Dawson-Fisher v. Fisher, 2011 ONCJ 489

Toronto (North York) Registry No. D49380/09 DATE: 2011·IX·12 CITATION: Dawson-Fisher v. Fisher , 2011 ONCJ 489 ONTARIO COURT OF JUSTICE BETWEEN: DONNA DAWSON-FISHER, Applicant, — AND — WINSTON FISHER, Respondent. Before Justice Robert J.

Spence Heard on 8 September 2011 Reasons for Judgment released on 12 September 2011 SUPPORT ORDERS — Assessment of quantum — Payor’s assets and means — Ability to pay — Payor’s moral duty to support other dependant — Spouses had separated 2 years ago upon breakup of marriage of some 19 years’ duration — Neither spouse was doing well financially — Husband filed claim for spousal support against wife whose annual income was 50% larger than his — Husband’s household had no dependants but mother had care of younger girl (12 years old), older girl (18 years old) and older girl’s child (grandchild) — Court was presented with calculations under Spousal Support Advisory Guidelines but pointed out that their consideration was premature — Court first needed to decide threshold issue of husband’s entitlement and of wife’s ability to pay, which required examination of

section 30 and subsections 33(8) and 33(9) of Family Law Act — Technically, husband was correct to argue that wife had no legal obligation to support older girl (who was currently not in school) or to grandchild and that she could reduce her expenses if young mother and child moved out of wife’s home — But reality was that older girl had no independent means to support herself and her child and would likely turn to welfare to survive — Implicit in husband’s argument was that wife’s legal responsibility to support him was greater than any moral responsibility toward her older daughter and granddaughter — Court sidestepped any attempt to grade these obligations by noting that subsection 33(9) of Act required court to consider “all of the circumstances of the parties”, which necessarily included financial responsibility that wife had chosen to assume in respect of her older daughter and grandchild — Regardless of legalities, court found that wife’s choice was entirely reasonable in her particular circumstances — It was choice that most mothers would make in similar circumstances and court was not prepared to make order that could potentially condemn older daughter and grandchild to life on public welfare at bare subsistence level — In any event, even if older daughter and grandchild left wife’s home, wife’s income would still barely provide for herself and her younger daughter and leave nothing for any spousal support payments to husband — Finally, any support order in this case would NOT accomplish any of 4 purposes of spousal support set out in subsection 33(8) of Act — Husband’s support application dismissed.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended], clause 7(1) ( e ). Family Law Act , R.S.O. 1990, c. F-3 [as amended],

section 30 , subsection 33 (8) and subsection 33(9). Family Law Rules , O. Reg. 114/99 [as amended], rule 2, subrule 2(2) and subrule 2(3) CASES CITED Eastwood v. Eastwood , 2006 NBQB 413 , 307 N.B.R. (2d) 210, 795 A.P.R. 210, 34 R.F.L. (6th) 408, [2006] N.B.J. No. 513, 2006 Cars​- well​NB 655 (N.B.Q.B., Fam. Div.). 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.).

Herrera v. Raji , 2011 ONCJ 398 , [2011] O.J. No. 3655, 2011 Cars​well​Ont 8066 (Ont. C.J.). Yemchuk v. Yemchuk , 2005 BCCA 406 , 215 B.C.A.C. 193, 44 B.C.L.R. (4th) 77, 355 W.A.C. 193, [2005] 10 W.W.R. 634, 257 D.L.R. (4th) 476, 16 R.F.L. (6th) 430, [2005] B.C.J. No. 1748, 2005 Cars​well​BC 1881 (B.C.C.A.). AUTHORS AND WORKS CITED Rogerson, Carol J. and D.A. Rollie Thompson: Spousal Support Advisory Guidelines , (Ottawa: Minister of Justice and Attorney General of Canada, July 2008). Kay M.

