Graves v. Defelice, 2015 ONCJ 162

COURT FILE NO. D71489/14 DATE : March 24, 2015 Citation: Graves v.

Defelice , 2015 ONCJ 162 ONTARIO COURT OF JUSTICE RE: Erica Graves – Applicant Dale Defelice– Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Susan Harris - for the Applicant Erica Jacobs - for the Respondent HEARD ON: March 18, 2015 DECISION ON TEMPORARY MOTION Introduction [ 1 ] This is a motion by the Applicant (“mother”) for temporary child support for Miles Defelice born February 27, 2012 (“the child” or “Miles”) retroactive to May 1, 2014 and for temporary spousal support retroactive to May 1, 2014 based on the Respondent’s (“father”) income of $139,628.

The mother seeks child support of $1,186 per month and spousal support of $3,571 per month. [ 2 ] The father in his responding materials stated that he did not believe the mother was entitled to spousal support but at the commencement of submissions on behalf of the father, counsel indicated that entitlement was conceded and the issue was only quantum of spousal support.

Counsel for the father submitted that spousal support continue to be paid at the rate of $1,500 per month in accordance with the temporary without prejudice order of January 19, 2015. [ 3 ] Following submissions as it appeared there was an agreement on child support, the matter was held down and both counsel then advised that they had agreed that child support should be payable as of March 1, 2014 based on the father’s 2013 income of $90,373.01 in the amount of $804 per month and as of March 1, 2015 based on his 2014 income of $139,695.90 in the amount of $1,186 per month.

Background [ 4 ] The parties met in 2007. The mother states they began to live together in 2008 whereas the father states they began to live together in 2010 when they purchased a condominium together. The parties both agree that they separated about the end of 2012 but continued to reside together in the family residence until the father left in March 2013. [ 5 ] The parties are the biological parents of Miles.

Miles has remained in the primary care of the mother since the separation. [ 6 ] The parties settled their property issues between themselves with the mother purchasing the father’s interest in the family residence for $20,000 which he maintains was less than the money he had invested into the property. The mother subsequently sold the family residence and made a profit of $100,000. [ 7 ] The parties made informal arrangements on child and spousal support and the father paid until April 2014 when the father discontinued paying spousal support.

The mother then began this application in August 2014. [ 8 ] The parties agreed that the father would pay support in 2013 based on his 2012 income. The mother agrees that the father paid

$17,052.90 in total support from March 2013 to December 2013 but this was a global amount without any formal demarcation between child and spousal support. Based on the father’s 2012 income of $80,649 this would require child support of $729 per month. In January 2014, they agreed the father would pay $724 per month for child support and $922.67 for spousal support for a total support payment of $1,646.47 or $380 weekly. The mother deposes that on May 21, 2014 the father changed the amount to $400 for a few weeks and then the payments ceased to be regular in April 2014 until the case conference in November.

Between April and November 2014 the mother only received about $800 per month. [ 9 ] The father deposes that he ceased paying spousal support as of April 1, 2014 as he only intended spousal support to be temporary. History of Litigation [ 10 ] At the case conference held on November 14, 2014 the parties agreed to a temporary without prejudice order that the father pay child support of $841 per month and spousal support of $250 per week. A date was set for a temporary motion regarding support to be heard on December 30, 2014.

The motion did not proceed on that date as there was a death in the father’s family. [ 11 ] Counsel submitted a Form 14B consent and a temporary order was made on January 19, 2015 that the father pay child support of $962 per month and spousal support of $1,500 per month as of January 1, 2015 until the return of the motion. [ 12 ] The temporary was heard on March 18, 2015. Applicant’s employment and financial circumstances [ 13 ] The mother is 37 years old and has a high school education.

After graduation she worked at several low paying jobs in the food service and hospitality industry and never earned more than $20,000. In May 2011 she obtained a job in administration and finance at an annual salary of $52,000. The mother worked from May 2011 to February 2012 and then took maternity leave. [ 14 ] The mother returned to work in March 2013 on a part-time basis and worked about 15 hours per week but she found even part- timework not manageable due to Mile’s young age.

