Carty-Pusey v. Pusey, 2015 ONCJ 382

Milton Registry No. 186/15 DATE : 2015/07/06 Citation: Carty-Pusey v. Pusey , 2015 ONCJ 382 ONTARIO COURT OF JUSTICE RE: KAREN CARTY-PUSEY — Applicant WINSTON FITZGERALD PUSEY — Respondent BEFORE: Justice Sheilagh M. O’Connell COUNSEL: Mr. David Sherr, for the Applicant Mr. Nav Rai, for the Respondent HEARD ON : 2 June 2015 REASONS FOR ORDER 1: INTRODUCTION [ 1 ] This is a temporary motion for spousal support. The applicant seeks spousal support in the amount of $2,125.00 per month commencing on 1 June 2015, retrospectively to 1 April 2015, and retroactively to 1 March 2015.

The amount sought is higher than the amount set out in the Spousal Support Advisory Guidelines . The applicant is further seeking that income be imputed to the respondent in the amount of $103,000.00. [ 2 ] The parties separated in February of 2015 after a four-year marriage. The respondent agreed to sponsor the applicant after the marriage, but then changed his mind.

The applicant is currently without status in Canada and has now applied for permanent residency on humanitarian and compassionate grounds. [ 3 ] The applicant states that she continues to be fully financially dependent upon the respondent as a result of the delay in her application for permanent residency. She has no source of income other than Ontario Works.

If the sponsorship application had been submitted, she could have received an open or work permit, thereby allowing her to work or to attend school on a full-time basis and achieve self-sufficiency. [ 4 ] The respondent disputes that the applicant has been dependent upon him financially during the marriage. He submits that he should not have an obligation to pay support to the applicant given her undisclosed cash income and continued employment as a domestic helper and babysitter.

He further submits that any amount of support obligation would cause undue economic hardship given his existing child support obligations to his children of a previous relationship and his financial circumstances. [ 5 ] The applicant sought leave to bring this motion before a case conference due to urgency. For the reasons that follow, leave is granted. 2: BACKGROUND [ 6 ] The parties are from the same community in Jamaica and were family friends. The applicant states that the parties briefly

carried on a relationship in the mid-1990s but drifted apart when the respondent moved to Canada. She states that they became involved again in 2010 when the respondent was in Jamaica for his father’s funeral. [ 7 ] The respondent states that, although the parties knew each other growing up in the same community in Jamaica, they did not have anything other than a platonic relationship. The respondent agrees that, in late 2010, he traveled to Jamaica to attend his father’s funeral and the applicant and her family attended to pay their respects.

However, he states that he did not have any other direct contact with the applicant whatsoever during this visit to Jamaica. [ 8 ] The respondent states that, in early 2011, the applicant called him, advising that she had obtained a visitor’s visa to tour Canada and United States and asked whether he would extend his apartment to her during her visit to Canada. He agreed and the applicant then visited with him at his home.

At the time, the respondent was living with his two children of a previous relationship in his apartment in Oakville, Ontario. [ 9 ] The applicant does not dispute that, in February of 2011, she came to Canada on a visitor’s visa and stayed with the respondent and his two children for a period of time before returning to Jamaica. It appears that sometime after this trip, the parties remained in contact and decided to get married. [ 10 ] The parties were married in Canada on 21 May 2011. They began living together permanently in July 2011 in the respondent’s home in Canada.

Prior to that time, they were residing together sporadically while the applicant travelled back and forth between Canada and Jamaica. [ 11 ] After their marriage, the respondent agreed to sponsor the applicant for permanent residency in Canada.

It is not disputed that the respondent signed multiple documents including the sponsorship application and a sponsorship undertaking on 4 March 2014. [ 12 ] The sponsorship undertaking to Citizenship and Immigration Canada requires the respondent to provide for the applicant’s basic needs, including food, clothing and shelter for a period of three years. [ 13 ] The parties continued to reside together until 10 February 2015, a period of approximately four years.

