De Almeida v. De Abreu, 2017 ONCJ 605

ONTARIO COURT OF JUSTICE CITATION: De Almeida v. De Abreu , 2017 ONCJ 605 DATE: September 6, 2017 COURT FILE No.: Toronto DFO 17 15265 BETWEEN: DE ALMEIDA Alda Maria Dias Applicant — AND — DE ABREU, Oscar M. Barradas Respondent Before Justice E. B. Murray Heard on August 24, 2017 Reasons for Judgment released on September 6, 2017 Darlene Rites................................................................................... counsel for the applicant Oscar M. Barradas De Abreu ................................................................... on his own behalf MURRAY, E. B.

J.: [ 1 ] Alda Maria De Almeida and Oscar De Abreu were married on September 2, 2002. They have one child, “Mark” [1] , born January 15, 2005. They separated in January 2015 after Oscar was charged with assaulting Maria; Mark remained with Maria. The charge was resolved by a peace bond, and the parties reconciled. They finally separated on April 5, 2016 when Oscar left the matrimonial home after being charged with breaching the peace bond. The charge was later withdrawn. Mark remained living with Maria. [ 2 ] This is my decision on Maria’s application for child and spousal support.

The issues are: • What are the parties’ incomes for support purposes? • Is Maria entitled to spousal support? If she is entitled, what is the proper amount of support? [ 3 ] Maria was represented by a lawyer on the hearing of the application. Oscar received legal assistance in the drafting of his documents, but was self-represented at the hearing. Background [ 4 ] The marriage of Oscar and Maria was a traditional marriage until 2015. Oscar, who works as a roofer, was the family

breadwinner. He often worked long hours. Maria was the homemaker and primary caregiver for Mark. Maria is now 44 years of age, and Oscar is 39 years of age. [ 5 ] Oscar has not paid child or spousal support or contributed to the costs of the parties’ jointly owned home since the separation in April, 2016. Maria alleges that he stopped contributing to the costs of the home even before the separation. For this reason, in 2015 Maria began working full-time as a cleaner. In February 2016 she took on a second part-time cleaning position.

She has maintained both positions since separation in order to support herself and Mark. [ 6 ] Maria works at one job from 6:30 a.m. to 3 p.m. and at another job from 5:30 p.m. to 10:30 p.m. The cost of mortgage, tax, insurance and utilities is approximately $1,400 monthly [2] and is paid by Maria. In 2016 Maria’s income was approximately $43,000. [ 7 ] Maria would like to work only one job, to spend appropriate time with Mark. She would also like to be able to afford to enroll the child in swimming lessons (cost $312/year) and karate (cost $100 monthly). [ 8 ] Oscar continues to work long hours.

He sees Mark only occasionally. His income for the past four years is as follows: • 2014 $66,179 • 2015 $100,324 • 2016 $57,506 • 2017 $64,706 [3] The parties’ positions [ 9 ] The parties disagree on their respective incomes for support purposes. • Maria says Oscar’s income should be the average of his last 3 years’ earnings, $74,178. Oscar says that this method provides an unfair estimate of future earnings, because 2015, in which he earned over $100,000, was an anomalous year; he has never earned that much in other years.

Oscar says his income should be based on his current earnings, which annualized are $64,706. • Oscar says that Maria’s income should be based on her most recent earnings of $43,000. Maria says that she only works two jobs because Oscar has paid no support, and that in the future her income should be based on what she earns from the one job she intends to keep, which paid $25,688 last year. [ 10 ] Oscar says that if his income is $64,706 and Maria’s is $43,000, that after payment of child support of $591 monthly, Maria should receive no spousal support because she will have no need.

