ONTARIO COURT OF JUSTICE

Date: 2016-10-11

Court File No.: Toronto DFO 13 10593

BETWEEN:

SHEILA MARY WILSON

Applicant

— AND —

JOHN ANDREW CUNNINGHAM

Respondent

Before: Justice E. B. Murray

Heard on: September 20, 2016

Reasons for Judgment released on: October 11, 2016

Counsel:

Mr. Christopher Burrison — counsel for the applicant

Mr. John Cunningham — On his own behalf

MURRAY, E. B. J.:

Background and Facts

[1] Sheila Wilson and John Cunningham were married on August 15, 1998 and separated in March 2008. They have two children, L., aged 17, and S., aged 12. During their marriage they lived in Hong Kong, where John worked as an investment banker and Sheila worked as a teacher in a private school. The children attended private schools in Hong Kong.

[2] After the parties' separation, two orders were made by the Hong Kong court. A consent order made by Justice Melloy on January 21, 2010 provided that John pay child support of HK$33,000 monthly, which converts to CDN$4,453.75 each month. In September 2010 Sheila advised that she wanted to relocate to Toronto with the children. With John's consent, she and the children moved to Toronto in July 2011. She brought a motion asking that John contribute to the cost of the children's attendance at private schools, a motion that was hotly contested by John. Justice Own's decision of October 21, 2011 ordered John to pay Sheila 70% of the school fees: $1,758 monthly towards L.'s fees at Havergal College and $1,933 monthly towards S.'s fees at Upper Canada College. John's support payments thus totaled CDN$8,144.75 monthly.

[3] Prior to the hearing before Justice Own, John had arbitrarily cut back on his support payments. This resulted in Justice Own making an attachment order directed to John's employer, HSBC.

[4] At the time of the Hong Kong orders ("HK orders"), John was employed by HSBC, and earned CDN$298,266 per year.

[5] Within three weeks of the Own order, John was terminated by HSBC. He stopped paying child support. Sheila suspects that John, who admits he was angered by the Own order, voluntarily left his employment.

[6] John moved back to Canada, arriving in Vancouver in March 2012. He then moved to Toronto in April 2013. Sheila registered these orders for enforcement under the Interjurisdictional Support Orders Act (ISOA) in November 2013.

[7] John now brings a motion pursuant to section 39 of ISOA, asking for a change in both HK orders, alleging that there has been a material change in his circumstances related to his ability to pay child support. John commenced his motion in December 2013. He initially asked for an order reducing the quantum of support in the Melloy order and an immediate termination of the Own order requiring him to contribute to the children's school fees. In April, 2016 he amended his motion, requesting the following relief:

• A reduction in child support payments and a termination of the order requiring him to contribute to the children's school fees, retroactive to March 2012. John submits that income should be imputed to him starting in 2012 in an amount of $67,500 annually and that he should be ordered to pay $1,000 monthly in child support.

• If John is successful, he asks that Sheila repay him for any overpayments made.

• An order directing that L. and S. attend public school.

[8] Sheila asks that I dismiss John's motion because he has not demonstrated a material change in circumstances. Counsel says that John's income for Guideline purposes has not decreased since the Hong Kong orders were made. In making this submission, counsel asks that I impute annual income of $298,265 to John for the years 2011-2012, based on an adverse inference to be drawn from his repeated failure to comply with orders for disclosure. For the years 2013-2015, counsel argues that John's income from all sources, including capital gains that he failed to declare for tax purposes, exceeds $300,000 annually when averaged over 3 years. For 2016 and on an ongoing basis, counsel submits that the court can infer that John will earn or be capable of earning an income from investments similar to that imputed to him from 2013-2015.

[9] Sheila asks further that arrears of support owing be quantified at $62, 146.75 as of September 1, 2016, and that I order security for payment of child support in an amount of $250,000.

[10] Last, Sheila says that the court has no authority to direct her to enroll the children in public school, as this proceeding is brought pursuant to ISOA and the Family Law Act. I agree with Sheila on this point, and dismissed this request from John at the outset of the hearing.