There are no children of the marriage. [ 14 ] The parties separated on 10 February 2015 as a result of an alleged assault by the respondent against the applicant. On or about 13 February 2015, the respondent was charged with assault causing bodily harm against the applicant. [ 15 ] The respondent denies assaulting the applicant. The respondent acknowledges that a physical altercation took place between the parties at their home on 10 February 2015, but he states that it was the applicant who initiated and aggravated the altercation between them.

He acknowledges that the applicant injured her arm during the altercation but, he states that she caused the injury, not him. [ 16 ] The applicant states that she was assaulted by the respondent on the date of separation. Following the assault, she left the home and sought shelter at the home of a friend. She states that she sought immediate medical attention through which it was determined that she suffered a scaphoid fracture in the wrist below her thumb. Her arm was put into a splint and later into a cast from 18 February 2015 until 11 March 2015. Her arm is now in a brace.

The applicant produced hospital reports from the time of the incident corroborating her injury. [ 17 ] The applicant states that this was not the first incident of abuse in their relationship but it was the most violent. She states that she is seeing a counselor twice per week and will continue with therapy for another year. [ 18 ] The respondent states that this was not the first time that the applicant had attempted to engage him in an altercation following their cohabitation in July 2011.

He states that, following their cohabitation, it became apparent to him that he had made a mistake by entering into a marriage with the applicant.

He believes that the applicant entered into the marriage in bad faith for the purpose of securing immigration status in Canada. [ 19 ] The respondent further states that, after the applicant moved into his apartment, her temperament towards himself and his children made it impossible for his children to remain in the home and his oldest (adult) daughter moved out, followed shortly by his son, who is currently attending college. [ 20 ] On 24 April 2015, the criminal charges were withdrawn against the respondent and he entered into a

section 810 peace bond and undertaking where he undertook not to communicate directly or indirectly with the applicant except through legal counsel and not to attend within 500 metres of the residence, workplace or place of education, recreation or workshop worship of the applicant. 3: THE SPONSORSHIP APPLICATION AND UNDERTAKING [ 21 ] The respondent states that, although he initially agreed to sponsor the applicant and signed the sponsorship undertaking, he advised the applicant in March of 2014 that he did not wish to complete the sponsorship process.

He states that, in early January of 2015, he received a call from the applicant’s immigration lawyer advising him that he was required to complete the sponsorship. He refused. He states that, shortly thereafter, the applicant initiated the 10 February 2015 altercation and fabricated the assault as a result of the respondent’s refusal to continue the immigration sponsorship. [ 22 ] The applicant states that her immigration status has been left in limbo for some time as a result of the respondent’s refusal to continue the sponsorship. She is living in Canada on an expired visitor’s visa or without status.

She has no open or work permit. Since the assault and the parties’ separation, the applicant has begun to pursue her application for permanent residency on humanitarian

compassionate grounds. [ 23 ] The applicant has had two interviews with Canadian Immigration and Citizenship and a third and final interview will be scheduled shortly. At that interview, she will be advised whether or not her permanent residency application will proceed. During the course of argument, I was advised that the applicant may receive a work permit by August or September 2015. 4: THE APPLICANT’S FINANCIAL CIRCUMSTANCES [ 24 ] The applicant is 41 years old. She has a diploma from a school in Jamaica in business administration. She worked in outreach programs in Jamaica prior to coming to Canada.

The applicant intends to pursue a degree in social work in Canada given her experience doing outreach in Jamaica. The applicant has investigated the availability and length of programs in Canada and she anticipates that she would require two to three years of school to obtain her degree in social work. [ 25 ] The applicant is currently unemployed and residing in a shelter. Following the alleged assault, she resided temporarily in the matrimonial apartment until the respondent stopped making rental payments once he was criminally charged and removed from the home.

The applicant received a notice to end tenancy for non-payment of rent and she moved to the shelter in March of 2015. [ 26 ] The applicant has applied for Ontario Works and receives approximately $630.00 per month, $400.00 of which goes to the shelter for housing expenses. She has also applied for subsidized housing and she is currently on a waitlist. [ 27 ] The respondent states that, prior to separation, the applicant was working full-time providing domestic housecleaning and babysitting services.

