BACKGROUND
The Applicant Mother and the Respondent Father were former common law partners and have a daughter who was 8 years old at the time of this motion. The mother was originally from Brazil, and the father was originally from Uruguay. The father had been residing in Toronto since 1994. The parties began to cohabit in November 2015 and in 2023, the father sponsored the mother and the daughter’s immigration to Canada. The mother and daughter obtained permanent residency on August 8, 2023, and the parties separated less than 3 months later. The mother was employed as a Customer Advisor with the Royal Bank of Canada (RBC) and earned a yearly salary of $45,000. She was also the child’s primary caregiver. The father earned income form various rental properties in Toronto and Brazil. Since separation, the father had paid the mother $1,000 monthly as well as utilities, cable, and internet bills.
This is a motion made by the mother for temporary child and spousal support as well as an imputation of the father’s income to $390K per year. The father seeks an order dismissing the mother’s motion because he was paying $3,415 per month which, he argued, met her needs and also seeks to impute his income to $93,376.
ISSUES
- What is the father’s income for support purposes?
- What interim child support order should be made?
- What should the father contribute to the child’s section 7 expenses?
- Is the mother entitled to spousal support?
- If so, what is the appropriate quantum of spousal support to be paid on an interim basis?
ANALYSIS
What is the father’s income?
The father acknowledged that his income as stated on the recent year’s tax returns was not a reflection of his true income. Pursuant to section 19 of the Child Support Guidelines, the courts have authority to impute income to a parent or spouse as it deems the appropriate. This authority exists for a motion on interim support.
Although motions are generally limited by the evidence available at that stage of the proceeding, it is nonetheless incumbent upon the party seeking a finding of imputation income to provide the court with enough evidence that a reasonable inference could be drawn. As stated, the father earns rental income from properties in Toronto and Brazil and has an ownership interest in 6 triplexes in Toronto and 4 apartments in Brazil. The father maintains that he co-owns all his properties with his mother and sister and that family contributed investments to many of the properties in question.
A valuator was retained to prepare an income assessment, and the Report provides six different scenarios for the father’s income. The court decided that the most appropriate scenario was having 1/3 of the “Salem” property is Toronto attributable to the father. This meant the Ontario income figure was 163K. The court also considered the rental income and related expenses from the properties in Brazil, which equalled $51K in rental income. In total, the court decided that the father’s income for support purposes would be $215K.
What Order for Temporary Child Support should be made?
The court decided that the table amount of child support was appropriate, being $1,822 per month for one child based on the imputed income above.
Section 7 Contributions
The mother sought to divide the section 7 expenses proportionately to the party’s incomes (65% for the father and 35% for the mother). The onus is for the parent seeking the section 7 expenses to prove that all the claimed expenses are considered necessary and reasonable. The court decided that the babysitter expense, the Dovercourt Club, and summer camp passed this test. The court refused to include the child’s extracurricular activities as they are not “extraordinary” and should be covered under the regular table amount.
The parties were ordered to pay the babysitter, the Dovercourt Club, and summer camp expenses in proportion to their incomes.
Is the mother entitled to spousal support?
Since the parties were not married, the Family Law Act governs. Sections 33 and 34 give the court jurisdiction to make an interim or final spousal support order.
The court cited Moge v Moge [1992] 3 SCR 813 and Bracklow v Bracklow [1999] 1 SCR 420 in considering the models in which spousal support entitlement can arise, namely: Compensatory claims (based on economic loss or disadvantage), non-compensatory claims (needs-based), or contractual claims (arising from a domestic contract).
The mother’s position was that she was entitled to spousal support on both compensatory and non-compensatory grounds. In terms of her compensatory claim, she gave up her successful career working in banking in Brazil to become a stay-at-home parent and assist the father in his rental business. Further, she made multiple unsuccessful efforts to find employment in Toronto. In terms of her non-compensatory claim, the judge was satisfied that she was struggling financially while living in Toronto with a salary of $45,000.
Spousal Support Quantum
The court stated that interim spousal support should be based primarily on the motion judge’s assessment of the parties’ needs and means, while the main goal is to provide the dependent spouse with income until trial and a similar financial lifestyle to what was enjoyed throughout the marriage.
The judge considered that the mother had a “moderately strong” compensatory claim which would put her at a mid-range amount of spousal support. Also, the mother’s need for enough funds to meet basic needs moves the needle to a higher range of support. Further, since the parties were not married, there was no matrimonial property to be sold/divided, which also pushes the matter to the higher end of support.
Temporary spousal support was fixed at $5,000.
CONCLUSION
The court required the father to pay monthly table child support in the amount of $1,822 on his imputed income of $215K. The section 7 expenses were divided equally, meaning the father was responsible for 60% and the mother for 40%. Finally, the court ordered that the father shall pay the mother $5,550 in spousal support every month.
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