BACKGROUND
This is an appeal to the Divisional Court of orders for spousal and child support. The parties were in an approximately 5-year long distance relationship, never married, and had one child. The appellant husband came to Canada from Nigeria as a political refugee, lived in Brampton and was employed as a nurse. The respondent wife was born in Zimbabwe and moved to Canada after completing high school. Following the parties meeting in the GTA, the wife moved to Thunder Bay to pursue a career as a pilot. The husband described the parties’ relationship as “open” while the wife disagreed. The parties struggled with conception and the wife’s position was that she agreed to leave her career and move to Brampton to start a family via IVF therapy. After an 11-day trial, the judge found that the parties were “spouses” and that the wife was entitled to mid-range spousal support on a compensatory and non-compensatory basis. At the Divisional Court, the husband requested that the judgment of the lower court be set aside, that the spousal support claim be dismissed, and that his income for support purposes be readjusted. The husband’s argument was that the trial judge erred in law and the application of the law to the facts.
ISSUES
- Did the trial judge err in finding the parties were "spouses"?
- Did the trial judge err in awarding spousal support?
- Did the trial judge err in imputing income to the husband?
ANALYSIS
Did the trial judge err in finding the parties were "spouses"?
Since the wife claimed spousal support and the parties never married, the onus was on the wife to establish that she was a “spouse” in accordance with the Family Law Act.
The trial judge found that even though the parties lived in different cities for a large portion of their relationship, this was out of necessity for the wife’s employment. In any event, there was an “abundance of evidence” that the parties were in a committed “relationship of some permanence.”
The husband argued that the judge relied on numerous misapprehended factors and discrepancies to find that the parties were “spouses” even though they lived in different cities most of the time.
The Divisional Court did not give any effect to these submissions because the factors present in determining a spousal relationship were well-established. The court made it clear that just because the parties resided separately, does not mean that there cannot be a finding that there is a relationship of some permanence.
Did the trial judge err in awarding spousal support?
According to the trial judge, the wife’s income was negatively affected following the birth of the parties’ child and she was entitled to mid-range spousal support because she sacrificed her career by relocating to Brampton to start a family.
The husband argued that the judge misapplied the law in terms of the wife’s entitlement as she did not consider the mandatory criteria in section 33(9) of the Family Law Act. He also argued that the wife was financially independent when they met and she did not make a career sacrifice by moving to Brampton.
The Divisional Court stated that this argument lacked merit as the trial judge was not required to enumerate the statutory factors regarding her entitlement analysis. Further, the trial judge made their assessment regarding why the wife left her employment in Thunder Bay as a determination of fact and credibility which attracts a high degree of deference.
Was the trial judge in error in imputing income to the husband?
The trial judge found several ‘red flags’ which lead to the finding that the husband had not provided fulsome financial disclosure, including proof of income. In the husband’s bank statements did not show anything with respect to his employment income, rather, they showed unexplained activity. The court determined that the husband’s income should be based on the best approximation of his income: $157,000. Ultimately, the court stated that this amount could still be less than what the husband actually made.
As the court is permitted to impute income as it considers the circumstances appropriate, the Divisional Court held that there was no basis to reverse the trial judge’s discretionary imputation of income.
CONCLUSION
Ultimately, the court dismissed the husband’s appeal, and the wife was entitled to costs in the amount of $20,000. The support orders made by the trial judge remained in effect.
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