He states that she regularly earned “cash income” in excess of $400 per week and that she used the money to buy her own clothing, shoes, jewellery and other personal expenses, as well as to send money home to her family in Jamaica. The respondent produced copies of wire transfers showing money sent to the applicant’s mother and sister in Jamaica prior to the separation, presumably by the applicant. He states that she also retained an immigration lawyer privately using her own funds. [ 28 ] The applicant denies this.

In her financial statement sworn on 14 May 2015, the applicant does not set out any income or any source of income. In her application, dated 12 March 2015, although not sworn evidence, the applicant states that she earned small sums of cash through babysitting for neighbours during the marriage, but no more than $300.00 per month.

However, her arm in currently in a brace as a result of the injury that she sustained during the altercation between the parties and she is unable to work. [ 29 ] The applicant does not have OHIP coverage because of her lack of immigration status and she has incurred medical bills totaling $1,360 as a result of the injuries sustained during the parties’ altercation on 10 February 2015. The applicant has paid $400 towards these medical bills but there is still an outstanding debt of $960.00.

The applicant states that physiotherapy has been recommended on an ongoing basis but she has no means to pay for that treatment. 5: THE RESPONDENT’S FINANCIAL CIRCUMSTANCES [ 30 ] The respondent is 56 years old. He has been living in Canada for 22 years. He is self-employed as a transport truck driver and earns his income through his own solely controlled numbered corporation. The respondent leases his truck through another numbered corporation.

He has no assets. [ 31 ] According to the respondent’s financial statement, sworn on 4 May 2015, his current monthly income is $3,083.33 or approximately $37,000 per annum. His total amount of yearly expenses, as set out in his sworn financial statement, is $56,800.32. [ 32 ] The respondent produced notices of assessment from Canada Revenue Agency for 2013, 2012 and 2011.

His 2013 notice of assessment indicated a total line 150 income of $28,750, his 2012 notice of assessment indicated total income of $20,000, and his 2011 notice of assessment indicated a total income of $38,750. [ 33 ] The respondent also produced his corporate financial statements for the years 2012, 2013 and 2014. These financial statements were prepared by his accountant. According to the financial statements, the respondent’s gross revenue for 2014 was $102,005; for 2013 his gross revenue was $82,049; and for 2012 his gross revenue was $105,090. 6: THE LAW AND GOVERNING PRINCIPLES [ 34 ] In Kowalski v.

Grant , 2007 MBQB 235 , 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars​well​Man 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 suffered economic 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 the claimant is able to present a triable case for economic disadvantage. Interim support is to be based on the parties' means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing. [ 35 ] 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, 2009 Cars​- well​BC 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. [36] In determining whether the applicant has made out a case for entitlement, the court is also required to consider the objectivesof a spousal support order that are set out under subsection 33(8) of Family Law Act, which are as follows:

(8) Purposes of order for support of spouse.— An order for the support of a spouse should, (

a) recognize the spouse’s contribution to the relationship and the economic consequences of therelationship for the spouse; (

b) share the economic burden of child support equitably; (

c) make fair provision to assist the spouse to become able to contribute to his or her own support;and (

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) andII (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33(8); S.O. 1999, c. 6, s. 25(5); S.O 2005, c. 5,s. 27(9). [37] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740,196 W.A.C. 211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, , [1999] S.C.J.

No. 14, 1999 Cars​well​BC 532, the SupremeCourt of Canada recognized three bases for an award of spousal support: 1. compensatory, based on the economic circumstances of each spouse's role during the marriage; 2. non-compensatory, based on need in circumstances where a spouse cannot become self-sufficient; and 3. contractual, based on an agreement between the parties. 7: ANALYSIS 7.1: Entitlement [38] A finding of entitlement is necessary before determining the quantum of spousal support, if any.