[11] This motion was heard on the basis of extensive documentary evidence filed by the parties and the transcript of John's questioning conducted on May 13, 2016. Besides affidavits and financial statements from the parties and an affidavit from George Wilson, Sheila's father, the material included an expert report dealing with John's income from 2012-2015 prepared by Vivian Alterman, a chartered accountant and chartered business valuator, and a report from psychiatrist Dr. Jay Moss whom John consulted after returning to Canada when unemployed.

[12] Sheila was represented by counsel at the hearing of these motions. Although John has occasionally been represented by counsel in this case, he represented himself at the hearing of the motions. The parties agreed that I would accept both Ms. Alterman's report and Dr. Moss's report into evidence although they were not sworn and neither author was presented for cross-examination.

[13] Sheila withdrew enforcement of the HK orders from the Family Responsibility office soon after she registered these orders, and began private enforcement. A default hearing pursuant to the Family Responsibility and Support Arrears Act (FRSA) was begun in April 2014, and adjourned from time to time. That hearing was returnable at the same time as the hearing of these motions.

[14] This is my decision on the motions.

A. THE LAW

[15] Pursuant to section 18(2) of ISOA, an order from a reciprocating jurisdiction registered in Ontario has "the same effect as a support order made by an Ontario court".

[16] If both the Applicant and the Respondent ordinarily reside in Ontario, then Section 39 of ISOA provides that on a motion to change a registered order, the provisions of the Family Law Act (FLA) apply to the variation. Thus, John's motion to change is being heard pursuant to the FLA.

Section 37 of the FLA provides as follows:

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[17] The FLA does not permit the provincial court to make an order for security for support payments except in restricted circumstances, circumstances which do not apply here. However, section 41(10)(e) of FRSA provides that on a default hearing a court may "unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor…. provide security in such form as the court directs for the arrears and subsequent payment".

B. THE EVIDENCE

[18] Many of the facts are agreed upon by the parties.

1. Current Facts

[19] John is 50 years of age and Sheila is 47 years of age. The children live primarily with Sheila, and see their father on Sunday afternoons and from time to time for outings or activities.

[20] John's declared income in 2015 was $77,899. He is now not employed and is in receipt of Employment Insurance payments. According to John's latest financial statement, sworn April 5, 2016, he has $1,851,000 in a brokerage account, from which no interest or investment income has been earned since November 2011. John also has approximately $41,000 in other accounts. His only significant debt is to Sheila for support arrears, which John said were $125, 484 at the time he swore his last financial statement. John owns no real property.

[21] Sheila is employed as a teacher. Her income in 2015, including income from a trust, was $94, 463. She owns no real property. Her net worth is approximately $1.4 million; her most significant asset is a trust that she established for herself containing $1.184 million, the funds she received in the divorce settlement. Sheila is also the beneficiary of 1/3 of her mother's estate, which totals about $1.4 and is administered by her father. She is not entitled to receive the funds until her father's death; Mr. Wilson has discretion to advance funds and has done so to the tune of about $180,000 to pay the children's school tuition.

[22] L. and S. have been attending private school in Toronto since 2011. L. is in Grade 12 at Havergal and S. is in Grade 9 at Upper Canada College. Both children are doing well, academically and socially. Sheila says that their entire friendship network revolves around their respective schools. Tuition at each school is now approximately $30,000 per year. Sheila has been paying these fees without contribution from John, drawing initially on savings and later on advances on her inheritance from her mother's estate. Enforcement of the HK orders has repaid her for most of what John's contribution should have been to these costs. John seeks to have this money returned to him, if successful on the motion.

2. Background Facts

[23] John is originally from Winnipeg, and Sheila is originally from Toronto. John and Sheila both attended private schools when they were children.

[24] John and Sheila met in Vancouver in 1996, where he worked as a stockbroker and she as a teacher. They began living together and moved to Hong Kong. After the move, John continued to work as a stockbroker and Sheila as a teacher.

[25] John changed jobs several times while in Hong Kong, and his income increased with his changes in employment. In 2007 he began working for HSBC, rising to the position of Director of a branch of Equity Sales. He advised the bank's institutional clients about investments.

[26] John was the primary breadwinner, and Sheila was primarily responsible for the care of the children. Sheila's employment provided a subsidy for 85% of the cost of the children's private school fees. The parties had full-time household help.

