Watts v. Watts, 2011 ONCJ 104

Toronto (North York) Registry No. D50959/10 DATE: 2011·III·07 CITATION: Watts v. Watts , 2011 ONCJ 104 ONTARIO COURT OF JUSTICE BETWEEN: OXANA WATTS, Applicant, — AND — MALCOLM WATTS, Respondent. Before Justice Robert J.

Spence Heard on 1 and 2 March 2011 Reasons for Judgment released on 7 March 2011 SUPPORT ORDERS — Entitlement — Child — Demonstration of settled intention to treat child as family member — Indicia of “settled intention” — Distinction between clear and conscious acceptance of spouse’s child as family member and merely courteous and even affectionate but passive recognition of child as collateral of spouse — When parties married abroad 2½ years ago, wife had daughter (now 17 years old) by previous relationship, husband sponsored admission into Canada of not only his wife but also of child, well aware that child was part of “package deal” — Only on one occasion did husband introduce girl to his sister and brother-in-law as “our child” — But otherwise, evidence was that, during 16-month marriage, he and girl hardly spoke to each other because of language barriers — He never participated in her discipline — She never referred to him as “daddy” and she still maintained some connection with her own natural father — Court agreed with case law that threshold for finding of parental status under test of “settled intention” had to be pegged at sufficiently high level, lest stepparent get stuck for long-term financial obligation simply for being “nice person”, “good Samaritan” or friend to new spouse’s child — In this case, relationship between husband and wife’s daughter was cordial or pleasant but he had never assumed role of natural parent vis-à-vis this girl — No demonstration of any settled intention to treat girl as child of husband’s family — Mother’s claim for child support dismissed.

SUPPORT ORDERS — Entitlement — Child — Role of support provision in sponsorship agreement with immigration authorities — When parties married abroad 2½ years ago, wife had daughter (now 17 years old) by previous relationship, husband sponsored admission into Canada of not only his wife but also of child, well aware that child could not be left behind and was part of “package deal” — Court ruled that sponsorship agreement was clearly factor in court’s decision on issue of child support, but it was only one factor of many and should not be interpreted to impose support obligations greater than those imposed by family law statute — In this case, brief 16-month marriage was at best rocky and, although he was cordial and pleasant with wife’s daughter (then 15 years old), husband never demonstrated settled intention to treat girl as his own child — Court dismissed mother’s claim for child support.

SUPPORT ORDERS — Entitlement — Spouse — Objective of spousal support — Mix of compensatory and non-compensatory support — After parties married abroad 2½ years ago, Canadian husband sponsored wife’s admission into Canada — Before coming to Canada, wife had held several responsible posts in accounting and administrative fields but resisted husband’s urging to get even minimum-wage placement with local banks because of her alleged poor command of English — Court found no problem with her competence in English and attributed to her annual salary of $21,300 (what she could have grossed at minimum wage) — Husband was self-employed millwright whose prosperity depended on his ability to find seasonal work at various construction sites across Ontario — Current year was particularly difficult because of job losses and he found himself relying on employment insurance benefits — Court accepted $37,000 as reasonable figure for his current annual income — Under compensatory support model, wife had suffered some disadvantage from marriage for which she was entitled to compensation — She held good job that provided her with decent income by local standards, which she lost when she came to live with husband in Canada where she now survived on minimum wage and forced to develop her English language skills in hope of finding better jobs with meaningful career potential — Under needs-based support model, wife was also entitled to some amount of support, since gap between her imputed annual income of $21,300 and husband’s income of $37,000 was significant — Thus, court concluded that wife was entitled to support, albeit minimal, and only for short duration — In determining quantum and duration, court was not altogether pleased with results generated by Spousal Support Advisory Guidelines and chose high end of range for both quantum and duration, namely, $34 per month, for 16 months.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended]. Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 1(1),

section 30, subsection 33(8) and subsection 33(9). Family Law Rules, O. Reg. 114/99 [as amended], Form 14C. CASES CITED Achari v. Samy, 2000 BCSC 1211, 80 B.C.L.R. (3d) 378, 9 R.F.L. (5th) 247, [2000] B.C.J. No. 1651, 2000 Cars​well​BC 1676(B.C.S.C.). 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. Chartier v. Chartier, [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man.

R. (2d) 19, [1999] 4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th)540, 43 R.F.L. (4th) 1, , [1998] S.C.J. No. 79, 1999 Cars​well​Man 25. 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.). Hines v. Davy (1985), (ON SC), 45 R.F.L. (2d) 132, [1985] O.J. No. 894, 1985 Cars​well​Ont 253 (Ont. Dist. Ct.). M.(O.) v. M.(N.E.), 2003 BCPC 99, 27 Imm. L.R. (3d) 73, 40 R.F.L. (5th) 189, [2003] B.C.J. No. 774, 2003 Cars​well​BC 795 (B.C. Prov.Ct.). Moge v. Moge, [1992] 3 S.C.R. 813, 145 N.R. 1, 85 Man.

