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Spousal Support During Illness or Disability in Aujla v. Singh

The Ontario Superior Court of Justice released a decision this week in Aujla v. Singh, where Justice Gray discusses the appropriate spousal support amount for a spouse who had multiple sclerosis.

The couple were married in 2004 in an arranged marriage, with the husband immigrating to Canada in 2006. The wife was diagnosed with multiple sclerosis in 2007, a few months after her husband arrived in Canada. The relationship quickly deteriorated afterwards, and they never had any children.

She now lives in the nursing home Leisureworld, where she pays $2,166.58 per month. She cannot work or perform basic tasks any more, is now in a wheelchair, and receives approximately $16,500 per year. Her main sources of income are  $9,161.76 in Canada Pension Plan Disability Benefits, $7,275.24 in long-term disability paid by Manulife, and $600 per month in interim spousal support ordered by Justice Snowie in 2011.

The husband earned approximately $48,000 in 2009 and 2010, though he recently moved to Alberta and indicated he was currently making less.

The wife claimed $1,000 per month for an indefinite period in spousal support, even though the DivorceMate printout she provided the court indicated a Spousal Support Advisory Guidelines (SSAG) range of $154 per month to $208 per month, with a mid-range amount of $182 per month, for a duration of 2 to 4 years.

The husband claimed he simply could not afford $1,000 per month but was willing to pay $400 per month, which was still above the SSAG range.

Justice Gray provided some background on how SSAG ranges are calculated:

[23]                 The Spousal Support Advisory Guidelines have been with us, in one form or another, since 2005.  The current version of the Guidelines was published in July, 2008, and a “New and Improved User’s Guide to the Final Version” was prepared, that includes new case law up to the end of March, 2010.

[24]                 By and large, the Guidelines are utilized through the application of computer software.  Information is inserted, and the computer generates a “range” of spousal support, both in terms of amount and duration.  It is fair to say that the Guidelines cannot realistically be used without the assistance of computer software.

Although the factors for determining spousal support are listed in s. 15.2(4) of the Divorce Act, the Guidelines also provide for exceptional circumstances illness and disability.

Justice Gray referenced excerpts from the Guidelines which speak to the potential inadequacy of without-child support calculations for short marriages where there is long-term illness or disability. He then cited the “New and Improved User’s Guide” for the Guidelines:

 Illness and disability (FV 12.4)

A disproportionate number of cases that come before the courts involve the illness or disability of the recipient spouse, as these are hard cases that don’t settle.  Especially difficult are the cases that involve permanent illness or disability after a short-to-medium marriage.  The law in these cases is particularly uncertain and confused at the moment, as the courts can’t seem to work out a consistent approach.  The Supreme Court of Canada addressed some of these issues in Bracklow, but we see the effects of its lack  of guidance in these cases.  Illness and disability was recognized as an exception in the Draft Proposal, but even the scope and operation of the exception is hard to nail down under the current law.

Under the Advisory Guidelines, most of these cases fall under the without child support formula or the custodial payor formula.  The formulas produce ranges for amount and duration that seem “too low” or “too short”, certainly to recipients.  Payors will want to argue the formula ranges, primarily to time limit their spousal support in short-to-medium marriages.

Three approaches to disability cases can be identified in the decided cases, with the first and second being the most common:

•               Increase Amount, Extend Duration: Many courts respond to the greater need in disability cases by increasing the amount and extending the duration of support:  [case law omitted in original]

•               No Exception:  Disability cases should be resolved within the formula ranges, for both amount and duration, according to a slightly-smaller group of cases.  In effect, these courts do not recognize any disability exception.   [case law omitted in original]

•               Lower Amount, Extend Duration: Some courts will extend the duration of spousal support, even to be “indefinite”, while keeping the amount within the range, often at or near the low end:   [case law omitted in original]

Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue.
[Emphasis in original]

Justice Gray pointed out that Bracklow considered the recipient’s need as just one factor to be considered, and it may be unfair for a disabled spouse in a short marriage to receive indefinite support. The maintenance of a totally disabled spouse requires a balance of delicate interests, and some support from society is to be expected.

The wife was claiming over 5 times the SSAG amount, which Justice Gray found unreasonable and unsupported by case law. Instead, he ordered $300 per month for an indefinite period, subject to variation for material changes in circumstance. Although this was still 1.5 times the SSAG amount and for an indefinite period, the husband was a skilled young man who had enough earning potential to make these payments.

 

No Consent Found in Settlement Order

The Ontario Superior Court of Justice Divisional Court released the decision in Siahbazi v. Rastegar today, finding a lack of procedural fairness and absence of consent to an order made by Justice John McMunagle at a settlement conference.

The wife’s counsel had prepared a draft order over the lunch hour, and using the discrepancy of incomes between the parties and DIVORCEmate calculations, proposed that the husband would pay:

  • retroactive child support of $33,016.50
  • $14,808 in retroactive spousal support
  • ongoing spousal support of $510 per month

The husband, who was self-represented, did not sign the order and did not have the opportunity to discuss some of these provisions. The court noted that the conference judge only had the authority to make final orders on consent, and found that the husband did not provide informed consent and it was not freely given due to pressure applied by Justice McMunagle,

[6]               Even if this equivocal exchange could be construed as consent to the terms being appealed, it was not an informed consent and it was not freely given.  The conference judge misinformed Mr. Rastegar regarding his legal obligations and effectively bullied him into acquiescence.

The court also noted a lack of procedural fairness and a breach of financial justice,

[8]               While recognizing that a settlement conference is a more relaxed and informal process than some other steps in a proceeding, the conference judge in this case crossed the boundary of appropriate judicial comment.  He made references to his own personal circumstances and experience in order to take inappropriate “judicial notice” of facts, including the cultural background of Mr. Rastegar.  At one point, when Mr. Rastegar politely suggested that the conference judge was “kind of not impartial about whatever happened back in Iran”, the judge interrupted him mid-sentence to say “I have some knowledge of Sharia law and we all know how badly women are treated under Sharia law”.  He went on to say “We don’t have people being stoned to death in this country because they happen to look at a man or they’re not wearing a veil or whatever”.  Before the purported consent by Mr. Rastegar the conference judge also said to him “You don’t get to call the shots anymore.  All you get to do, sir, is write a cheque, straight up.  I know that’s not how they work in different countries, and particularly I have some knowledge of Iran.”

[9]               The conference judge constantly interrupted Mr. Rastegar and cut him off mid-sentence.  Mr. Rastegar was belittled and criticized without a fair opportunity to express himself.  The judge effectively prevented him from having any meaningful participation in the process.

[11]           At the beginning of the conference, without having heard any evidence whatsoever, or even any submission on the subject, the conference judge informed Mr. Rastegar that his marriage contract (signed in Iran when the parties were domiciled there) was “not worth the paper it’s written on” … “is not a legally binding contract” and “I’m telling you right now I’m not putting any weight on it”.

[12]           The conference judge summarily pronounced his opinions and conclusions on other issues without any supporting evidence.

The court specifically noted that Justice McMunagle did not take into consideration D.B.S. v. S.R.G. for retroactive child support, or entitlement to spousal support under the Divorce Act

The lack of true consent in this case vitiates the terms of the order in relation to retroactive payments and ongoing spousal support. The court set aside the parts of the order relating to the payment issues identified above, without expressing any opinion on the merits or prejudicing the wife’s claim on those issues.