3. Facts After the Own Decision of October 21, 2011

[27] John was terminated by HSBC on November 10, 2011. He says that the termination came as a complete surprise to him, and that he had no sign that his job was in jeopardy at any time prior to that day. John says that the day he was terminated he was asked to sign a severance agreement, and told that if he did not, he would receive only the statutory minimum payment. He signed.

[28] The agreement, dated November 10, 2011, states that John's employment was terminated as "a result of business restructuring…on the grounds of redundancy". John was provided with a severance payment of approximately 3 months' salary, as well as monies from accumulated retirement benefits and retention of any restricted shares previously awarded to him. John was also given a letter from HSBC dated November 14, 2011 that reiterated that John's position ceased for "reasons of redundancy".

[29] John stopped paying all child support after he was terminated. He never voluntarily made any payment to the children's school fees, as ordered by Justice Own. He did not make any child support payments until April 23, 2014, after he was arrested as an absconding debtor and agreed to pay all arrears as a condition of release. More will be said about that below.

[30] After his termination, John appealed Justice Own's order. He did not apply to vary that order or the order of Justice Melloy, based on the change in circumstances he alleged.

[31] John left Hong Kong in March 2012, and moved to Vancouver. At that time, he had savings of $US 1, 425,000 in his brokerage account. That amount has never fallen below that level, and now stands at $CDN 1, 851,000.

[32] Prior to moving to Vancouver, John sent Sheila's father an email on March 12, 2012 saying that he had no intention of ever contributing to the children's school expenses.

[33] John did not appear at the hearing of his appeal in the Hong Kong court in May 2012, and the appeal was dismissed.

[34] John says that in BC he tried to apply under ISOA to change the HK orders. He produced forms he had completed for that purpose. However, Sheila never received notice of any motion to change from BC.

[35] John moved to Toronto in March 2013, and, as set out above, commenced his motion to change December 18, 2013.

4. Events in This Case

[36] At the first case conference in the proceeding in April 2014, Justice Katarynych, the case management judge, ordered John to pay support arrears of $220,897.60 before proceeding with the motion to change. His financial statement showed that he had $1,620,576 in a bank account in Vancouver. (The financial statement did not disclose that this amount was in US funds. When asked at questioning why he did not disclose this on his statement, John replied "I wasn't asked".)

[37] John was angered by the order, and said openly that he would have to return to Hong Kong. He had no job, property, or significant assets in Ontario, and no personal ties to the jurisdiction (other than his relationship to the children). Sheila moved for and obtained an ex parte order for John's arrest as an absconding debtor. John was arrested and released from custody upon undertaking to pay the accumulated arrears and to provide his passport to Sheila's solicitor for safekeeping.

[38] On April 25, 2014 John retained a lawyer, and the parties consented to a temporary order which preserved the balance of the monies in John's bank account in Vancouver, which stood at approximately US $1,420,000 (after payment of the then-current arrears). The order provided that John could legitimately access the funds "for his living expenses, to meet his prospective support obligations, and to make investments within TD bank as he has historically done".

[39] John's motion to change was delayed because of his change of solicitors. On December 4, 2014, the second case conference was held. John had paid no support between his release in April 2014 and that date, and he did not produce an updated financial statement, as required by the Rules.

[40] At the December 4th conference Justice Katarynych ordered extensive disclosure by John. That order was only partly complied with by February 2015.

[41] At the fifth case conference on December 10, 2015, Justice Scully ordered John to pay the outstanding costs orders in Hong Kong, totaling $53, 609.88, and to comply with the disclosure ordered in December 2014 before his motion to change could be heard.

[42] John then provided a letter from psychiatrist Dr. Jay Moss dated January 12, 2015. Dr. Moss noted that John had consulted with him four times in late 2014 and early January 2015 because of "significant emotional distress related to the courts and child support payments" as well as struggles with a search for employment. Dr. Moss reported that he would continue to offer John psychological support, but opined that the "most effective intervention" to help John would be an order reducing support payments.

[43] John never returned to see Dr. Moss after this letter was written.

[44] John paid the costs order and in February 2016 provided most of the disclosure ordered. However, one item of disclosure which Sheila's lawyer argues is critical has never been complied with. John was ordered to produce his "complete employment file" from HSBC. He has never done so. Counsel submits that the contents of that file would show what role John played in engineering his termination from HSBC.