Carlson .................................................................................. counsel for the applicant wife Allan M. Goldstein .................................................................... counsel for the respondent husband JUSTICE R.J. SPENCE:— 1: NATURE OF THE CASE [ 1 ] This is a case about whether the husband is entitled to an order for spousal support from the wife and, if so, the quantum and duration of any such order. 2: BRIEF BACKGROUND [ 2 ] Donna Dawson-Fisher (“wife”) is 47 years old. Winston Fisher (“husband”) is 49 years old. They were married in 1990 and separated in 2009.

This was a marriage of about 19 years’ duration. [ 3 ] They are the natural parents of two children, namely, Cherise, who is 18 years old, and Shirin, who is 12 years old. By court order dated 1 December 2009, Justice Harvey P. Brownstone awarded custody of both children to the wife, with specified access to the husband.

He also awarded final child support for both children to the wife in the amount of $403 per month. [ 4 ] On 12 March 2010, Justice Brownstone awarded temporary spousal support to the husband in the amount of $290 per month, retroactive to 1 December 2009. [ 5 ] On 16 June 2010, I made a final consent order changing child support to $252 per month, effective 1 January 2011, as the parties agreed that the wife would then no longer be entitled to support for Cherise, given her age. 2.1: Counsel Co-operate in Agreeing to a Rule 2 Focused Hearing [ 6 ] On 7 February 2011, the parties, by their respective counsel, agreed that the issue of spousal support could be resolved on a final basis by means of a rule 2 [1] hearing.

Subrule 2(2) mandates the court to deal with cases “justly”, which includes: [2] (

a) ensuring that the procedure is fair to all parties; (

b) saving expense and time; (

c) dealing with the case in ways that are appropriate to its importance and complexity; and (

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. [ 7 ] The parties agreed to a procedure whereby the court would make a final order following the delivery of affidavits, exhibits and the making of submissions by counsel. That hearing was held on 8 September 2011.

It lasted less than two hours. [3] 2.2: The Parties’ Incomes [ 8 ] Although there was some minor dispute over this issue, counsel agreed that, for purposes of this hearing, the wife’s income was $46,473, and the husband’s income was $30,274. 2.3: The Spousal Support Advisory Guideline Calculations [ 9 ] Give or take a few dollars, the calculations under the Spousal Support Advisory Guidelines (Ottawa: Minister of Justice and Attorney General of Canada, July 2008) (“SSAG”), reveal that, with child support payable by the husband to the wife in the amount of $252 per month, [4] the wife would pay spousal support to the husband in the amount of $318 per month at the low range, $371 per month at the mid range, and $424 per month at the high range.

Support would be payable for an indefinite duration, subject to variation and possibly review. 2.4: The Order Sought by Each of the Parties [ 10 ] Husband’s counsel sought spousal support at the high end of the range, namely, $424 per month, given the fact that the

marriage was of some 19 years’ duration. As well, he sought support for an indefinite period of time. [ 11 ] Wife’s counsel argued that the court should depart from the SSAG calculations and that the court should award no further spousal support. She submitted that the support that the wife has paid to date, for approximately one and one-half years, ought to come to an immediate end. 3: THE LAW [ 12 ] The leading case in Ontario on the use of the SSAG is 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.). In that case, the Court of Appeal considered the applicability of the SSAG, when the calculations are raised by the parties before the trial judge who is charged with the issue of deciding spousal support. At paragraph [103], the court stated: [103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result.

This is no different than a trial court distinguishing a significant authority relied upon by a party. In other words, while the Court of Appeal stamped its imprimatur of “significant authority” on the SSAG, the Court was clear that the SSAG are not to be treated as binding authority. [ 13 ] In any event, the SSAG cannot be used to establish an entitlement to support. Rather it is a “useful tool” in calculating quantum, once entitlement has been established. See Eastwood v. Eastwood , 2006 NBQB 413 , 307 N.B.R. (2d) 210, 795 A.P.R. 210, 34 R.F.L. (6th) 408, [2006] N.B.J.