R. (2d) 161, [1993] 1 W.W.R. 481, 30 W.A.C. 161, 99 D.L.R. (4th) 456, 43R.F.L. (3d) 345, , [1992] S.C.J. No. 107, 1992 Cars​well​Man 143. Oxley v. Oxley, , 1 R.F.L. (6th) 354, [2003] O.J. No. 5275, [2003] O.T.C. 1117, 2003 Cars​well​Ont 5226 (Ont. S.C.). Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​well​Ont 7171 (Ont. S.C.). Segal v. Qu, , 17 R.F.L. (5th) 152, [2001] O.J. No. 2646, [2001] O.T.C. 500, 2001 Cars​well​Ont 2304 (Ont. S.C.). Spring v. Spring (1987), (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 Cars​well​Ont 1022 (Ont. U.F.C.). Volik v.

Lisovska, 2010 BCSC 22, [2011] B.C.J. No. 28, 2011 Cars​well​BC 12 (B.C.S.C.). Widdis v. Widdis, 2000 SKQB 441, 198 Sask. R. 15, [2000] S.J. No. 614, 2000 Cars​well​Sask 594 (Sask. Q.B.). AUTHORS AND WORKS CITED Rogerson, Carol J.: “The Child Support Obligation of Step-Parents” (2001), 18 Can. J. Fam. L. 9. Rogerson, Carol J. and D.A. Rollie Thompson: Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney Generalof Canada, July 2008). Natalia Denchik ............................................................................ counsel for the applicant mother Ryan G.

Gillissie .......................................................................... counsel for the respondent father JUSTICE R.J. SPENCE:— 1: NATURE OF CASE [1] Oxana Watts has commenced an application seeking spousal support and child support. The respondent, MalcolmWatts, seeks a dismissal of both claims, making no independent claim of his own. The child (“Lisa”) is Oxana’s daughter from a priorrelationship. Lisa is now 17 years old. [2] There are two issues in this case: 1. Is Oxana entitled to child support?

In order to establish entitlement, the specific issue to be addressed is whetherMalcolm demonstrated a settled intention to treat Lisa as a child of his family, given that he is not Lisa’s biologicalfather.[1] 2. In the circumstances of this case, is Oxana entitled to spousal support and, if so, the amount of that support.

2: BACKGROUND [ 3 ] The applicant, Oxana is 38 years old. The respondent, Malcolm is 40 years old. They were married in Russia on 18 October 2008. They had previously met on the internet, while Oxana was living in Russia, in or around February 2008. They developed an online relationship of sorts and, as a result, Malcolm invited Oxana to come to Canada for a visit. At the time, Malcolm was living in the small town of Mactier, Ontario. Oxana arrived for a three-week visit in May 2008. [2] This was their first in-person contact with one another.

The trip was by all accounts a success and, shortly after Oxana returned to Russia in June 2008, the parties began to discuss the possibility of marriage. [ 4 ] Malcolm was aware that Oxana had a teenage daughter from a prior relationship. In fact, before she met Malcolm, Oxana had lived in a common law marriage with a gentleman by the name of Suslov, in Russia, for approximately 10-plus years, from 1996 until January 2007. She had begun that relationship when Lisa was only 2½ years old.

Notwithstanding the length of that relationship, Oxana testified that Lisa remained in contact with, and maintained a relationship with her biological father. [ 5 ] During their extensive internet exchanges, [3] Oxana and Malcolm always communicated in English. It does not appear from the parties’ evidence that they had any difficulty understanding each other. And during their in-person visits, they spoke English as well. [ 6 ] Malcolm’s contact with Lisa was minimal. Part of the reason for this was Lisa’s shyness over her inability to speak English well.

Malcolm’s testimony was that his exchanges with Lisa consisted only of a word here, and a word there, no more than a sentence or two. This was the case while Oxana and Lisa were still in Russia, as well as afterwards when they came to Canada to live permanently with Malcolm. Oxana herself described Lisa’s communication with Malcolm as “awkward” — at least initially — because of Lisa’s lack of English language skills. [ 7 ] Shortly after Oxana’s return to Russia in June 2008, the parties finalized their plans to marry.

The wedding costs, including Russian government paperwork and medical exams for Oxana, were paid for by Malcolm. The parties decided to marry in Russia where Oxana’s family was residing. Malcolm arrived in Russia on 2 October 2008. The parties married on 18 October 2008. [ 8 ] Malcolm remained in Russia for about three weeks. During this visit, Oxana told Malcolm about Lisa’s desire to improve her English language skills. Malcolm offered to pay for Lisa’s English language courses in Russia, at a cost of about $100 per month.

And in fact, he did pay for those courses, for at least three months. [ 9 ] Following Malcolm’s return to Canada at the end of October, he began the sponsorship process to bring Oxana and Lisa to Canada. His motivation for bringing Lisa to Canada was his awareness that Lisa was part of a “package deal”. Oxana and Lisa arrived in Canada on 29 November 2008. [ 10 ] Over the next 16 months, until the parties eventually separated on 29 March 2010, their relationship can best be described as rocky.

Only three days after their arrival in Canada, Oxana accused Malcolm of having a “mistress”, and of maintaining contact with other women who she suspected were previous girlfriends. These allegations of inappropriate behaviour were steadfastly denied by Malcolm. However, in the face of what she believed to be unfaithful behaviour by Malcolm, Oxana testified that she nevertheless decided to remain with him because “I was ashamed to go back”. [ 11 ] After this, there were attempts at reconciliation. And the cycle would continue. In June 2009, Oxana sent Malcolm divorce papers.