The mother has not been employed since October 2013. [ 15 ] The mother deposed that Miles attends Montessori school from 9:00 a.m. to 12:00 p.m. and she has not seen any job postings that would accommodate this schedule. The mother is currently looking into law clerk courses but anticipates that she will not be able to obtain any meaningful employment until Miles commences school. [ 16 ] The mother’s employment income is as follows: Year Income 2010 $13,340 2011 $37,037 2012 $35,926 2013 $5,838 [ 17 ] The mother’s financial statement indicates total expenses of $5,802.83 per month (excluding her legal fees).

Her only income is the child tax benefit and the support she is receiving. She has met the shortfall by depleting funds she received from the sale of a property and she has received financial assistance from her family. [ 18 ] The mother deposed that even to meet her basic needs of housing, food, transportation costs, medical and dental expenses and minimal clothing for herself and Miles results in expenses of $3,129 per month. The mother has other expenses that have not been included in her budget.

For example, the mother enrolled Miles in a half day Montessori nursery program as his speech was significantly delayed and to improve his socialization skills with other children. The mother deposed that she intends to continue Miles’ attendance at Montessori, even though it does not qualify as a

section 7 expense as she is not working, because she has noticed a significant improvement in his speech and behaviour since he began attending the program. She also has expenses for a few extracurricular activities. [ 19 ] The mother’s assets consist of her home, car and savings of about $20,330. Her assets total $605,787 and she has debts of $172,935. Respondent’s employment and financial circumstances [ 20 ] The father is 28 years old. He has been an iron worker and a member of the Ironworkers union since 2006.

He deposed that he usually earns about $77,000 per year if he works for the majority of the year but workers in Ontario typically are laid off for two to six months.

In accordance with the union rules, he is not permitted to work as an ironworker independently but can respond to open calls in other provinces which occurs when unions in other provinces do not have enough trades people to do the job. [ 21 ] The father deposed that when the parties separated, due to his expenses and the money he gave the mother for support, he answered an open call in September 2013 and he has been working in Saskatchewan since October 2013. The father deposed that the only other open call he ever responded to was in 2011 in Vancouver because he owed the mother $30,000.

He further deposed that he expects to be laid off soon as the job he is currently working on is near completion. At his current job he is paid $40.26 per hour at a shift of 14 days on site and 7 days off. In addition to his regular pay he is paid for overtime and vacations and is eligible to receive various bonuses. He receives a tax free room and board allowance of $30,612 and $12,000 for travel expenses. [ 22 ] The father’s income less his union fees is as follows:

Year Income 2010 $61,688 2011 $126,122 (worked in Vancouver) 2012 $76,691 2013 $90,373 (worked in Saskatoon) 2014 $139,695 (worked in Saskatoon) [ 23 ] The father’s financial statement indicates he has a monthly income of $12,500 per month and expenses of $12,713.15 per month (excluding his legal fees). His only assets total $22,186 and consist of 2 old cars and a recently purchased motor cycle and minimal savings. He lists debts of $70,839 that consist of a loan from his father of $14,500 and consumer loans. His net worth is minus $48,652.

Counsel for the mother raised several issues with respect to the father’s financial statement based on the lack of full disclosure. Applicable legal principles and statutory provisions regarding spousal support [ 24 ]

Section 30 of the Family Law Act (“ FLA ”) provides that every spouse has an obligation to provide support for the other spouse “in accordance with need, to the extent that he or she is capable of doing so.” [ 25 ] In considering if the Applicant is entitled to spousal support, whether on a temporary or final basis, the court is required to consider the objectives of a spousal support order set out in subsection 33(8) of FLA as follows:

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

a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship 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) and II (Matrimonial home) [ 26 ] In Bracklow v.Bracklow, [1] the Supreme Court 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. [ 27 ] Where there are dependent children, the primary rationale for spousal support is compensatory.

As stated by Chief Justice McLaughlin in Bracklow , spouses “must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union”. [2] [ 28 ] As the authors of SAAG emphasize, in cases where there are dependent children, the obligation for spousal support flows from parenthood rather than the marital relationship. It is not driven by the length of the marriage, marital interdependency, and merger of the parties' economic lives over time, but the need to provide care and support of children.

