2014 ONSC 6064, 2014 ONSC 6064

CITATION : B.D.C. v. M.C.M., 2014 ONSC 6064 COURT FILE NO.: FC-13-1053 DATE: 20141017 SUPERIOR COURT OF JUSTICE - ONTARIO RE: B.D.C., Applicant (Responding Party) AND M.C.M., Respondent (Moving Party) BEFORE: Blishen J. COUNSEL: J. Whyte, Counsel for the Applicant (Responding Party) M. Wonham, Counsel for the Respondent (Moving Party) HEARD: October 16, 2014 ENDORSEMENT ON MOTION Introduction [ 1 ] The Respondent Ms. M.C.M. brought a motion requesting temporary spousal support at the high end of the range outlined in the Spousal Support Advisory Guidelines (“ SSAG ”) based on the incomes of the parties.

There is currently a without prejudice order made in July, 2014 that Mr. B.D.C. pay $1,000 per month in spousal support. Background [ 2 ] The parties were married June 20, 1988 and for purposes of this motion I find they separated on May 13, 2013 when the applicant served the respondent with the court application. [ 3 ] The parties have four children: B. and C., born […], 1999, and a second set of twins, A. and E. born […], 2003. [ 4 ] After separation, the parties continued to live separate and apart in the matrimonial home.

The Children’s Aid Society of Ottawa (“CAS”) became involved with the family and in July, 2014, given the tension in the household and its effect on the children, the CAS made it clear that the parties had to live in separate residences. [ 5 ] At a Settlement Conference held on the CAS’s application under the Child and Family Services Act , R.S.O. 1990, c. C.11, as am. (“ CFSA ”) in July, 2014, Ms. M.C.M. agreed to leave the matrimonial home. The parties agreed that she would receive an advance of $4,000 on the equalization payment to assist with her move. In addition, Mr.

B.D.C. was ordered to pay spousal support of $1,000 per month on a temporary without prejudice basis. [ 6 ] Ms. M.C.M. initially resided with her mother and was then able to rent a townhouse near the matrimonial home for $1,495 per month. Three of the four children remained in the primary care of Mr. B.D.C. in the matrimonial home while C. was placed in the care and custody of the CAS where she remains. At the present time, Ms. M.C.M. has access to the younger two children, A. and E., every second weekend and one evening per week. [ 7 ] Although Ms.

M.C.M. has two university degrees, after B. and C. were born in […], 1999, she remained in the home and was the primary caregiver for the children while Mr. B.D.C. worked with the Federal Government on a full-time basis. [ 8 ] Approximately three years ago, Ms. M.C.M. began to work part-time and in 2013 was employed by the Ottawa-Carleton District School Board (“OCDSB”) as a lunch monitor and the Ottawa Safety Council as a school crossing guard at the school the two younger children attend. Ms. M.C.M.’s gross income from all sources in 2013 was $9,102.16.

The July 4 and 5, 2014 pay stubs she attached to her August, 2014 financial statement indicate a year to date income from her employment with the Ottawa Safety Council of $3,887.98 and from her employment with OCDSB of $2,972.20 for a total up to the beginning of July, 2014 of $6,860.18. In her affidavit sworn September 8, 2014 Ms. M.C.M. indicates her income up to the end of June, 2014 was $3,887.98. This does not appear to be an accurate reflection of her income from both OCDSB and the Ottawa Safety Council. [ 9 ] Ms. M.C.M. did not file an up to date financial statement.

The only financial statement provided with the two pay stubs attached was dated August 18, 2014. Therefore, for the purposes of this motion, I find Ms. M.C.M.’s 2014 income to be $6,860.18 for six months = $1,143.36 per month for nine months (school year) for a total of $10,290.26. [ 10 ] Mr. B.D.C. is a Federal Government employee. His income in 2013 was $102,769 based on his salary and bonuses. The Compensation and Benefits Advisor with the government estimates Mr. B.D.C.’s gross income for 2014 to be $98,136.56.

It remains to be seen whether he will receive any bonuses and if so what those bonuses will be. [ 11 ] The SSAG calculations provided by counsel for employment incomes of $98,137 and $10,290, with the three children residing with Mr. B.D.C. and his mandatory union dues deduction, result in a range for spousal support of $1,522 at the low end of the range, $1,776 mid-range, and $2,030 at the high end of the range.

Positions of the Parties [12] Ms. M.C.M. argues she has a strong compensatory spousal support claim and her needs are such that she should receivespousal support at the high end of the range, which Mr. B.D.C. has the ability to pay. [13] Mr. B.D.C. argues he does not have the ability to pay more than the $1,000 per month previously ordered given: his currentexpenses, mandatory pension contributions, payment of the health and dental benefits for Ms. M.C.M. and the children, and the fact thathe wishes to refinance the matrimonial home in order to pay off debt and make the equalization payment owing to Ms. M.C.M..

Law and Analysis [14] Where an application has been made for spousal support, s. 15.2(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.(“Divorce Act”) indicates that the court may make an interim order requiring a spouse to pay such periodic sums “as the court thinksreasonable for the support of the other spouse, pending the determination of the application…” Thus, the issue is what is reasonable on atemporary basis until trial. In this case, the trial is to take place in February, 2015, approximately four months from now.