Again, they reconciled for a short period. It appears that the two biggest areas of conflict for Oxana were Malcolm’s lack of money and her belief that he was being unfaithful to her. [ 12 ] In the last three weeks prior to the final separation in March 2010, the parties had very little interaction with each other. Although the evidence on this point was not entirely clear, it seems that Malcolm had obtained a job that took him out of town during the week, so that, from Monday to Friday, he was living away from home and out of contact with Oxana.

And on the weekends, Oxana would take the family car and leave home for the entire weekend.

Accordingly, their contact with one another was almost non-existent. [ 13 ] As a result of a domestic incident that occurred on 29 March 2010, the police became involved and the parties separated permanently. [ 14 ] Since about April 2010, Oxana has been living in a shelter in Toronto and taking some English courses, as well as vocational training courses to upgrade her skills. 3: CHILD SUPPORT [ 15 ] Subsection 1(1) of the Family Law Act (“Act”) defines parent as follows (my emphasis): “parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; [ 16 ] Accordingly, although Malcolm is not Lisa’s biological parent, if the evidences establishes on a balance of probabilities that he “demonstrated a settled intention” to treat Lisa as his child, then he would be prima facie obligated to pay child support. [ 17 ] Oxana argues that the evidence supports a finding of a settled intention.

The factors to which she points are:

1. Malcolm agreed to pay, and did pay for a few months, Lisa’s English language courses while Oxana and Lisa were still inRussia, before emigrating to Canada; 2. Malcolm introduced Lisa to Malcolm’s sister and brother-in-law as “our child”; 3. Malcolm assisted Oxana in picking out a school for Lisa in Ontario; 4. Malcolm provided food and shelter to Lisa during the time Malcolm and Oxana were cohabiting; and 5.

Malcolm signed a sponsorship agreement with Citizenship and Immigration Canada in which he agreed to provide for thetwo of them for a stated period of years. [18] As a result of the foregoing, Oxana argues that I should make the finding of settled intention and order child support inaccordance with the Child Support Guidelines, O.

Reg. 391/97, as amended, until Lisa reaches the age of 18 years, and beyond that if shecontinues on to post-secondary education. [19] I have concluded, on a balance of probabilities, that the evidence does not support the finding that Malcolm haddemonstrated a settled intention as defined in the Act. [20] The leading case on settled intention is Chartier v. Chartier, [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man. R. (2d) 19,[1999] 4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1, , [1998] S.C.J. No. 79, 1999 Cars​well​-Man 25.

At paragraph [39] of that case, the court set out the test, as follows: [39] Whether a person stands in the place of a parent must take into account all factors relevant tothat determination, viewed objectively. . . . The court must determine the nature of the relationship bylooking at a number of factors, among which is intention. Intention will not only be expressedformally. The court must also infer intention from actions, and take into consideration that evenexpressed intentions may sometimes change.

The actual fact of forming a new family is a key factor indrawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child ofthe marriage.

The relevant factors in defining the parental relationship include, but are not limited to,whether the child participates in the extended family in the same way as would a biological child;whether the person provides financially for the child (depending on ability to pay); whether theperson disciplines the child as a parent; whether the person represents to the child, the family, theworld, either explicitly or implicitly, that he or she is responsible as a parent to the child; the natureor existence of the child’s relationship with the absent biological parent. . . . [21] In Spring v.

Spring (1987), (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 Cars​well​Ont 1022(Ont. U.F.C.), the court had to decide whether the relationship between the husband and the stepdaughters constituted a settled intention. The court ultimately decided in favour of the wife’s position, namely that settled intention had been established.

The court did so,having regard to a number of factors including (at paragraph 20): 1. the parties had pooled their incomes into a joint account; 2. all expenses including those of the children were paid out of this account; 3. the children called the husband “daddy”; 4. the parties gave the children gifts and cards, in which they wrote “from mommy and daddy”; 5. the parties shared the task of disciplining the children; and 6. the father provided flowers for one of the children on her birthday, stating that it was the father’s duty to provide hisdaughter with her first flowers.

None of these are reflected in the facts of the case before me. [22] The case of Widdis v. Widdis, 2000 SKQB 441, 198 Sask. R. 15, [2000] S.J. No. 614, 2000 Cars​well​Sask 594 (Sask.Q.B.), contains excerpts from a paper by Professor Carol J. Rogerson, which examines the case law post-Chartier v. Chartier. The courtcited that paper with approval, beginning at paragraph [16].

I find it helpful to set out those excerpts as follows (my emphasis): [23] An affirmative finding attaches a financial obligation for support paid by the step-parent — an obligation that can represent significant quantities of money over many years andone which is ordinarily associated with having brought the child into the world or havinglegally adopted him or her. Financial responsibility to support other persons arises generally outof the formation of a dependency relationship.

It follows in my view that parental statusshould not be assigned automatically or from the mere willingness of the step-parent to sharewith children and to assist with their financial, emotional and physical needs. There must bea relatively clear assumption of responsibility shown by or inferred from the step-parent’sactions over a sufficient period of time for that relationship to constitute a commitment.

Onthe other hand, a child who has been made to be dependent upon a step-parent by actions of theadults in the definition of their relationship with each other and with the child should not bedeprived of that support in appropriate circumstances. . . .

[26] In marriages or relationships involving children of a previous relationship, the adultsand children will necessarily shown signs of family life together. There will be a division oflabour between the adults and, inevitably the step-parent will perform certain aspects of the rolepreviously performed by the natural parent. This should be encouraged. Re-marriage or otherforms of second families should be encouraged; it is good for children that their custodial parentfind happiness in a new relationship.