Maria says that, given the figures she says are appropriate for the court to use in determining support, she is entitled to spousal support on a compensatory and needs-based basis, and that she should receive spousal support in the upper range of the Spousal Support Advisory Guidelines (SSAG). Analysis Income [ 11 ] Courts have accepted that the principles used to determine income under the Child Support Guidelines should also be used when spousal support is at issue [4] . [ 12 ]

Section 15 of the Guidelines provides that a spouse’s income shall be determined in accordance with sections 16-20. S. 16 provides that subject to certain exceptions as set out in

Schedule III, income should be determined with reference the sources of income show on a spouse’s tax return. This is often established by reference to line 150 of the prior year’s tax return [5] . However, the objective of the Guidelines is to determine current income, so if reliable information with respect to the current year is available, that information will be the basis for a support order [6] . [ 13 ] Although s. 17 of the Guidelines gives the court discretion to consider a spouse’s income over the past three taxation years, there is no requirement to do so by averaging or otherwise [7] .

The court may have resort to this method when s. 16 does not provide the fairest determination of a spouse’s income. In the instant case, reference to Oscar’s income for the past three years, including his 2015 income of over $100,000, would not in my view be a reliable guide to his future income. His 2015 income was more than 50% in excess of his income for any other year. There is no evidence suggesting that it will be repeated.

If it is, then it would constitute a material change in circumstance justifying a variation. [ 14 ] Turning to an assessment of Maria’s Guideline income, I find that she is justified in the decision to give up her second, part time job in order to spend sufficient time with Mark. Other courts have found that a parent who is employed full-time and gives up secondary employment in order to spend time with his child is justified in doing so, and is not under-employed. [8] Maria’s income from her full- time employment is $25,688. Child support

[15] The table amount of support payable by Oscar based on an income of $64,706 is $591 monthly. I order that this be paidcommencing January 1, 2017, the month in which Maria began her application. [16] Maria also seeks child support retroactive to the date of separation, commencing May 1, 2016. Applying the principles set outin S. (D.B.) v.

G. (S.R.), (2006) 2006 SCC 37 , 2 S.C.R. 231, I have no difficulty in finding that retroactive support is in order. • The delay in commencing the application was not long. • Oscar paid nothing towards Mark’s support despite having an income in 2016 of $57,506; Oscar privileged his own interests,without regard to Mark. • I have no evidence that Mark suffered materially because no support was paid, but this is only because Maria worked two jobs. • The order which I make will result in automatic arrears of over $4,000 (more when support owing from January 2017 is taken intoaccount).

Any hardship resulting from this order is of Oscar’s own making, but in any event, will be mitigated by the payment planwhich I will impose. [17] My order is that Oscar pay child support of $522 monthly based on his 2016 income of $57,506 from May 1, 2016 up to andincluding December 1, 2016. The arrears resulting from my order will be paid at a rate of $100 monthly commencing September 1,2017; additional amounts may be retrieved from Federal garnishments.

Spousal support [18] Section 33(1) of the Family Law Act provides that a court may order a person to provide support for his or her dependents,including a spouse. The purposes of an order for spousal support are set out in section 33(8):

(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). [19] Section 33(9) sets out the factors to be considered in determining the amount and duration of spousal support: In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all thecircumstances 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 of living while theparties resided together; (

g) the measures available for the dependant to become able to provide for his or her own support and the length of time andcost 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; (

l) if the dependant is a spouse, (

i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable byreason 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, (vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and [ 20 ] Maria is entitled to support based on need, as well as on a compensatory basis. The breakdown of the marriage has meant economic hardship for her and Mark.

Her financial statement demonstrates that, even working two jobs, she is incurring debt of about $1,000 monthly in order to meet expenses. Until 2015, Maria was not in the paid work force because of the traditional role she assumed during the marriage. This allowed Oscar to work long hours and maintain well-paid employment in construction. This prevented Maria from accumulating any seniority or experience in the work force that might benefit her now.

Given her lack of education, lack of experience, and her age (44), it is not likely that she will be able to earn much more than minimum wage. [ 21 ] To determine the appropriate amount of spousal support, I turn to the Spousal Support Advisory Guidelines. The Ontario Court of Appeal has held that although the Spousal Support Advisory Guidelines are not legislation and are not binding upon a court, that they are a useful tool in determining quantum and duration of spousal support [9] .