The authors highlight that what they refer to as the "parental partnership" rationale for spousal support considers not only past loss, but also the potential for ongoing financial disadvantage arising as a result of current and future child care responsibilities. They further point out that for shorter marriages with young children these present and future child care responsibilities are more significant. [3] Application of legal principles regarding entitlement of spousal support [ 29 ] In this case, the mother obtained her first job where she could earn a significant income just before she became pregnant.

But after Miles was born, she attempted to return to work and even on a part time basis could not meet Miles’ needs and continue working. Her responsibility to care for Miles has resulted in a direct loss of her present ability to support herself and this will continue for the foreseeable future. [ 30 ] Based on the mother’s financial needs she has an immediate need for spousal support.

Although the mother’s net worth is significantly higher than the father’s, her assets consist of a modest home and a new car that she purchased so she would have a reliable car to transport Miles. [ 31 ] The mother therefore is entitled to spousal support both on a compensatory and needs basis. Legal principles regarding temporary spousal support [ 32 ] As this is a motion for temporary spousal support, the relevant applicable principles [4] to be applied are as follows :

a) temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out.;

b) on a temporary support motions, needs of the dependent spouse and the ability of the other spouse to pay support take on greater

significance than the need to achieve self-sufficiency;

c) the court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered an economic advantage or disadvantage as a result of the relationship. That is to be left for the trial judge;

d) temporary 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;

e) temporary support is to be based on the parties’ means and needs, assuming that a triable issue exists. The merits of the case in its entirely must wait a final hearing; and

f) temporary support should be ordered within the Spousal Support Advisory Guidelines (“SSAG”) range unless exceptional circumstances dictate otherwise. Amount of temporary spousal support [ 33 ] The father deposed that the mother has had a sufficient amount of time to begin to contribute to her own support. He also deposed that the support he has already paid and the equity he sacrificed from the family residence has alleviated any economic hardship she could have suffered as a result of the break-down of their relationship. He further deposed that the mother’s employer was prepared to accommodate the mother’s

schedule after Miles was born but that the mother refused to work full-time and although she was offered part-time employment after a short time she stopped working at all. [ 34 ] The issues raised by the father are more properly dealt with by the trial judge where a more thorough analysis of the economic disadvantages suffered by the mother and the mother’s obligation to become self-sufficient can be examined. [ 35 ] At this temporary stage of the proceedings, the focus is on the means and needs of the parties. The mother has an obvious need for spousal support.

She is presently not working and is the primary caregiver for a young child. [ 36 ] The father submits that if spousal support is ordered it should not be based on his 2014 income as that was an unusual year and he does not expect to earn that much income ever again. He submits that he cannot afford to pay more than the current spousal support order of $1,500 per month. [ 37 ] The mother submits that support should be based on the actual income of the father. [ 38 ] Father’s counsel submits that the father’s post-separation increase in income should not be considered in the calculation of spousal support.

I agree that there is no automatic entitlement to spousal support based on the post-separation increase in income of the payor. The issue of the sharing of any post-sharing of income is a complex and fact driven decision that should be left to the trial judge. [ 39 ] On temporary motions, there is a need for a quick and easily calculated amount of spousal support. The SSAG are particularly useful at this initial stage knowing that precise calculations can be made later. [ 40 ] The starting point for the determination of income under the SSAG is the definition of income under the Federal Child Support Guidelines .

Section 16 sets out that income is determined using the source of income set out under the heading “total income” in the T 1 issued by Canada Revenue Agency subject to sections 17 to 20 and adjusted in accordance with

Schedule III. [ 41 ] The parties have agreed for child support purposes that the father’s income for 2013 was $ 90,373.01 and for 2014 $139,694.90. Further prior to the commencement of these proceedings the parties agreed that they would calculate support for the current year based on the father’s previous year’s income due to the fluctuations in his income based on discretionary bonuses and overtime. [ 42 ] There are practical difficulties in using different incomes for child support and spousal support.

Therefore, the authors of the SSAG suggest that in the interests of simplicity and consistency that the same income be used and that some adjustments can be made through selecting a particular amount in the ranges. Therefore it is suggested that the relevant time for determination of the incomes of the spouses is the date of the hearing at both the interim and initial stages. [5] [ 43 ] As the parties agreed to use the father’s 2013 income for child support for 2014 and his 2014 income for child support for 2015, it is logical at this stage to use the same incomes to calculate spousal support.