There must be a balance between addressing the needs ofchildren that arise out of legitimate dependency relationships with a step-parent and arequirement that the step-parent must behave in unnaturally cold or parsimonious ways towardthe children in order to avoid the inference being drawn.

In finding parental status, a courtmust take care not to penalize a step-parent for behaving kindly or offering emotional,physical and financial assistance to the natural parent who would otherwise be raising thechildren alone or with some assistance from the non-custodial natural parent. . . . [28] Should she or he be burdened with the obligation for long-term child support afterhaving so involved herself or himself in the children’s lives in pursuit of a new and happyrelationship? The answer will often be in the affirmative.

However, in my opinion, thethreshold for a parental status finding must be pegged at a sufficiently high point that itavoids the imposition of obligations and the acquisition of access and custody rights exceptwhere the step-parent can be clearly shown to have assumed the role of the natural parentand in substantial substitution for the natural parent’s role. Professor Rogerson goes on to say at p. 9-28: . . .

The list of factors in Chartier has become a standard reference point in the cases and hasarguably given new emphasis to certain factors — such as discipline and representations ofparental status to be community, but courts often continue to draw on many of the same factorsthey did in the past.

The check list includes whether the children call the step-parent Dad;whether there has been a change of surname; whether there has been discussion of adoption;whether the step-parent engages in activities with the children; the degree of affectionbetween the child and step-parent; whether the step-parent gives the child gifts; whether thestep-parent engages in decisions about education and attends parent-teacher meetings;whether he carries the children’s pictures in his wallet; and the degree of involvement of thenatural father.

Determinations of parental status remain highly discretionary and are ofteninfluenced by unarticulated policy choices that determine whether the court understands theChartier tests as establishing a relatively high or low threshold.

It is not clear whether courtsunderstand the test as requiring evidence of a serious commitment to the child beyond theordinary facts of residence together, or whether mere conformity to a picture of ordinaryfamily life in which a step-father appears to be acting like a father is sufficient. [17] She also identifies various factors which her review of the case law found can operate tomove a case outside of the standard step-parent circumstance, including,

(1) Poor relationship between the step-parent and the child prior to separation.

(2) An older child.

(3) An involved biological parent.

(4) Short length of relationship. [23] Referring to the above four factors, numbers 2, 3 and 4 weigh in favour of a finding of no settled intention in this case. As to factor number 1, the relationship between Malcolm and Lisa can more accurately characterized as cordial, or pleasant. [24] As to the “length of the relationship” referred to above, I refer first to Hines v. Davy (1985), (ON SC),45 R.F.L. (2d) 132, [1985] O.J. No. 894, 1985 Cars​well​Ont 253 (Ont. Dist. Ct.), where District Court Judge Edward O. Fanjoy stated,beginning at paragraph [15] (my emphasis): [15] The crucial word in my view is “settled”.

What is the meaning of “settled” in this context? The word has many meanings, the determination of which requires an examination of the context. Theverb “settle” is defined in the Concise Oxford Dictionary as “to establish or become established in moreor less permanent abode or place as way of life.” Webster’s New Twentieth Century Dictionary definesit “to make stable or permanent.” The adjective “settled” would have, in this context a meaning with aconnotation of permanency. [16] The length of the relationship would therefore be a factor in determining whether anintention is settled.

Indeed, in the reported cases which were cited this is recognized. In Bair the periodwas approximately 2½ years and the court found that there was no settled intention. . . . See also Oxley v. Oxley, , 1 R.F.L. (6th) 354, [2003] O.J. No. 5275, [2003] O.T.C. 1117, 2003 Cars​well​Ont 5226(Ont.

S.C.). [25] Although there are a great many cases that have dealt with the law of settled intention over the years, I consider theforegoing to be a reasonable synthesis of the modern-day law which may be helpfully examined in deciding whether or not to find theexistence of a settled intention. [26] Returning to the five factors on which Oxana relied in support of her claim for settled intention, the only two factors that Iconsider to be of any significance are the one-time reference by Malcolm to Lisa as “our child” and the signing of the sponsorshipagreement. [27] The “our child” reference was the one and only time that Malcolm ever said or did anything that could possibly imply thathe had a meaningful relationship with Lisa.

At the time that he said this, I infer from the evidence that things were going well between

himself and Oxana; and, it must be recalled, the introduction was made to Malcolm’s sister and brother-in-law, rather than to strangers orother community members at large. Malcolm obviously wanted to introduce Lisa in a positive way to his own family. However, thatwas the only time that anything like this occurred. That one-time introduction falls far short of holding out to the community thatMalcolm had formed a settled intention to treat Lisa as his child. [28] As for the sponsorship agreement, Malcolm had no choice but to sign this document if he wished to bring Oxana toCanada to live with him.

As he said, Lisa was part of that package. He could not bring one without bringing the other. The case law onsponsorship agreements is clear that the agreement, while a factor, is only one factor to consider in deciding the issue of support. [29] For example, in Achari v. Samy, 2000 BCSC 1211, 80 B.C.L.R. (3d) 378, 9 R.F.L. (5th) 247, [2000] B.C.J. No. 1651,2000 Cars​well​BC 1676 (B.C.S.C.), the court considered the legal implications of a sponsorship agreement in the context of a claim forspousal support. At paragraph [13], Justice Wallace T.