Although theobjectives of spousal support outlined under s. 15.2(6) of the Divorce Act are important considerations, the needs of the dependentspouse and the ability to pay of the payor spouse take on greater significance on a motion for temporary spousal support. [15] In Decker v. Fedorsen, [2010] O.J. No. 5661 (QL), 2010 ONCJ 618 , Justice Stanley Scherr summarizes a number ofcases which set out the principles and considerations in dealing with a request for temporary spousal support. [16] At paras. 27-29, he notes the following: [27] In Kowalski v. Grant, 2007 MBQB 235 , 219 Man.

R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007CarswellMan 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions: 1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. 2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party sufferedeconomic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge. 3.

Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as theclaimant is able to present a triable case for economic disadvantage. 4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case inits entirety must await a final hearing. [28] In Robles v. Kuhn, 2009 BCSC 1163 , [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009CarswellBC 2239 (B.C.S.C.), the court added the following considerations: 1.

On interim support motions, needs and ability take on greater significance. 2. On interim motions, the need to achieve self-sufficiency is of less importance. 3. Interim support should be ordered within the Spousal Support Advisory Guidelines (SSAG) range unless exceptionalcircumstances dictate otherwise. 4. Interim support should only be ordered where a prima facie case for entitlement has been set out. [29] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 , 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 CarswellOnt 43 (Ont.

C.A.), stated that the SSAG, while only advisory, are a useful startingpoint to assess the quantum of spousal support, once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921 , 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006 CarswellBC3177 (B.C.S.C.). [17] Mr. B.D.C. acknowledges that there is a prima facie case for entitlement. However, he argues he does not have the ability topay more than $1,000 per month in temporary spousal support. [18] In that regard, I note the following: 1.

His estimated gross employment income does not include bonuses which he has historically received. Mr. B.D.C.’s income in 2013was $102,769; in 2012 $106,565; and in 2011 $104,435. Therefore, it is likely his income will be higher than the estimated $98,137.However, he does have an annual deduction for pension contribution of $9,952. 2. Some of the monthly expenses outlined on his recent financial statement could be reduced or eliminated in favour of an adequateamount of spousal support.

For example, $200 per month for meals outside the home, $170 per month for gifts, entertainment andrecreation, and in particular $800 per month in debt payments as well as $1,000 per month for legal fees. While it is inappropriate to disregard Mr. B.D.C.’s debt obligations, I agree with the comment made by O’Neill, J. in Borden v. Racicot, (ON SC), 39 R.F.L. (5th) 241 that: The obligation in Canada to pay interim spousal support as a matter of justice and social responsibility is at least as important, if not more

important, than the obligation to retire commercial and family debts. 3. Although Mr. B.D.C. is anxious to refinance the matrimonial home in order to settle his debts and make the equalization payment, there is no evidence from any lending institution indicating that a higher amount of monthly spousal support would affect his ability to do so.

In addition, although I agree it is important for the children to remain in the relative stability of the matrimonial home in particular given the previous turmoil and involvement of the CAS, I do not find immediate refinancing should take precedence over an adequate amount of temporary spousal support. [ 19 ] Therefore, I find that Mr. B.D.C. has the ability to pay significantly more than $1,000 per month temporary spousal support. [ 20 ] Ms. M.C.M. argues in order to meet her basic needs she requires spousal support at the high end of the range being $2,030.

She indicates her monthly costs for basic necessities are: $1,495 rent; $400 hydro; $450 food; $118 bus; and $200 tobacco for a total of $2,663. Based on the pay stubs attached to her financial statement, I have found her monthly gross income to be approximately $1,143. Her monthly net income is approximately $1,096. She would therefore require $1,567. Even reducing her tobacco costs to $100 per month would do little to provide Ms. M.C.M. with a lifestyle approaching that which she enjoyed when residing with her husband and the children in the matrimonial home.

Her budget for basic needs does not include anything for household supplies, laundry, clothing or entertainment. [ 21 ] As previously noted, I find the appropriate SSAG ranges in this case to be $1,522 per month in the low range, $1,776 in the mid-range, and $2,030 in the high range. A temporary order in the mid-range would leave Mr.

B.D.C. and the children with 70.6 per cent of the family’s Net Disposable Income (“NDI”) while an order in the high range would leave them with 67.8 per cent of the NDI. [ 22 ] I find a payment between the mid and high range to be reasonable in this case given the length of the relationship, the needs of the parties, their expenses, Mr. B.D.C.’s ability to pay, and the lifestyle the family enjoyed while residing together. Therefore, Mr. B.D.C. will be ordered to pay Ms. M.C.M. the sum of $1,850 per month for temporary spousal support which will be tax deductible for him and tax inclusive for Ms. M.C.M..

This will commence on November 1, 2014 and will be payable on the first of each month thereafter until further order of the court. Costs [ 23 ] If the parties cannot reach an agreement on costs, an appointment can be made through the Trial Coordinator’s office for brief oral submissions totalling no more than a half hour. Blishen J. Date: October 17, 2014 CITATION : B.D.C. v. M.C.M., 2014 ONSC 6064 COURT FILE NO.: FC-13-1053 DATE: 20141017

ONTARIO SUPERIOR COURT OF JUSTICE RE: B.D.C., Applicant (Responding Party) AND M.C.M., Respondent (Moving Party) BEFORE: Blishen J. COUNSEL: J. Whyte, Counsel for the Applicant (Responding Party) M.C.M., Respondent (Moving Party) ENDORSEMENT ON MOTION Blishen J. Released: October 17, 2014