As this is a temporarymotion, support should only be ordered when a prima facie case for entitlement has been made out. [39] In this case, there is little evidence of a compensatory basis for support. It was not disputed that the applicant had a businessdiploma from Jamaica and some experience doing outreach work there. However, there was no evidence of the applicant’s financialcircumstances in Jamaica, whether she gave up her career, the security of employment, or other future opportunities to marry therespondent in Canada.

Further evidence will be needed to establish a compensatory basis for spousal support, if there is one. [40] As well, it is not disputed that the applicant first came to Canada on her own for travel purposes on a visitor’s visa. She wasnot sponsored by the respondent to come to Canada for marriage. As such, this is not what may be described as a more typicalimmigration sponsorship case. [41] Nevertheless, after re-connecting in Canada, the parties did marry and the respondent agreed to sponsor the applicant, andsigned an undertaking to support her.

Their marriage lasted four years and, at separation, the applicant had little or no income to meether basic needs, nor was she able to work legally in Canada after the respondent refused to proceed with the sponsorship agreement. [42] As such, the applicant clearly has a need for spousal support.

She is attempting to become self-sufficient by planning to obtaina degree in social work, but she currently has no source of income other than social assistance and she is homeless, living in a shelter. [43] Even if I accept the respondent’s statements that the applicant was earning cash income during the parties’ marriage as adomestic cleaner and babysitter, the injury to her arm makes it difficult if not impossible for her to work at this time. The hospitalrecords attached to the applicant’s affidavit corroborating the fracture to her arm were not disputed by the respondent.

Further, theapplicant is clearly not permitted to work in Canada without a work permit. The respondent did not dispute that the applicant iscurrently not working or able to work. [44] The applicant’s entitlement may be reviewed once she has obtained her work permit and is able to generate some employmentincome while attending school.

The applicant speaks English well, is educated and did not dispute that she earned some incomeproviding babysitting services during the parties’ marriage, although not at the level or amount stated by the respondent. [45] I also find that the applicant is entitled to spousal support on a contractual basis. The respondent agreed to sponsor theapplicant and to meet her financial needs for three years after they decided to get married in Canada.

It is not disputed that he signed thesponsorship application and the sponsorship undertaking, a copy of which was attached as an exhibit to the applicant’s affidavit. [46] The respondent argues that according to

section 5.19 of the Canada Immigration and Citizenship Manual on ProcessingApplications to Sponsor Members of the Family Class,[1] a sponsorship undertaking does not take effect until the day the sponsoredperson becomes a permanent resident. He argues that, because the application has not yet been approved, there is no undertaking ineffect and therefore, this is not a relevant consideration. [47] I reject this argument. The respondent executed a sponsorship undertaking and agreed to sponsor the applicant. The applicantrelied upon that agreement and undertaking.

The undertaking is also “binding contract” between sponsors and the Minister ofCitizenship and Immigration to provide the sponsored persons with basic requirements. According to

section 5.18 of the same manual

relied upon by the respondent, “a change in circumstances (e.g., marital breakdown, separation, divorce, family rifts, unemployment,change in financial circumstances or death of the principal applicant in cases in which there are accompanying family members) does notnullify the op undertaking; sponsors remain obligated to provide basic requirements for the period of the undertaking.” [48] Furthermore, the law is clear that the existence of an immigration sponsorship agreement is a relevant factor, although notnecessarily determinative, when considering entitlement to spousal support. See Pourian v.

Zaghian, , 158 A.C.W.S.(3d) 631, [2007] O.J. No. 2522, 2007 Cars​well​Ont 4116 (Ont. S.C.); Nathoo v. Nathoo, 2005 ABQB 175, 16 R.F.L. (6th) 313, [2005]A.J. No. 255, 2005 Cars​well​Alta 301 (Alta Q.B.); Ferron v. Ferron, , 31 R.F.L. (4th) 26, [1997] O.J. No. 3706, 1997Cars​well​Ont 3382 (Ont. Prov. Div.); Niranchan v. Nadarajah, 2015 ONCJ 149, 57 R.F.L. (7th) 425, [2015] O.J. No. 1400, 2015 Cars​-well​Ont 3868 (Ont.