Oppal stated (my emphasis): [13] There is no doubt that the sponsorship agreement is a contractual arrangement between thehusband and the Government of Canada. It imposes an obligation on the husband to provide for andmaintain his wife for a maximum period of ten years. The husband has agreed by way of anundertaking to provide for the “essential needs . . . including shelter, food, clothing and other goods orservices necessary for day to day living” for his wife. I have no doubt that the wife relied on thatagreement in that she left Fiji for Canada knowing that her husband would provide for her.

Indetermining entitlement, the undertaking cannot be ignored. To do so would render it meaningless. Moreover it would be contrary to public policy to permit a person who has given an undertaking toprovide support for a spouse to simply ignore the legal obligation to do so. Obviously the Governmentof Canada in requiring such stringent undertakings from prospective sponsors has taken intoconsideration the inherent difficulties that some persons experience in making the necessary adjustmentsin coming to a new country and becoming self-sufficient.

It should also be noted that the agreementspecifically states that separation or divorce from a sponsored spouse does not cancel sponsorshipobligations. Therefore, the agreement is very much relevant in determining entitlement. However, theagreement that would otherwise bind the husband for ten years cannot supersede the specific lawsthat deal with maintenance. In other words, sponsorship agreements cannot impose obligationsgreater than those imposed by the family law.

The sponsorship agreement must be considered togetherwith the general principles applicable to spousal maintenance. . . . [30] Accordingly, while I consider the sponsorship agreement to be a factor, it is only one factor. And as one factor alone, itprovides little assistance in persuading me that Malcolm formed a settled intention to treat Lisa as his child. [31] As for the remaining three factors urged on me by Oxana, they are little more than a demonstration of what one wouldexpect from any person who has a new spouse, who herself has a child from a previous relationship.

Someone in Malcolm’s shoeswould want to demonstrate kindness, cordiality, financial support where it is not otherwise available from his new wife, respect andgenerally a positive interpersonal relationship. In circumstances such as these, where a new stepfather and a child are living togetherunder the same roof, there is a natural inclination to at least try to get along with one another. None of that, however, equates withdemonstrating a settled intention to treat the child as a child of that stepfather. See, for example, Segal v. Qu, , 17R.F.L. (5th) 152, [2001] O.J.

No. 2646, [2001] O.T.C. 500, 2001 Cars​well​Ont 2304 (Ont. S.C.). [32] In this case, the evidence overwhelmingly was that Malcolm and Lisa exchanged few words with each other during thetime they lived together. Lisa’s English language skills were poor and Malcolm did not speak Russian. She did not call him “daddy”; hedid not give her any gifts or cards signed “from daddy”; he did not participate in her discipline; he did not send her letters of affection; shedid not give him any birthday gifts or cards, or Father’s Day cards; and the period during which they lived together was very short.

Noris there evidence that, since Malcolm and Oxana separated on 29 March 2010, Lisa and Malcolm have exchanged even a single wordwith one another, much less spent time together. [33] And finally, by the time Lisa met Malcolm, she was 15 years old and she still had a biological father in the picture withwhom she had maintained at least some connection. In that regard, Oxana’s own evidence is telling, that even during her more than 10-year common law marriage to Suslov in Russia, Lisa considered only her biological father to be her father.

And, in the case before me,Oxana and Malcolm lived together for a mere 16 months. Further, unlike Suslov, Malcolm had virtually no ability to communicate withLisa in her native tongue. [34] I agree with the court in Widdis v.

Widdis, supra, and the paper by Professor Rogerson, that “the threshold for a parentalstatus finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access andcustody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantialsubstitution for the natural parent’s role”. [35] The consequence of not having a sufficiently high threshold is that stepparents may be held to long-term financialobligations for simply being a “nice person”, a friend to their new spouse’s child. [36] In all the circumstances of this case, I find that Malcolm did not demonstrate a settled intention to treat Lisa as a child ofhis family and, accordingly, I dismiss Oxana’s claim for child support. 4: SPOUSAL SUPPORT 4.1: The Law

[37]

Section 30 of the Family Law Act states: 30. Obligation of spouses for support.— Every spouse has an obligation to provide support forhimself or herself and for the other spouse, in accordance with need, to the extent that he or she iscapable of doing so. [38] There is a presumption that spouses owe one another a mutual duty of support: 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. Bracklow v.

Bracklow essentially deals with support on a needs basis. [39] In Moge v. Moge, [1992] 3 S.C.R. 813, 145 N.R. 1, 85 Man. R. (2d) 161, [1993] 1 W.W.R. 481, 30 W.A.C. 161, 99D.L.R. (4th) 456, 43 R.F.L. (3d) 345, , [1992] S.C.J. No. 107, 1992 Cars​well​Man 143, the Supreme Court of Canadaexamined support using the compensatory model. [40] I will return to the needs-based model and the compensatory model later in these reasons. [41] Subsection 33(8) of the Act sets out the purposes of an order for spousal support:

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

a) recognize the souse’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). And subsection 33(9) of the Act sets out the factors that the court is to take into account in assessing the amount of support to be paid:

