,020
2015 $20,475
2016 $20,748
2017 $21,112
2018 $25,480
2019 $25,480
2020 $25,935
2021 $26,117
2022 $26,117
2023 $28,210 from January to September, increasing to $30,121 in October 2023.
[48] The applicant re-partnered and has been cohabiting with Mr. Moreau since February 2017. Unfortunately, her partner had a workplace accident in January 2021 that resulted in a serious brain injury, such that he is disabled from working. Ms. Osmond has become the caregiver for her partner. If she is not available, she makes arrangements for his family to assist him.
[49] Mr. Moreau’s sole source of income is WSIB. His total income in 2023 was $28,578.96. Recently, he has been advised that WSIB considers he has reached maximum recovery. He disputes his ability to return to work.
Entitlement to Spousal Support
[50] For the reasons that follow, I conclude that the applicant has proved her entitlement to receive compensatory and non-compensatory spousal support.
[51] Section 15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am., gives the court jurisdiction to award spousal support.
[52] Section 15.2(4) sets out the following factors for the court to consider when making such an order:
15.2(4) Factors – 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.
[53] Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order:
(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 disadvantages 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.
[54] The jurisprudence has established that there are three grounds upon which spousal support entitlement is based: compensatory support, needs-based non-compensatory support, and contractual support. See: Bracklow v. Bracklow, [1999] 1 S.C.R. 420. In this case, contractual support is not relevant.
[55] In Moge v. Moge, [1992] 3 S.C.R. 813, the Supreme Court of Canada held that spousal support provisions in the Divorce Act are intended to achieve an equitable sharing of the economic consequences of marriage and its breakdown.
[56] Compensatory support was defined by the Court of Appeal in Roseneck v. Gowling (2002), 62 O.R. (3d) 789 at para 61:
Compensatory support is intended to compensate a spouse upon the breakdown of the marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a consequence of raising children…
[57] In my view, there is ample evidence to establish that the applicant sacrificed opportunities to advance her education and obtain sustaining employment in order to care for the children and maintain the household. In doing so, she freed Mr. Osmond from these responsibilities and allowed him to pursue employment with Hydro One, rising through the ranks and being compensated accordingly, including with a pension and benefits. She has therefore been economically disadvantaged by the marriage and its breakdown.
[58] I conclude that she has established a strong claim for compensatory support. The disparity in the parties’ incomes since separation quantifies her sacrifice. The applicant has not participated in the workforce in any sustained way for almost two decades.
[59] An order for spousal support is warranted to recognize the applicant’s economic disadvantage and relieve her economic hardship.
Quantum and Duration of Spousal Support
[60] Section 9.1 of the Spousal Support Advisory Guidelines (“SSAG”) comments on amount and duration of spousal support awards when a strong compensatory claim is established:
A strong compensatory claim will be a factor that favours a support award at the higher end of the ranges both for amount and duration….Under the “with child support formula,” compensatory principles would also suggest that the more the recipient spouse gave up in the paid labour market, the higher one would go within the range…. What moves a case up or down the range is the relative strength or weakness of the compensatory claim.
[61] When considering the duration of spousal support claims once entitlement is established, the court should consider the objective of self-sufficiency set out in s. 15.2(4) of the Divorce Act.
[62] In Fisher v. Fisher, 2008 ONCA 11, 2008 232 O.A.C. 213, at para. 53, the Court of Appeal observed:
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…. 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.
[63] The Court of Appeal in Reisman v. Reisman, 2014 ONCA 109 at para 28 discussed the objective of self-sufficiency:
… However, promoting self-sufficiency cannot be the only consideration that determines the duration of a support order. The court also has to take into account the recipient spouse’s age, skills, education, opportunities for retraining and, importantly, her realistic prospects of being able to find a job that enables her to become self-sufficient.
[64] In the Reisman case, at para. 30, the Court of Appeal also observed that the SSAG advise indefinite support is warranted for long marriages, defined as twenty years or more.
[65] In A.A.M. v. R.P.K., 2010 ONSC 930, at para. 208, Justice Pazaratz noted that retroactive spousal support amounts should be calculated net of tax to account for the tax deductibility upon which the payment of periodic spousal support is premised.
Post-Separation Increases in the Payor’s Income
[66] The courts have determined that post-separation increases in the payor’s income may be considered on a case-by-case basis. See: A.A.M. v. R.P.K., at para. 203. The annotation by Phillip Epstein in Fisher v. Fisher, 2008 ONCA 11, 2008 232 O.A.C. 213 (Ont. C.A.), cited in A.A. M. v. R.P.K., discusses the various approaches to this issue, indicating that there is no automatic entitlement to increased spousal support when there is an increase in a spouse’s post-separation income.
