Court and Parties

Court of Appeal for Ontario Date: 20240530 Docket: COA-23-CV-0819

Huscroft, Miller and Favreau JJ.A.

Between

Allison Renee Cote White Applicant (Appellant)

and

Richard Donald Leigh White Respondent (Respondent)

Counsel: Miranda J. Belansky, for the appellant Gordon S. Campbell, for the respondent

Heard: May 17, 2024

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated June 29, 2023.

Reasons for Decision

[1]

Overview

The appellant, Ms. White, appeals an order varying a separation agreement that significantly decreased her entitlement to spousal support. She submits that the trial judge erred in imputing income to her of $35,000 per year, and in refusing to impute income to the respondent, Mr. White, beyond his expected annual income at the time of the trial. We see no error in the trial judge’s decision and dismiss the appeal.

[2]

Background

The parties separated on December 19, 2018, after an 18-year marriage. They have two daughters, respectively born in 2004 and 2006. As of 2011, Ms. White did not work outside the home. At the time of their separation agreement, Mr. White’s annual income was $189,000.

3On April 16, 2019, the parties entered into a separation agreement. The agreement provided that the children would live with Mr. White for most of the year and with Ms. White for the rest of the year. Neither party was to pay child support. Mr. White was to pay Ms. White $4,100 per month in spousal support, starting on May 1, 2019, for fourteen years and two months. However, Ms. White was to “make reasonable efforts to support herself”, and Mr. White’s obligation to pay spousal support would be reduced in proportion to Ms. White’s income once she started earning more than $30,000 per year.

4The separation agreement also provided that spousal support could be changed “if there is a material change in circumstances, even if the change was foreseen or foreseeable”. The agreement listed qualifying changes in circumstances as including changes to either party’s financial position or to the child support arrangements.

5At the time of their separation, the parties anticipated that Ms. White would spend time in Mexico for the purpose of setting up a travel business. This did not work out.

6In the period between May and July 2020, Mr. White lost his job and stopped paying spousal support [1]. The appellant then brought an application to, amongst other requested relief, enforce the settlement agreement. Mr. White’s response to the application included a request that the separation agreement be varied based on changes in circumstances.

7By the time of the trial, there had been several changes since the parties entered into the separation agreement. In March 2020, the children started living full-time with Ms. White, but one of them moved back with Mr. White in 2021. After Mr. White lost his job, his income fluctuated from year to year as he went through different jobs. By the time of the trial, his previous employer rehired him and he expected to earn $80,000 per year. Ms. White found some temporary work in a duty-free gift shop during the summers of 2020 to 2023, but her income never exceeded $20,000 per year.

[8]

The Trial Decision

After hearing evidence over three days, the trial judge found that there was a material change in circumstances, given Mr. White’s change in income and the change in the children’s principal residence. This led him to make an order varying the parties’ separation agreement in several respects, including by requiring that Mr. White pay child support to Ms. White, and by reducing Ms. White’s entitlement to spousal support.

9In deciding the appropriate amounts of child and spousal support, the trial judge considered whether to impute income to both parties.

10He was satisfied that it was appropriate to impute income to Ms. White in the amount of $35,000, reasoning as follows:

The [a]pplicant is capable of work. She should be working year-round, not just summers. By May of 2020 she should have been able to earn $35,000 a year. I think that she has deliberately kept her annual income below $30,000 because of the provision in the agreement for reduction of spousal support in that event. I impute $35,000 to her, which I consider modest in the circumstances.

11The trial judge refused to impute any income to Mr. White above the $80,000 per year that he expected to earn in 2023. The trial judge accepted Mr. White’s evidence that he did not deliberately lose his job. Rather, he found that Mr. White had trouble performing his work as a salesman, because he was depressed and was having difficulties looking after his daughters’ needs given the travel requirements of his job. In reaching this conclusion, the trial judge had the benefit of evidence from Mr. White’s previous employer. He also based his finding that Mr. White was not intentionally underemployed on the fact that Mr. White found two other jobs after losing his original job as a salesman, and that he ultimately returned to work for his original employer.

[12]

Analysis

Ms. White submits that the trial judge erred in imputing income to her and in failing to impute any income to the respondent beyond his expected annual income for 2013.

13As a starting point, it is worth noting that Ms. White does not challenge the trial judge’s findings that there was a change in circumstances that warranted altering the separation agreement. She only takes issue with the trial judge’s decision about imputing income.

14This court owes substantial deference to the trial judge’s findings of fact and mixed fact and law. The court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1; see also Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. In addition, the imputation of income for support purposes is a discretionary and fact-specific exercise: Levin v. Levin, 2020 ONCA 604, at para. 12; see also Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561.

15We see no error in the trial judge’s decision to impute income to Ms. White. His decision was based on the terms of the separation agreement and the evidence of Ms. White’s efforts to find employment following the separation. In their separation agreement, the parties explicitly agreed that Ms. White would make reasonable efforts to support herself. While there was some evidence that the appellant had limitations in finding employment, such as her level of education, lack of work experience and mental health issues, there was also evidence that she worked during the summers. In the circumstances, it was open to the trial judge to find that Ms. White had not made reasonable efforts to find employment as required by the separation agreement. Notably, the trial judge only imputed income of $35,000 to Ms. White, which is approximately equivalent to working full-time at minimum wage. This amount was both modest and reasonable, and we see no basis for interfering with this aspect of the trial judge’s decision.

16We also see no error in the trial judge’s determination not to impute income to the respondent beyond his expected earnings. His decision was based on the evidence before him concerning the reasons Mr. White lost his job and his efforts to find a new job. These findings are entitled to deference, and we see no palpable and overriding errors.

[17]

Disposition

Accordingly, the appeal is dismissed.

[18]

Costs

As agreed between the parties, the Mr. White, as the successful party on appeal, is entitled to costs in the amount of $12,500.00, all inclusive.

“Grant Huscroft J.A.”

“B.W. Miller J.A.”

“L. Favreau J.A.”

Footnotes

1While the trial judge stated that Mr. White lost his job and then stopped making spousal support payments, there is some conflict in the evidence over whether Mr. White stopped making spousal support payments before or after he lost his job. Given the issues on appeal, it is not necessary to resolve this conflict.