(9) Determination of amount for support of spouses, parents.— In determining the amount and duration, if any, ofsupport for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (

a) the dependant’s and respondent’s current assets and means; (

b) the assets and means that the dependant and respondent are likely to have in the future; (

c) the dependant’s capacity to contribute to his or her own support; (

d) the respondent’s capacity to provide support; (

e) the dependant’s and respondent’s age and physical and mental health; (

f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard ofliving while the parties resided together; (

g) the measures available for the dependant to become able to provide for his or her own support and thelength of time and cost involved to enable the dependant to take those measures; (

h) any legal obligation of the respondent or dependant to provide support for another person; (

i) the desirability of the dependant or respondent remaining at home to care for a child; (

j) a contribution by the dependant to the realization of the respondent’s career potential; (k) [Repealed: S.O. 1997, c. 20, s. 3(3).] (

l) if the dependant is a spouse, (

i) the length oftime thedependant andrespondentcohabited, (ii) the effect onthe spouse’searningcapacity of theresponsibilitiesassumedduringcohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (

v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (v.1) [ Repealed : S.O. 2005, c. 5, s. 27(12) .] (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (

m) any other legal right of the dependant to support, other than out of public money. 4.2: Oxana’s Ability to Be Self-Supporting [ 42 ] Before Oxana left Russia to live with Malcolm in Canada, she gave up her job and vacated her flat in which, together with Lisa, she has an ownership interest. I infer from the evidence that she arrived in Canada with little or no money. In fact, it appears that, from the outset, Malcolm was paying for everything. He paid for the wedding, the paperwork in connection with obtaining a marriage

licence, Oxana’s first flight to Canada, a few months of Lisa’s English lessons in Russia, and Oxana and Lisa’s flights to Canada whenthey came to live. These collectively amounted to several thousands of dollars. In addition, while they were living in Canada withMalcolm, he paid for everything relating to their support and upkeep.

Oxana neither contributed anything financially toward her own orLisa’s support, nor did she make any effort to do so. [43] Oxana, who was 36 years old when she arrived in Canada to live with Malcolm, made no attempt to find employment,despite having 19 years of work experience in Russia. Malcolm’s evidence is that he encouraged her to get a job and, as a result of hisinquiries, he believed she could have obtained at least a minimum-wage job in one of the local banks in the town in which they lived.

Onthe other hand, Oxana felt she needed to improve her English language skills before she would be able to market herself successfully. Accordingly, she began taking courses shortly after she arrived in Canada, rather than looking for employment. [44] Oxana has a considerable history of work experience in Russia. As I noted above, her resume describes “over 19 years ofexperience”. From 1989 to 1995, she worked as an “accountant-cashier”. From 1995 she worked in a department store, also as acashier. From 1998 to 2001, she was the “office manager” for a business called “Ilva”.

From 2001 to 2002, she was a “Specialist ofFinancial Department” for Kom Alfa Trade. From 2004 to 2006, she was a State Tax Inspector for the Taxation Agency in a District inthe city of Novosibirsk. From 2006 to 2007, she worked as a “Specialist of Internal Control” for Sibirtelecom where, among otherthings, she conducted business, financial and economic audits of the company, prepared reports on possible risks associated withbusiness, financial and economic performance of the company, and conducted full economic analyses of financial and economicactivities of the company, including its departments and branches.

And, finally, from 2007 until she left Russia to live with Malcolm inCanada, she worked as a “Leading Specialist of Analytic Department” for Alians Region Leasing, where, among other things, sheparticipated in leasing projects and developed guidelines and policies for the department and prepared information and statistic materialsfor the department.[4] [45] From all of the evidence, it appears that Oxana was at all times fully employed while she was living in Russia. To hercredit, she was obviously an energetic and highly motivated person, who wanted to improve her lot in life.

By the time she left Russia in2008, she was making $850 per month which, although low by Canadian standards, she described as a “rather good salary” by Russianstandards. [46] In Russia, Oxana and Lisa jointly own 72% of the flat in which they were living. I heard conflicting evidence regardingthe value of the flat but, accepting Oxana’s best evidence, it is worth approximately $5,000.[5] Oxana has always indicated anunwillingness to sell her share or Lisa’s share of the flat.[6] [47] Oxana has been living in a shelter since about one month following the parties’ separation.

She testified that she willhave to leave the shelter in another month or so, as she is allowed to remain there for only one year.[7] [48] She filed a sworn financial statement just prior to the start of trial, in which she deposed that her income from all sourcesamounts to $29 per month. On cross-examination, it turned out that her income from all sources is considerably greater than that, in factcloser to $10,000 for the period from April 2010 to December 2010.

Some of these funds come from various government sources,including the child tax benefit credit and her shelter allowance. [49] Since separating from Malcolm, Oxana applied for and obtained a Visa credit card. She has also opened and maintaineda bank account. Her Visa statements reveal numerous purchases each month, and an ability to pay off the card balance regularly. Forexample, in January 2011, she made two substantial purchases on her card: an airline ticket for Lisa to return to Russia[8] in the amountof $1,072 and a television that she purchased from Future Shop in the amount of $1,500.

In that same month, she managed to makepayments to her Visa card totalling $3,310. [50] Oxana insists that her English language skills are not sufficient for her to obtain any kind of employment whatsoever, noteven a minimum wage job. There is more than ample evidence to suggest otherwise. Although she used the services of a Russiantranslator during the course of the trial, she was asked to read an e-mail she had written to Malcolm on 19 August 2008. Her e-mail waswritten in English. She read that e-mail out loud in court with ease, albeit with an obvious Russian accent.