[67] However, the annotation indicates that
… a direct contribution to future income earning potential by way of contributing to credentials or skills is a necessary precondition of sharing post-separation success. If the payor obtains skills or credentials during the marriage, the recipient is more likely to be entitled to share in the future increases of income. If the payor’s post-separation success flows from a job which is a different job than that which he had during the marriage, the court is more likely to reject a claim for the sharing of post-separation success. In contrast, where the payor’s job that generated the increased income is the same or similar to the payor’s job during the marriage, the court is more likely to allow the other spouse to share in the increased income. As well, where there was a long-term marriage with a complete integration of the parties’ personal and economic lives, there is more likely to be entitlement to share in a post-separation increase in income.
[68] In this case, the evidence establishes that the applicant’s assumption of child care and household responsibilities during marriage enabled the respondent to concentrate on his developing career with Hydro One, beginning as a lineman, and advancing to the role of regional manager that he occupies with Hydro One today.
[69] The applicant also deposes that since separation, the respondent assumed little responsibility for the children, and that his contact with the children became sporadic, preferring to give his attention to his work.
[70] I accept this evidence and conclude that the applicant’s contribution to the respondent’s career advancement and increased earning potential is continuing. In these circumstances, it is fair to allow her to access the respondent’s increase in earnings after separation that her withdrawal from the work force made possible.
[71] I also find that, given the disparity in the parties’ historic incomes, the applicant was wholly dependent on the respondent over their long-term cohabitation and marriage; thus, there was a complete integration of the parties’ personal and economic lives.
Does the Income of the Applicant’s Partner Affect her Entitlement to or Quantum of Support?
[72] The applicant’s partner filed an affidavit disclosing his income from WSIB for loss of earnings in the amount of $1,149.44 paid bi-weekly. His tax return for 2023 shows his total income at $28,578.96.
[73] The jurisprudence establishes that re-partnering does not automatically disentitle a former spouse from receiving support; it is simply a factor to be considered. See: Boland v. Boland, 2012 ONCJ 102, para. 106.
[74] In Colley v. Colley, 2013 ONSC 5666, at paras. 69 - 71, Justice Quinn distinguished between needs-based support and compensatory support when considering the effect of re-partnering on a spousal support variation application. While this application is for a final order and not for a variation of support, the distinctions Justice Quinn makes are still relevant. He observed:
[69] When considering the implications upon a need-based spousal support order of the re-partnering of a recipient spouse there are two important questions to ask:
a) Does the recipient spouse have a present need for support?
b) Does her new partner have a legal obligation to contribute to her expenses?
[70] Where the prior spousal support order contains a compensatory component, the following questions are appropriate:
a) Has the recipient spouse overcome the economic disadvantages arising from her role in the marriage so that there is no basis for continuing compensatory support?
b) Have compensatory concerns been fully addressed as of the date of the variation?
c) Should the court reduce or eliminate the need-based portion of the prior order, while maintaining the compensatory portion?
[71] The distinction between a compensatory and a non-compensatory spousal support order can be important because the former is less likely to be affected by the recipient spouse living with another man….
[75] In this case, Ms. Osmond submits that she began cohabitation with her new partner in February 2017. His obligation to support her would therefore not commence until after three years of continuous cohabitation: Family Law Act, R.S.O. 1990, c. F.3, as am. at s. 29(a), provided they were not parents of a child and in a relationship of some permanence: s. 29(b). She also submits that given his modest income, $28,578 from WSIB in 2023, any obligation for her support would be minimal. I agree with these submissions.
[76] The applicant also proposes that even though her new partner did not have a legal obligation for her support until February 2020, the court should calculate Mr. Osmond’s obligation for spousal support in the mid-high end of the SSAG range for the entire period of arrears owed by the respondent from the date of separation.
[77] I conclude that Ms. Osmond’s claim for compensatory support is on-going, and she has not achieved self-sufficiency. Even though she also has a needs-based claim for support, her new partner is not able to meet her needs. Therefore, Mr. Moreau’s income does not affect the applicant’s entitlement to or quantum of support.
Spousal Support Arrears
[78] Despite Mr. Osmond’s failure to disclose income, the applicant proposes to base her support order on his last-disclosed income in 2021 and to have the court impute full-time minimum wage income to her. This is a generous submission.