[45] John's only attempt to obtain the file was an email he sent on December 12, 2015 (a year after the disclosure order) in which he wrote as follows:

"I am in a court case involving child support variation. The court has asked for my complete employment file. I just need someone to see something on HSBC letterhead in a PDF file that confirms that I worked there and my salary was x and I was terminated on Nov. 2011".

[46] There is no evidence as to what reply, if any, was made by HSBC.

[47] The disclosure finally furnished in February 2016 included records from John's trading account. The records revealed the following:

• Funds had been transferred back and forth between accounts in BC, Ontario, and the U.S.

• For a period funds were deposited into an account which was joint with John's sister in B.C.

• The account numbers on some records had been redacted by John.

[48] John admitted in his affidavits and in questioning that these actions had been taken to avoid enforcement of HK child support orders.

[49] The records also revealed that John earned significant income resulting from conversion of monies in his trading account from US dollars to Canadian dollars. As a result of these conversions John earned $17, 311 in April 2014 and $501, 790 in December 2015. John's view is that these gains do not represent income, and he did not declare them on his tax returns.

[50] Except for the arrears ordered paid by Justice Katarynych in April 2014, John paid no child support in any amount in the period November 2011 until June 2015. In June 2015, on his lawyer's advice, John began paying $1,000 monthly, sending cheques retroactive to January 2015. John says that the amount of $1,000 just "felt right" to him.

5. John's Job Search and Reported Income

[51] John's evidence is that he has looked for employment as an investment counselor since returning to Canada with little success. He presented evidence of what appears to be a diligent search for employment in banking and financial services since March 2012, when his severance pay from HSBC ended. Although John may have initially targeted positions with pay similar to that which he enjoyed in Hong Kong, by 2013 he appears to have reduced his expectations to seek what he describes as entry level positions in that field, paying $60-70,000 annually. John has retaken the Canadian securities course, but has no other professional qualifications.

[52] John's tax returns indicate no income for 2012, income of $12,995 in 2013, income of $16,313 in 2014 and income of $77,899 in 2015. The income in 2013 and 2014 came from positions John had in the financial sector. His income in 2015 of $77,899 came from a position at RBC from which he was terminated, and a position at Factset Canada. John was terminated from the Factset position in February 2016 on the grounds of redundancy.

[53] Records also revealed that John has made no trades or investments from his trading account from 2012 to date. The account does not earn interest. John says that he has structured the account in this way because he is risk-averse, and cannot afford to take chances investing what he regards as his retirement funds.

6. Alterman Report

[54] Ms. Alterman is the co-author of Carswell's Financial Principles of Family Law. She reviewed John's tax returns and account records, and prepared a report analyzing his income for the years 2012-2015 for Guideline purposes, following the principles set out by the Canadian Institute of Chartered Business Valuators. I found that Ms. Alterman is an expert in income analysis.

[55] Ms. Alterman opines that John's reported income should be adjusted in 3 respects to conform to the provisions of the Guidelines:

• Add notional investment income,

• Add realized foreign exchange gains, and

• Add income tax gross-up on foreign exchange gains.

[56] Ms. Alterman says that John's funds, held primarily in non-interest bearing cash accounts, have been underutilized to generate income. She sets out historical records of investment returns, and in her report projects returns on the lowest balance shown in John's accounts during this period ($1.4 million U.S.) calculated at interest rates of 2%, 4% and 6%. She uses the rate of 4% in her report, which adds the following income in Canadian funds to John's account for Guideline purposes.

• 2012 $55,978
• 2013 $57,674
• 2014 $61,852
• 2015 $71,607

[57] Ms. Alterman reports further that Canada Revenue Agency "considers that a taxpayer has made a gain or sustained a loss in a foreign currency when there is a transaction resulting in a gain or loss…..Transactions resulting in foreign exchange gains/losses include but are not limited to withdrawals and/or conversion of fund into another currency." She states that John's gains when funds were converted from US to Canadian funds should have been reported for tax purposes. If reported, these amounts would have been taxed as capital gains. Ms. Alterman says that the amount of those gains, $17,311 and $501,790, should be added to John's income for 2014 and 2015.