Nonetheless, her Englishpronunciation was quite clear and understandable. [51] At all times when Malcolm and Oxana were communicating with each other by SMS, email and Skype, and during alltheir time together, they communicated solely in English. [52] On 24 June 2010, Oxana received a Certificate of Completion of English Language Instruction for Newcomers toCanada. This is provided by Citizenship and Immigration Canada.

Her achievement levels — out of a maximum possible score of 10 ineach category — were: Listening — 7; Speaking — 8; Reading — 8; and Writing — 7. [53] Oxana’s preferred area in which to obtain employment is in the field of accounting. To that end, on 3 February 2011, shebegan attending a course described as “Accpac for Windows 5.5”, at Skills for Change, in Toronto. The course is 10 weeks long andconcludes on 7 April 2011. There is no suggestion that her English language skills in any way impair her ability to take this computeraccounting course. [54] Returning to

section 30 of the Act, in determining the “extent” of Oxana’s ability to support herself, I conclude from theforegoing that Oxana has the ability to obtain some employment in Toronto, at least at the level of minimum wage. Minimum wage inOntario is $10.25 per hour, or $21,300 per year, based on a 40-hour work week. [55] The court may impute income to the parties, where appropriate, in determining the parties’ respective abilities to be self-supporting or to pay spousal support. See Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​-well​Ont 7171 (Ont. S.C.).

Based on the foregoing, in assessing the support issue, I impute income to Oxana in the amount of $21,300per year.

4.3: Malcolm’s Ability to Pay [ 56 ] Malcolm is 40 years old. He is a self-employed millwright. [9] He obtains work on construction sites when and where he is able. This often involves living away from his home for considerable periods of time. Essentially, he goes where the work takes him. In 2009, he was employed for most of the year and he earned $56,911. [ 57 ] In November 2009, while he was working in Sudbury, Ontario, he was laid off due to a lack of work. He managed to find some work in December 2009, working in different locations.

However, as a result of the domestic incident that occurred in March 2010, he once again lost his employment. Despite his efforts to find alternate employment, he was unsuccessful and was forced to rely on Employment Insurance benefits (“E.I.”), which continued until September 2010. In September, he found another job with a company called Patrick Mechanical. However, he was once again laid off on 1 February 2011. The reason for the lay-off was a “shortage of work”. [10] Once again, Malcolm is presently receiving E.I. benefits.

He anticipates that this will be his only source of income unless he is able to find full-time employment. His income from E.I. is $457 per week, prior to income tax deductions. [ 58 ] If Malcolm’s only source of income continued to be from E.I., that would pro-rate into an annual income of 52 x $457 = $23,764 per year. However, at the outset of trial, Malcolm’s counsel suggested that a more reasonable and realistic annual income for Malcolm for 2011, would be $37,000. In using that figure, the assumption is that, at least for part of the current year, Malcolm will be able to find some employment.

Of course, a far more negative scenario is always possible, namely, that Malcolm will not be able to find employment, that his E.I. benefits will run out, and he will be forced to subsist on the charity of friends, or on government social assistance benefits. But since Malcolm did not urge this pessimistic scenario on me, there is no need for me to consider it. [ 59 ] In her argument on behalf of Oxana, counsel argued that income should be imputed to Malcolm in the amount of $56- $57,000 per year.

I would have thought that an argument for imputation in that amount [11] would be based on evidence that Malcolm either had an undisclosed source of income other than a job, or E.I., or that he was intentionally underemployed. However, in her cross- examination of Malcolm, Oxana’s counsel did not challenge the evidence of Malcolm’s job losses, the seasonality of his work, and his need to become dependent on E.I. from time to time. Accordingly, it would be unfair, and contrary to the evidence, to impute income to Malcolm in the amount urged on me by Oxana’s counsel.

Instead, I look at the unchallenged evidence from Malcolm, and I accept $37,000 per year as a reasonable figure, in all the circumstances. [ 60 ] Before leaving this

section of my reasons, I note that Malcolm’s overall financial circumstances have deteriorated considerably since his involvement with Oxana began. His financial responsibilities for Oxana and Lisa, especially during periods when he was not earning employment income has resulted in an increase in his debt, as well as the loss of his house. He was eventually forced to sell his house as he could no longer pay the mortgage.

The house sale resulted in a shortfall between what he owed on the mortgage and the house sale proceeds; however, both the bank and the real estate agent agreed to compromise their respective financial positions, with the end result that Malcolm was able to walk away from the house sale without a debt owing to the bank. 4.4: Is Oxana Entitled to Support? [ 61 ] The short answer is yes, but only minimal support, and only for a short duration. [ 62 ] Under the Moge v. Moge model of compensatory support, Oxana has suffered some disadvantage flowing from the marriage, for which she is entitled to compensation.

She gave up her career in Russia to come to Canada for the purpose of living with Malcolm following their marriage. In Russia, she had achieved a level of job success that enabled her to earn a relatively decent income by Russian standards. On the other hand, here in Toronto, where she now lives, an imputed income of $21,300 per year, is very modest, in terms of one’s own ability to be fully self-supporting.