C.J.). [49] The respondent further argues that the applicant entered into the marriage fraudulently and in bad faith for immigrationpurposes and that she fabricated an assault leading to serious criminal charges against him that were later withdrawn.

He submits that herconduct in coming to Canada solely to secure immigration status as well as fabricating the assault, should disentitle her to spousalsupport. [50] The applicant vigorously disputes the respondent’s claims and states that the respondent assaulted her and that he was abusivetowards her during the marital relationship. [51] Subsection 33(10) of the Family Law Act provides that the obligation to provide support for a spouse exists without regard toconduct of either spouse.

It is only when the court determines the amount of support that the court may consider the conduct of eitherspouse, but the conduct must be “so unconscionable as to constitute an obvious and gross repudiation of the spousal relationship”. [52] As this is a temporary motion, the only evidence before me was the competing affidavits of the parties.

There were no otheraffidavits and the parties were not cross-examined or questioned on their affidavits. [53] Pending a trial of these issues and a determination of credibility, I cannot make any findings of fact that would lead to theconclusion that the applicant’s conduct should disentitle her to spousal support, and certainly not on the very high threshold requiredunder subsection 33(10) of the Act. [54] What is not disputed is that the parties were married and lived together for four years in Canada and that, since the separation,the respondent has provided no support for the applicant, who is currently without income, homeless, and living in a shelter. [55] I therefore find, based only on the undisputed evidence before me, that the applicant has made out a prima facie case forentitlement under two of the three bases for an award of spousal support: non-compensatory based on need, and contractual based on anagreement between the parties, in accordance with the principles enunciated in Bracklow v.

Bracklow, supra. 7.2: Determination of the Respondent’s Income [56] In order to determine the quantum of spousal support to be awarded on a temporary basis, I must first determine therespondent’s income. [57] It is well settled law that, on a temporary motion for spousal support, the court can impute income. See the decisions ofKowalik v. Kowalik, 2011 ONSC 1551, 4 R.F.L. (7th) 225, [2011] O.J. No. 1065, 2011 Cars​well​Ont 1579 (Ont. S.C.); and Stoyshin v.Stoyshin, , 157 A.C.W.S. (3d) 375, [2007] O.J. No. 1772, 2007 Cars​well​Ont 2825 (Ont. S.C.).

As motions arelimited by the evidence available, it is incumbent on the person seeking a finding of imputation of income to provide the court with thesufficient information from which a reasonable inference could be drawn. This evidence generally involves the presence of some type ofdocumentary evidence that assists the court in reaching an estimate of the appropriate income. [58] A self-employed person has the onus of clearly demonstrating the basis of his or her net income.

This includes demonstratingthat the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v.O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, [2006] O.T.C. 409, 2006 Cars​well​Ont 2581 (Ont. Fam. Ct.). This principle also applies where the person's employment income is derived from a corporation that he or she fully controls. SeeMacKenzie v. Flynn, 2010 ONCJ 184, 188 A.C.W.S. (3d) 726, [2010] O.J. No. 2145, 2010 Cars​well​Ont 3450 (Ont. C.J.). See alsoMeade v. Meade, , 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, 2002 Cars​well​Ont 2670 (Ont.

S.C.J.); and Orser v. Grant(2000), 96 A.C.W.S. (3d) 644, [2000] O.J. No. 1429, 2000 Cars​well​Ont 1354 (Ont. S.C.). [59] The test for imputing income for child support purposes applies equally for spousal support purposes. See Rilli v. Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006 Cars​well​Ont 6335 (Ont. Fam. Ct.); Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​well​Ont 7171 (Ont. S.C.). [60] Paragraph 19(1)(

f) of the Child Support Guidelines also provides that income may be imputed when a person unreasonablydeducts expenses from income. The reasonableness of the deduction is not solely governed by whether the deduction is permitted forincome tax purposes. [61] I find that income can be imputed to the respondent for spousal support purposes applying the above principles. [62] There is no evidence to suggest that the respondent is under-employed and the applicant is not advancing this basis to imputeincome.