No. 513, 2006 Cars​well​NB 655 (N.B.Q.B., Fam. Div.); and Yemchuk v. Yemchuk , 2005 BCCA 406 , 215 B.C.A.C. 193, 44 B.C.L.R. (4th) 77, 355 W.A.C. 193, [2005] 10 W.W.R. 634, 257 D.L.R. (4th) 476, 16 R.F.L. (6th) 430, [2005] B.C.J. No. 1748, 2005 Cars​well​BC 1881 (B.C.C.A.). [ 14 ] The threshold issue of entitlement flows from the legislative provisions of the Family Law Act , R.S.O. 1990, c. F-3, as amended (“the Act”). The starting point is

section 30 of the Act, which states: 30. Obligation of spouses for support.— Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33(8) of the Act provides:

(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 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). And, finally, subsection 33(9) of the Act states (my emphasis added):

(9) Determination of amount for support of spouses, parents.— In determining the amount and duration, if any , of support 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 of living while the parties 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 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 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 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. [ 15 ] It is subsection 33(9) of the Act that sets out the factors to take into account if spousal support should be ordered and, if so, the quantum to be ordered, as “cross-checked” by the SSAG. [5] 4: ANALYSIS [ 16 ] The husband argues that, although the wife’s financial circumstances may be somewhat challenging, there is no reason for the court to depart from the SSAG calculations.

He points out that his income is even more modest than hers and the expenditures shown on his financial statement are devoid of any excess or luxury items. It is apparent that, on the budget disclosed in his financial statement, the husband has a yearly shortfall of something in excess of $4,000. That said, it is possible to go through his statement of expenses and reduce some of his expenditures — for example, clothing could be reduced from $200 monthly to $100, and household supplies could be reduced from $85 monthly to $40.

However, these are relatively minor points of departure from what the husband’s financial statement reveals. [ 17 ] The wife’s financial statement discloses that she is operating at an annual shortfall of approximately $7,000. There are a number of expenditures in her financial statement that also could be reduced or eliminated.

For example, she pays $200 monthly toward her granddaughter’s day care, something for which she is under no legal obligation. [6] She also spends $100 per month on “hair care and beauty”, something that could arguably be reduced, given her own modest financial circumstances. [ 18 ] Although the wife has no legal obligation to support Cherise [7] now that she is 18 years old, Cherise in fact continues to live with her mother. She herself became a mother when she was about 17 years old. Cherise’s pre-school daughter now lives with Cherise and the wife in the wife’s family home.

Accordingly, the wife is supporting herself, Shirin, Cherise, and Cherise’s young child — four people in total. [ 19 ] According to the wife’s evidence, although Cherise had previously left school — thus ending, at the time, the husband’s obligation to pay child support for Cherise — she has now applied to college. The wife deposes: Staying at home has ensured that Cherise completes her high school. She has applied to college and has one full acceptance and is on two wait lists.

She continues to be an honour student and cares for her child while keeping up her homework. [ 20 ] Unfortunately, I was not provided with any updating evidence whether Cherise is now attending college. If she is — or is about to do so — it would appear likely that the husband would then be obligated to pay support for two children under the Child Support Guidelines , O. Reg. 391/97, as amended, including, possibly, a contribution toward Cherise’s post-secondary school expenses, pursuant to clause 7(1)(

e) of the guidelines. [ 21 ] However, whether or not Cherise is now attending school on a full-time basis, she and her young child are living with the wife. The husband’s position is that the wife has no legal obligation to support either Cherise or Cherise’s daughter and that she could reduce her expenses if Cherise were to move out of the wife’s home. Although this is undoubtedly true, it is obvious that, if this were to occur, Cherise would have no independent means to support herself and her child and she would likely have to rely on welfare in order to get by.