[58] Last, Ms. Alterman grosses up John's capital gains resulting from the foreign exchange gain in two respects: to adjust for the favorable tax treatment received by capital gains, as contemplated by the Guidelines, and with respect to the fact that the foreign exchange gains were unreported.

[59] Ms. Alterman's conclusions with respect to John's Guideline income for the years in question is set out below.

	2012	2013	2014	2015
Income per Income Tax return	1	12,995	16,313	77,899
Interest and other investment Income			183
Total Income	1	12,995	16,496	77,899
Potential Adjustments
Notional Investment Income at 4%	55,978	57,674	61,852	71,607
Realized gains on foreign exchange			17,311	501,790
Income tax gross-up on FX gain			4,341	246,222
Subtotal, rounded	55,978	57,674	83,504	819,619
Additional income tax gross-up if FX gain not reported				234,115
Adjusted Income, rounded	56,000	71,000	100,000	1,132,000

C. ANALYSIS

The questions I am required to answer in this case are as follows.

1. Has there been a material change in circumstances relevant to the issue of child support since the Own order of October 21, 2011? The onus is on John to establish that change.

2. If the answer is yes,

   i. What is the appropriate table amount of support payable by John?

   ii. Should John be ordered to contribute to the cost of the children's private schools, and, if so, in what amount?

   iii. Should the HK orders be changed retroactively?

3. What amount, if any, is owed by John for arrears?

4. Should John be ordered to provide security for future support payments? If so, what form should that security take?

1. Has There Been a Material Change?

[60] Section 37(2.1) of the FLA provides that a court may vary a child support order if it is satisfied that there has been a "change of circumstances within the meaning of the child support guidelines". Where a motion asks that the table amount of child support be changed, in most circumstances the moving party must show a change in the payor's income. Where a motion asks for a change in an order for special or extraordinary expenses, the relevant change can be a change in the payor's or recipient's "means" and the child's "needs and means".

[61] Long-standing caselaw establishes that to ground a change in a child support order, a change must be "material". "Material" means a change which "if known at the time, would likely have resulted in different terms" and a change "with some degree of continuity, and not merely a temporary set of circumstances".

[62] When a material change is established, the court may undertake a fresh assessment of the appropriate amount of child support pursuant to the Guidelines.

[63] In order to assess John's claim, I must determine his Guidelines income since his termination from HSBC.

2. What is John's Guideline Income?

[64] Line 150 of John's tax returns from 2012 to 2015 shows income substantially lower than the $298,266 he earned previously. Evidence about John's projected income for 2016 also indicates that he will earn employment income far below that 2011 benchmark figures. Should adjustments be made to this income pursuant to the principles in the Guidelines?

[65] Sheila argues that income should be imputed to John for several reasons. Section 19 of the guidelines sets out a non-inclusive list of circumstances that may justify an imputation of income.

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[66] The onus is on the party seeking to impute income. The Ontario Court of Appeal has held that when a court finds that income should be imputed to a payor, there must be evidence to justify the amount of income imputed.

a. Should Income Be Imputed Because of Intentional Unemployment and Failure to Disclose?

[67] Sheila relies on section 19(a) and (f) of the Guidelines in saying that I should impute income to John because his termination of employment with HSBC was intentional and because he failed to produced critical disclosure with respect to this issue. John concedes that income should be imputed to him, although he does not agree with the reasons put forward by Sheila for an imputation.

[68] The parties disagree on the amount to be imputed. Sheila's factum said that I should impute income to John for 2012 and 2013 commensurate with his income in 2011. In oral argument, counsel submitted that this figure should be imputed to John only for 2012.

[69] In making his argument, Sheila's lawyer points to the following facts.

• John was very angry after the Own order.

• John admits that he did not tell the bank about the attachment order.

• John's termination took place only 20 days after that order.

• John acknowledged that he had no reason to think his job in jeopardy prior to the termination.

• John told Sheila that he was so depressed that he "actually thanked" HSBC for his termination.

• John did not apply for a change in the HK orders after his termination, despite what he says was an unexpected and catastrophic loss of income.

• Rather, John appealed the Own order. He then left the jurisdiction and moved beyond the reach of the HK court. He failed to appear at the hearing of the appeal.

• Despite an order that he produce his employment file from HSBC, John failed to make any real effort to obtain the file.