However, as can be seen by the calculations for 2014 based on the father’s 2013 income and the mother’s 2013 income I find that the amount of spousal support for 2014 would not meet the mother’s expenses for that year.

However, as this order will be subject to re-adjustment, I am not prepared at this stage to interfere with counsel’s consent to the method of calculating support. [ 44 ] Based on the 2013 income of the father of $90,373 and the mother’s income of $5,838 using the Divorcemate calculations, the range of spousal support is $1,437 to $1,997 with $1,705 being the mid-range. [6] [ 45 ] Based on the 2014 income of the father of $139,695 and the mother having no income using the Divorcemate calculations, the range of support is $3,138 to $3,984 with $3,571 being the mid-range. [ 46 ] Subject to my concerns about the method of calculating support using the previous year’s income, there are no unusual facts that would warrant the low or high range of support, the mid-range of support is appropriate. [ 47 ] The father submitted that if there were any arrears of support owing that it not be enforced until after he received his income tax refund.

I find that this is a reasonable request. Retroactive spousal support [ 48 ] The mother seeks spousal support retroactive to April 2014 when the father stopped paying support. She is entitled to support

retrospective to the date of the application which she commenced in August 2014. [ 49 ] The court has jurisdiction to make a retroactive order for spousal support pursuant to section 34 (1) (

f) of the FLA . In S pett v.

Pearo [7] Justice Riccheti reviewed the case law and held that generally temporary retroactive spousal support orders are made where: sets out the factors that should be considered in making a temporary retroactive order as follows: i. there appears to be a prima facie entitlement by the recipient spouse to spousal support during the period in question; ii. during this period the payor spouse has made little or no spousal support or other reasonable financial contribution to the recipient's expenses (such as mortgage, food etc.); iii. there is some immediate need on behalf of the recipient spouse to deal with debts or other financial issues which have occurred during this period of time failing which the recipient spouse will suffer some hardship, and iv. the payor spouse has the ability to make a payment for some retroactive spousal support through the payor's funds or borrowings available to the payor spouse without causing undue hardship. [ 50 ] I am not satisfied that there is an immediate need for a temporary retroactive spousal support order.

As a result of this decision the father will have arrears from August 2014 to the date of this order and he has little savings and his ability to borrow funds is unknown. The spousal support the father did pay was not tax deductible and there may be an issue of overpayment or underpayment both with respect to spousal and child support. Further the calculations for spousal support are based on a four year relationship and if the father is successful in proving that it was only a two year relationship the amount of spousal support will have to be re-adjusted accordingly.

Order [ 51 ] I make the following temporary order: 1. On consent, the Respondent shall pay child support to the Applicant for Miles Defelice born February 27, 2010 born as follows:

a) Based on his 2013 income of $ 90,373.01 the amount of $804.00 per month from March 1, 2014 up to and including February 1, 2015 with credit for any amount already paid.

b) Based on his 2014 income of $139,695.90 the amount of $1,186.00 per month from March 1, 2015 and to continue until further order of the court with credit for any amounts already paid. 2. The Respondent shall pay to the Applicant spousal support, without prejudice to the Applicant’s claim for retroactive spousal support and without prejudice to the Respondent’s claim for either no spousal support or a lower amount of support, as follows:

a) From August 1, 2014 up to and including December 2014, the amount of $1,705.00 per month with credit for any amount already paid;

b) From January 1, 2015 the amount of $3,571.00 per month and to continue until further order of the court with credit for any amounts already paid. 3. Support Deduction order to issue. Any arrears pursuant to this order shall not be enforced by the Family Responsibility Office until July 1, 2015. [ 52 ] If counsel cannot settle the issue of costs, the Applicant’s counsel shall serve and file a brief outline of her costs submissions, not to exceed 3 pages, with her Bill of Costs and any Offers to Settle being attached within 14 days.

The Respondent’s counsel shall 14 days thereafter serve and file her brief responding submissions, not to exceed 3 pages, with any Offer to Settle and if desired her own Bill of

Costs. ___________________________ Justice Roselyn Zisman DATE: March 24, 2015