However, I do find that a number of the business expenses that the respondent has deducted from his gross business incomehave not been adequately explained or are unreasonable, and should be added back into his income for spousal support purposes. [63] In reviewing the respondent’s corporate financial statements, his largest expense is automotive, presumably including theleasing and fuel expenses for his truck. Following that, the bulk of the expenses are for a “management salary”, “office and general

expenses”, “professional fees”, and “telephone expenses”. [64] There is no evidence that the respondent, as a self-employed truck driver employs a manager, so presumably the “managementsalary” is paid to him. Further, the respondent has deducted “office and general expenses” of $10,562 in 2012, $9,140 in 2013, and$5,877 in 2014.

The respondent does not dispute that there is no dedicated office in his apartment, nor is there any evidence why therespondent would need office and general expenses in that amount as a transport truck driver. [65] The respondent has also deducted his telephone expenses of $2,978 in 2014, $3,171 in 2013, and $5,000 in 2012. Theevidence indicates that his work-related telephone expenses are paid for by the company that he provides transportation and freightservices, a numbered company known as Low Risk.

The respondent did not dispute this. [66] In my view, some of the business expenses that the respondent has deducted from his gross income on its face appearunreasonable and should be added back for support purposes. I calculate that at a bare minimum, at least $10,000 could be added back tothe respondent’s income for spousal support purposes. [67] In addition, a letter from the respondent’s accountant attached to his 2013 corporate financial statement indicates that therespondent was due a bonus of $37,000 by 28 March 2014.

It was not clear from the evidence whether the respondent actually receivedsuch a payment. It also appears that the respondent was due a bonus of $43,500 by 28 March 2013 according to the letter attached fromhis accountant for his 2012 financial statement. [68] The applicant has submitted in an alternative argument that the respondent’s income should be imputed at $56,000 per annum. I find this to be a reasonable amount in reviewing the respondent’s corporate financial statements.

It is also in keeping with his swornfinancial statement, which indicates annual expenses of $56,000 per annum despite an income stated to be only $37,000 per annum,which he describes as a “draw from income”, and very little if no explanation in his financial statement to explain the obviousdiscrepancy between his income and expenses. [69] It is possible that, at a trial or upon further explanation and proof of the deductions from his gross income, the respondent candemonstrate that these deductions are reasonable.

However this is a temporary motion and I find that imputing the respondent’s grossincome at $56,000 per annum is fair and reasonable, subject to further adjustment as may be necessary. 7.3: Quantum of Spousal Support Payable [70] The applicant has attached a proposed budget to her financial statement and is seeking spousal support in the sum of $2,125per month, pending the issuance of her work permit, with such payments made retroactive to March 1, 2015. [71] The respondent states that any amount of spousal support would be unduly punitive and would cause undue economichardship, given his existing child support obligations and financial circumstances.

As noted earlier, he disputes that the applicant hasbeen dependent on him financially given her cash income in providing cleaning and babysitting services. [72] As the court noted in Robles v. Kuhn, supra, interim support should be ordered within the Spousal Support AdvisoryGuidelines (SSAG) range, unless exceptional circumstances dictate otherwise. 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 Cars​well​Ont 43 (Ont.

C.A.),stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement isestablished. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, 63B.C.L.R. (4th) 331, [2006] B.C.J.

No. 3299, 2006 Cars​well​BC 3177 (B.C.S.C.). [73] Based on the applicant’s current income of zero and the respondent’s income of $56,000, and recognizing that the respondentis paying child support for his two children of a previous relationship totaling $831.00 monthly,[2] the SSAG provides that spousalsupport for the applicant would only be in the range of $214 to $285 per month for duration of two to four years from the date ofseparation.[3] Even at the high range, the amount would leave the respondent with 88.8% of the net disposable income and would leavethe applicant was only 11.2% of net disposable income. [74] As Justice Roselyn Zisman noted in Niranchan v.