The biggest disadvantage that Oxana has suffered is the loss of her ability to be employed in her native language and the consequent need to continue to develop her English language skills in order to pursue better opportunities for jobs with meaningful career potential. [ 63 ] As well, under the Bracklow v. Bracklow model of needs-based support, I have concluded that Oxana is also entitled to some amount of support. There is a significant gap between her imputed income of $21,300 per year and Malcolm’s income of $37,000 per year. [ 64 ] And under subsection 33(8) of the Act , I consider clauses (

c) and (

d) to be relevant purposes for support in the circumstances of this case. I conclude that clauses (

a) and (

d) do not apply. 4.5: Quantum and Duration of Support [ 65 ] I return to subsection 33(9) of the Act , which sets out the factors that the court must consider in determining the amount and duration of support. Of those, I consider clauses ( a ), ( c ), ( d ), ( e ), ( f ), (

g) and ( l )(

i) to be the most relevant. • clause ( a ) — the parties’ assets and means. I have previously reviewed the evidence in this regard, and there is no need to do so again. • clause ( c ) — Oxana’s capacity to contribute to her own support. Again, I have previously reviewed the evidence in this regard. • clause ( d ) — Malcolm’s capacity to provide support. I have reviewed the evidence and have made specific findings in this regard. • clause ( e ) — age, physical and mental health.

There was no evidence that either party was under any sort of physical or mental disability. • clause ( f ) — needs and standard of living. The parties lived modestly prior to separation and, since separation, the overall “pie” has declined considerably — subject to the income that I have imputed to Oxana.

• clause ( g ) — Oxana’s ability to become self-supporting. As I have concluded, Oxana has the immediate ability to obtain a job, at least at minimum wage, should she choose to do so. However, she will likely require some additional period of time to expand her job opportunities. • subclause ( l )(i) — duration of cohabitation. As previously discussed, at 16 months, this was a marriage [12] of very short duration. [ 66 ] In addition to the criteria set out in subsection 33(9) of the Act , the Ontario 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.), court considered the applicability of the Spousal Support Advisory Guidelines , (Ottawa: Minister of Justice and Attorney General of Canada, July 2008) (“Guidelines”), in determining the quantum and duration of support.

The court recognized that, although the Guidelines are not binding on courts, they are nonetheless a “useful tool” [13] — a yardstick, if you will, by which the courts can measure the results that would otherwise obtain by an examination of the statutory criteria.

The court also said that, when Guideline calculations are raised at trial, and if the trial judge decides to make an award outside the Guidelines, the court has an obligation to give “reasons explaining why the Guidelines do not provide an appropriate result”. [14] [ 67 ] In this case, I was provided with a number of different Guideline calculations by both counsel.

However, I found none of those calculations to reflect my findings in this case, namely: • the parties lived together for 1.3 years (from the end of November 2008 to the end of March 2010); • Malcolm’s annual income is $37,000; and • Oxana’s annual income is $21,300. [ 68 ] Accordingly, I ran my own Guideline calculations inputting those numbers.

What the result reveals is this: • monthly support at the Low range is $26, Mid range is $30, and High range is $34; and • the duration for support payments is 0.65 to 1.3 years [ 69 ] These results might appear at first blush to reflect a very low amount of support, and for a very short duration. However, it must be remembered that the Guideline calculation takes into account the very short duration of the marriage itself, as well as Malcolm’s relatively modest financial circumstances.

The short duration of the marriage, which is built into the Guideline calculation, is consistent with the case law, which holds that marriages of short duration can have a substantial impact on the period of time for which support may be ordered. See, for example, O.M. v. N.E.M. , 2003 BCPC 99 , 27 Imm. L.R. (3d) 73, 40 R.F.L. (5th) 189, [2003] B.C.J. No. 774, 2003 Cars​well​BC 795 (B.C. Prov. Ct.); and Volik v. Lisovska , 2010 BCSC 22 , [2011] B.C.J.

No. 28, 2011 Cars​well​BC 12 (B.C.S.C.). [ 70 ] Notwithstanding the almost nominal amount of support — even at the high end — I am unable to find any reason “to explain why the Guidelines do not provide an appropriate result”. [15] On that basis, I would award support to Oxana, payable by Malcolm, at the high end of both quantum and duration, namely, $34 per month, for 16 months, beginning on 1 April 2011. [ 71 ] Oxana had argued that, for purposes of calculating support, I should deem her income to be $nil. Obviously, I have not done so.

However, if I am found to be wrong in deciding to impute income to Oxana in the amount of $21,300 per year, and if indeed her income is found to be $nil, the Guidelines on that basis would produce the following results: • monthly support at the Low range is $60 , Mid range is $70, and High range is $80; and • the duration for support payments is 0.65 to 1.3 years. [ 72 ] Once again, as I would see no principled reason for deviating from the Guidelines, I would have awarded support to Oxana in the maximum amount and for the maximum duration, namely, $80 per month, for a period of 16 months.

My decision to make an award at the high end of both scales recognizes that the numbers themselves are very modest, in absolute terms. 5: CONCLUSION [ 73 ] The order of the court is: 1. There will be no child support payable by Malcolm to Oxana for the benefit of Lisa; and 2.

Commencing on 1 April 2011, Malcolm shall pay to Oxana $34 per month for spousal support, such support to continue for 16 months, until the final payment is made on 1 July 2012. [ 74 ] Should either party wish to address the issue of costs, he or she shall give notice to the other side, including any bill of costs upon which that party intends to rely. The parties may then contact the trial scheduling office to arrange a 2:00 p.m. appointment to make oral submissions. That appointment shall be confirmed by Form 14C in the usual form, according to the Family Law Rules , O. Reg. 114/99, as amended.