Implicit in the husband’s argument is that the wife’s legal responsibility to support him is greater than any moral responsibility toward her 18-year-old daughter and her granddaughter. However, in the circumstances of this case, the court’s obligation to consider “ all of the circumstances of the parties ” requires me to take into account the financial responsibility that the mother has undertaken in respect of her daughter and her granddaughter. [ 22 ] I note as well that, in comparing the respective debt positions of the husband and the wife, his debts total $8,660, while the wife’s debts total $16,657.

The wife’s strained financial circumstances has led to her “regularly” being late with her rental payments and having been served, at least once, with a “Notice to End a Tenancy Early for Non-payment of Rent”. [ 23 ] As I examine the husband’s affidavit sworn just prior to this hearing, I do not see anything similar to the stressful financial circumstances that the wife outlines in her affidavit. Although it is clear that his financial resources are very limited, he does not appear to have difficulty meeting his monthly rental obligations.

Further, he is responsible for supporting only himself. [ 24 ] In 2006 and 2007, the husband’s income was under $20,000 annually. Since 2008, it has increased to the range of $28,000 to $30,000 annually, where it currently sits. It is apparent to me that he has suffered no financial prejudice as a result of the marriage or the separation of the parties, in terms of his income-earning ability.

On the other hand, the wife’s income has slowly declined over the past few years, from $52,200 in 2008, to $50,322 in 2009, to $48,936 in 2010, and $46,473 in 2011. [8] [ 25 ] In my view, no order for spousal support would accomplish any of the purposes set out in clauses 33(8) (

a) to 33(8)(

d) of the Act . [ 26 ] In examining subsection 33(9) of the Act , I place considerable reliance on the words “the court shall consider all the

circumstances of the parties ”. In doing so, as I noted earlier, I am mindful of the fact that, although the wife may not have a legal obligation to financially assist her daughter Cherise and Cherise’s small child, it is entirely reasonable for her to do so in the particular circumstances.

And by so doing, the wife has placed herself in an even more constrained financial situation than she would otherwise have experienced if Cherise were capable of supporting herself and her small child. [ 27 ] While I do not necessarily conclude that the wife’s moral responsibility to support Cherise and Cherise’s small child is greater than her potential legal obligation to pay something toward spousal support, the fact is that she has chosen this path and, in my view, she has made the choice that most mothers would make in similar circumstances.

Having regard to the respective financial circumstances of each of the husband and the wife, I am not prepared to make an order that could potentially have the effect of removing Cherise from her mother’s home, thereby requiring Cherise and her daughter to rely on public welfare and to live at a bare subsistence level. [ 28 ] Furthermore, even if Cherise and her daughter were not living with the wife, the wife’s income would still be short of adequately providing for herself and her daughter Shirin, such that she would be able to make any material spousal support payments to the husband. [ 29 ] The obligation to pay support under

section 30 of the Act is based on “need” and “capability” of paying. The unfortunate fact is that, although the husband arguably has some need, [9] there is simply not enough money to go around, as is often the case with middle, or lower-middle-class income earners whose marriage has come to an end and who must rely on the same combined income to support two households instead of one. Although the wife’s income is approximately 50% greater than the husband’s income, she is supporting four people on that income, whereas the husband is supporting only himself on his lower income.

On a per-person basis, the husband has approximately $30,000 for the support of himself alone, whereas the wife’s income results in an allocation of about $11,600 for each of the four persons in her household. [10] I conclude, in all the circumstances of this case, that the wife has no reasonable ability to pay spousal support. 5: CONCLUSION [ 30 ] The wife has been paying temporary spousal support since 1 December 2009. Spousal support shall cease, effective immediately following the payment due on 1 September 2011.

In the event the Family Responsibility Office is in receipt of any money from the wife for any subsequent period that that Office has yet to distribute, those funds shall forthwith be returned to the wife. If the Office has distributed any such funds to the husband, he shall forthwith return that money to the wife. On a final basis, the husband’s claim for spousal support is dismissed. [ 31 ] Should the parties wish to make submissions regarding costs, they may

schedule a court appearance with the trial co- ordinator’s office. I will allow a maximum of 30 minutes for this appearance.