When Life Hands You Justice Lemon…

Mr. and Mrs. Daciw were married for almost nine years.  They separated in 2005 and during their Court action in 2010, Mrs. Daciw was seeking to collect significant retroactive spousal support.

Her husband had been paying support to her since they were separated, but the monthly amounts he was paying were not reflective of the amounts prescribed by the Spousal Support Advisory Guidelines.  In fairness to the husband, he had been assisting his ex-spouse in paying down debts she had accumulated on her own.  He also paid portions of the equalization payment he owed ahead of schedule.

The issue the judge faced in this case, which was heard by the Ontario Superior Court of Justice, was whether or not the husband should have been paying spousal support based on the Guidelines, and if so, how much did he owe from the date of separation onward.

Child support and division of property were also at issue in this matter, but for discussion purposes, I have elected to focus on the factors that the parties were arguing with respect to entitlement to and the amount of spousal support and the retroactive support claim.

Spousal Support

Bad Faith

Mrs. Daciw and her counsel were looking for the full Guidelines amount of spousal support, on top of some of the aforementioned advances and payments Mr. Daciw was making.  They also argued that Mr. Daciw was showing “bad faith” throughout the proceedings and that his behaviour should be factored into the spousal support calculation.

The judge, Justice Lemon, disagreed.  If anything, Justice Lemon seemed to suggest that Mr. Daciw was acting as admirably as can be.  He forgave his wife for using joint monies to finance her separation; he made advances on equalization, as per his wife’s needs; he failed to obtain a tax benefit for paying support for multiple years; he paid his arrears of child support immediately upon discovery; and he consistently paid Ms. Daciw’s gambling debts.

Disability

Mrs. Daciw’s income was also contested between the parties.  During the marriage, she worked part-time and was encouraged to look for full-time work, which was probably attainable given her position and her employer.  She has been unemployed since May 2009, however, when she began her “stress leave” for which she earns a nominal income.  Mrs. Daciw is planning on getting back to work with her old employer, Royal Bank, but at the time she appeared in Court, suggested her income should be imputed at $20,000.00 per year.

Justice Lemon was not persuaded by her disability and what impact it was having on her ability to look for work.  Justice Lemon anticipated that Mrs. Daciw would return to work shortly and earn more than the $20,000.00 she would like the spousal support calculation based on.

A New Relationship

Mrs. Daciw was residing with one Christopher Bowman and Justice Lemon had to determine whether their arrangement called for Mr. Bowman to have an obligation towards Mrs. Daciw that would mitigate Mr. Daciw’s support obligations.  Justice Lemon found that the nature of their relationship, although it involved some sexual interaction and some domestic activities,  was not reflective of that of a spouse or common law partner.

Retroactive Spousal Support

As there had also been argument about Mr. Daciw’s income, Justice Lemon made the decision with an Ontario Court of Appeal decision in mind.  In Vanos v. Vanos, the Court stated:

“When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination.  However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.”

Even though Mr. Daciw paid less monthly spousal support than the Guidelines prescribed, Justice Lemon refused to order that he pay retroactive support to make up the difference.

On the surface, it looked like he may not have been meeting his spousal support obligations, but when you factor in the other payments he was making, Mr. Daciw was properly compensating Mrs. Daciw for the detriment she was suffering as a result of the breakdown of their marriage.   

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