It can be an error of law to fail to consider the SSAG. [ 22 ] SSAG calculations in this case dealing with the range of spousal support payable based on Oscar’s income of $64,706 and Maria’s projected income of $25,688 using the “with child support” formula indicate a range of support payable: • “0” for low; • $158 monthly for “mid-range”; • $405 monthly for high.

These amounts would be payable for an indefinite (unspecified) duration, with a mini​mum duration of 7 years and a maximum of 14 years form the date of separation. [ 23 ] The SSAG sets out factors to be considered in determining range: strength of any compensatory claim recipient’s needs age, number, needs and standard of living of children (if any) needs and ability to pay of payor work incentives for payor property division and debts self-sufficiency incentives [ 24 ] Relatively little has been written about the factors which are relevant in determining the proper amount of spousal support for cases such as this, where the length of marriage is intermediate and the payor’s income is not low but modest. [ 25 ] In the Revised User’s Guide to the SSAG published in April 2016, the authors observed as follows: There has been a distinct tendency in the case law to “default” to the mid-range for amount, an approach which should be avoided, in our view.

On duration, we see much less of a tendency to default to the middle of the range, and more explanation for the outcome. The mid-point of the SSAG ranges for amount should NOT be treated as the default outcome. It is not the “norm”, with the upper and lower ends of the range reserved for exceptional cases. Too often judges treat the mid-point as such, especially under the with child support formula. Our review of SSAG cases has revealed that in 60 per cent of all the reported with child support cases spousal support is ordered at the mid-point.

A mid-point outcome is typically treated as if it does not require any explanation, with outcomes above or below being more likely to result in reasons. For a few decisions that carefully explain a mid-range outcome, see Reid v. Carnduff , 2014 ONSC 605 and Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 ; If anything, the with child support cases should more often resolve in the upper half of the range , as the formula already adjusts for “average” ability to pay.

Most of these cases are strongly compensatory and there is great “need” in the home of the primary career for the children, which should push amounts higher in the range. [ 26 ] In my view, the proper amount of spousal support in this case is at the high end of the range. I note the following. • Maria’s claim is needs-based as well as having some compensatory value. • There is no need to order support in a lower amount in order to give Maria “incentive” to work. An award at the upper end of the range will still require Maria to reduce spending considerably as she is giving up her second job.

• Although it will require economies from Oscar, Oscar has the ability to pay spousal support in this range. An award in the upper range will give Maria and Mark 52.4% of the net disposable household income, and provide Oscar with 47.6% of that income. • The parties have not yet dealt with division of property and equalization. In addition to the parties’ interests in the matrimonial home, Oscar has a pension through his union.

It is significant to me now in determining support that Maria, in paying the expenses of the joint-owned matrimonial home, is maintaining the value of Oscar’s investment as well as her own. [ 27 ] I order that Oscar pay spousal support of $405 monthly commencing September 1, 2017. Given Maria’s income to this date from employment (which will decrease), I decline to select an earlier commencement date. [ 28 ] Oscar should know that the after-tax cost to him of this spousal support award is approximately $285 monthly.

He may be eligible to request a reduction of tax deducted at source now, taking this order into account. [ 29 ] I was not asked to set a termination date on any support ordered, and in any event, did not have sufficient evidence that would enable me to consider the issue. The order I make is subject to variation based on a material change in circumstances.

Section 7 expenses [ 30 ] I make no order as to

section 7 expenses claimed. The cost of the proposed swimming lessons is not “extraordinary” as required by the Guidelines, given the cost of those lessons, child support payable and Maria’s income. [ 31 ] With respect to the proposed karate lessons, the cost is “extraordinary”. However, given that there is no evidence that this family had a history of providing such activities and the cost of the lessons, I do not find such activity is reasonable. Released: September 6, 2017 Signed: Justice E. B. Murray