[79] Imputing income to her based on minimum wage earnings as they change over the years, the quantum of spousal support arrears should be fixed at the mid-high range of the SSAGs fixed as follows:
| Respondent’s Income | Applicant’s Income | Year | Owed | Total Owed |
|---|---|---|---|---|
| $130,400.00 | $20,020.00 | 2014 | $2,157.00 / month x 9 (April to December) | $19,413.00 |
| $119,413.00 | $20,475.00 | 2015 | $1,694.50 / month x 12 (January to December) | $20,334.00 |
| $123,963.00 | $20,748.00 | 2016 | $1,453.00 / month x 12 (January to December) | $17,436.00 |
| $134,594.00 | $21,112.00 | 2017 | $1,734.50 / month x 12 (January to December) | $20,814.00 |
| $177,753.00 | $25,480.00 | 2018 | $2,994.00 / month x 12 (January to December) | $35,928.00 |
| $185,775.00 | $25,480.00 | 2019 | $3,178.50 / month x 12 (January to December) | $38,142.00 |
| $180,520.00 | $25,935.00 | 2020 | $2,982.50 / month x 12 (January to December) | $35,790.00 |
| $188,044.00 | $26,117.00 | 2021 (2 kids) | $3,439.00 / month x 8 (January to August) | $27,512.00 |
| $188,044.00 | $26,117.00 | 2021 (1 kid) | $3,975.00 / month x 4 (September to December) | $15,900.00 |
| $188,044.00 | $27,300.00 | 2022 | $3,908.50 / month x 12 (January to December) | $46,902.00 |
| $188,044.00 | $28,210.00 | 2023 (Jan–Sep) | $3,858.50 / month x 9 (January to September) | $34,726.50 |
| $188,044.00 | $30,121.00 | 2023 (Oct–Dec) | $3,782.00 / month x 3 (October to December) | $11,346.00 |
| $188,044.00 | $30,121.00 | 2024 (Jan–May) | $3,782.00 / month x 5 (October to December) | $18,910.00 |
| Total Amount Owed | $343,153.50 | |||
| Total Amount Paid | $240,742.78 | |||
| Total Amount of Arrears | $102,410.72 | |||
| -20% | $81,928.58 |
[80] The respondent shall therefore pay to the applicant spousal support arrears fixed at $102,410.72 less 20% for income tax for a net amount of $81,928.58 as of June 1, 2024.
Quantum of on-going Spousal Support
[81] The applicant deposes that, apart from the Child Tax Credit, she is wholly dependent on spousal support from the respondent. Her monthly expenses (including for the children) are $7,980, which when annualized, amounts to $95,969. Her principal assets are a locked-in share in the respondent’s pension valued at $61,665 and a half-interest in a modest home of which her share is valued at $48,500.
[82] It is unlikely that because of the applicant’s absence from the labour force, her age, her lack of skills and her location in Marathon where there are few work opportunities for unskilled labour, that she will be able to become self-sufficient without spousal support.
[83] There has been and continues to be a marked disparity in the parties’ incomes even when the applicant’s annual income is imputed based on increments in minimum wage since separation. She has been economically disadvantaged by the roles she adopted during the marriage and needs on-going support to bring her up to the standard of living she enjoyed during the parties’ long-term, traditional marriage.
[84] The respondent shall therefore pay to the applicant spousal support in the amount of $3,782 per month commencing June 1, 2024, based on the respondent’s 2021 income of $188,044 and the applicant’s imputed income of $30,121 per year, which is in the mid-high range of the SSAG calculations.
[85] The applicant proposes that spousal support be reviewable in August 2025. In view of the respondent’s failure to disclose his income, an order for review in August 2025 is granted.
Interest
[86] All awards of support are subject to post-judgment interest pursuant to the Courts of Justice Act.
Life Insurance
[87] In order to secure the payment of child and spousal support or arrears, the respondent is ordered to maintain a life insurance policy in the amount of $350,000 and name the applicant as irrevocable beneficiary on the policy for so long as child or spousal support or arrears of support are payable.
Divorce
[88] The parties’ divorce is severed from the claim for corollary relief argued herein. The applicant may apply upon filing the appropriate supporting materials.
Costs
[89] The applicant is entitled to her costs of the summary judgment motion which shall be enforceable as an incident of support by the Family Responsibility Office. Counsel shall make submissions in writing, not to exceed 5 pages, within thirty days, exclusive of offers to settle and bills of costs.
“originally signed by”
The Hon. Madam Justice H. M. Pierce
Released: August 7, 2024
COURT FILE NO.: FS-15-0129-00
DATE: 2024-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tammy Lynn Osmond
Applicant
- and –
Dwayne George Osmond
Respondent
Reasons on Motions for Summary Judgement
Pierce J.
Released: August 7, 2024