Nadarajah, supra, at paragraph [52] of that decision, although the SSAGformula is intended to apply to the vast majority of cases, there will be unusual or atypical cases where the formula generates results thatare inconsistent with the support factors and objectives found in the legislation. An appropriate result can only be achieved by departingfrom the formula. [75] In particular, the SSAG recognized that the formula may create specific problems for short marriages without children wherethe recipient has little or no income at the time of separation.

A number of exceptions are outlined in the explanatory notes to the SSAGin cases involving short marriages without children.

The exceptions that apply in this case are the exceptions for compelling financialcircumstances in the interim, and the basic needs/hardship exception.[4] [76] The “basic needs/hardship exception” was added in the Final Version of the SSAG to recognize the specific problem withshorter marriages where the recipient has little or no income and the formula is seen as generating too little support for the recipient tomeet his or her basic needs for any transitional period that extends beyond the interim exception. See Simpson v. Grignon, , 39 R.F.L. (6th) 329, [2007] O.J. No. 1915, 2007 Cars​well​Ont 3095 (Ont. Fam.

Ct.).[5] [77] Further, in The Spousal Support Advisory Guidelines: A New and Improved User Guide to the Final Version (2010),Professors Carol Rogerson and Rollie Thompson noted specifically that some of the identified exceptions to the SSAG may be relevant inshort marriages involving immigration sponsorship agreements, justifying a departure from the formula ranges.[6] [78] In this case, the applicant currently has no income and she will be unable to earn any further income while recovering from herinjury and waiting for her work permit. She is also hoping to return to school to become self-sufficient.

She cannot meet her very basic

expenses without the financial assistance of the respondent. In my view, the spousal support amounts provided in the SSAG would not result in a fair amount to the applicant as it does not even meet her basic needs. [ 79 ] In reviewing the applicant’s proposed budget, I note that she has indicated monthly expenses of $1,000 monthly for rent, $100 for cable and internet expenses, and $300 for hair care, beauty and meals outside the home. The applicant deposed that she has applied for subsidized housing and is currently on a prioritized waiting list, which she will hopefully receive shortly.

I am also mindful of the principles that guide me on temporary spousal support motions, which require the court to determine support on a means and needs basis pending a trial or further review. [ 80 ] In looking at the applicant’s needs and the respondent’s ability to pay, and taking into consideration the likelihood that applicant will receive subsidized housing, a fair and reasonable amount of spousal support is $1,000.00 per month on a temporary basis. [ 81 ] Although this amount is significantly higher than the high end of support calculated under the Spousal Support Advisory Guidelines , this case falls under the exceptions outlined under the Guidelines , taking into account the applicant’s immediate basic needs, the respondent’s immigration spousal undertaking to support her, and his ability to pay. [ 82 ] This amount of support will commence on 1 April 2015, given that the application for support was commenced on 26 March 2015 and served shortly thereafter.

The respondent has paid no support to the applicant since separation. [ 83 ] During the course of argument, I was advised that the applicant may receive her work permit as early as August or September of this year. The temporary spousal support order should therefore be reviewed pending the issuance of the applicant’s work permit. 8: ORDER [ 84 ] There will be a temporary order as follows: 1. The respondent shall pay spousal support of $1,000 per month to the applicant, commencing on 1 April 2015. 2.

Spousal support arrears are fixed at $ 4,000.00 and payable forthwith or at a rate of no less than $100.00 per month, commencing forthwith, unless counsel agree on a different re-payment

schedule that can be submitted to the court by means of a Form 14B motion. 3. The temporary support order shall be reviewed when the applicant is issued a work or open permit, or otherwise resumes working. 4. A support deduction order shall issue. [ 85 ] If counsel cannot agree on costs, the applicant shall serve and file her cost submissions not to exceed three pages with a bill of costs and any offer to settle attached, within 14 days.

The respondent shall serve and file his response not to exceed 3 pages with a bill of costs and any offer to settle attached, within 14 days thereafter. [ 86 ] I thank both counsel for their excellent advocacy and preparation on this motion. ___________________________ Justice Sheilagh M. O’Connell DATE: 6 July 2015