[70] Counsel submits that behind John's persistent refusal to obtain and disclose his HSBC employment file is the knowledge that disclosure would reveal that John requested or facilitated his termination.

[71] John points out that the HSBC job in 2011 paid him more than he had ever earned. John says it is ludicrous to believe he would give up that job because he was angry at the Own order.

[72] I can imagine a case in which a payor with a history of angry, impulsive behavior might, if angry with a former spouse, act in revenge and against his own financial interest. If the evidence indicated that John had a record of behavior of this type, I might accept that John would quit a plum job just to punish Sheila. Evidence of that type has not been presented.

[73] I understand why the facts set out above make Sheila suspicious of the circumstances of John's loss of employment. Those circumstances will be considered if and when I turn to consideration of John's request for retroactive relief. They are not sufficient, however, for me to infer that John voluntarily terminated his employment with HSBC.

[74] Accepting all the facts Sheila's lawyer alleges in support of his argument, I do not agree that a rational, non-speculative inference available to me is that John caused his own unemployment. My reasons for rejecting this argument are set out below.

• John was 46 years old at the time of his termination. He was aware of the precarious nature of employment in his field and limited prospects he might have for further employment at the level he enjoyed at HSBC.

• John was earning more than he had ever earned. Although the effect of the HK order was that approximately 30% of this income would be devoted to support, he would retain the balance of that income for his own use. Further, his child support obligation would be time-limited.

• I considered carefully the inference to be drawn from John's failure to make real efforts to produce the HSBC employment file. Reviewing the history of this matter, I find that the explanation could be that John is simply arrogant and impatient with requests for disclosure. John was self-represented during most of the case. He was impatient and dismissive of the extensive disclosure requests made by Sheila. He appears to believe that this is a simple matter that should have been concluded as soon as he produced the agreement showing that he was terminated by HSBC.

• I also question why, if in fact John asked to be terminated, the bank would voluntarily pay him severance beyond what was legally required by statute, (as noted in the agreement).

[75] Although I do not find that John is intentionally unemployed, I do find that income should be imputed to him for failure to disclose, in that he did not make real efforts to obtain his HSBC employment file.

[76] John's position is that income of $67, 500 annually should be imputed to him, a figure that he says represents entry level income in the investment business and which reflects his ability to work. This income accords with the level of income offered in the positions he has obtained since returning to Canada.

[77] I find that annual employment income of $67, 500 should be imputed to John for 2012 and all years following (except for 2015, in which his employment income exceeded this amount).

b. Should Income Be Imputed Because of Failure to Utilize Assets to Generate Income?

[78] John for the most part has kept his capital in a non-interest bearing account for the almost 5 years since his loss of employment. He says he avoids any risk of loss because he is 51 years old, has had little success in seeking employment, and has no pension. His capital is his pension.

[79] Given his circumstances, I find John's desire to avoid risk reasonable. I do not find it reasonable to decline any effort to earn income on his substantial capital when he has children to support.

[80] Ms. Alterman, in providing a range of possible notional investment income, noted the "low interest rates and volatility of the stock markets in recent years". She gave no opinion as to what rate of return a cautious or very cautious investor might earn currently. In Greenglass v. Greenglass the Ontario Court of Appeal held that when asked to determine a rate of return for the purpose of imputing investment income available for support, a court should look at what is "a reasonable rate a prudent investor might be able to earn at the relevant time". In that case, heard in 2010, the court applied a 2% rate of return to both the payor and support recipient.

[81] Ms. Alterman's report establishes that a return rate of 2% is available from investments with little or no risk. That is the rate of return which I shall impute to John.

[82] Thus, the following amounts should be added to John's income.

	2012	2013	2014	2015
	$27,989	$28,837	$30,926	$35,804

c. Should Income Be Imputed Because of John's Gains in Foreign Exchange Conversions, Which Are Undeclared and Untaxed Income?

[83] John does not accept that his foreign exchange gains are capital gains which constitute Guideline income. Sheila says that they are the Guideline income, and that I should average those gains over three years, 2013-2015.

[84] I accept Ms. Alterman's evidence that John's gains as a result of foreign exchange conversions are income properly reportable to CRA as capital gains. As such, they are prima facie income available for support pursuant to section 16 of the Guidelines.

[85] However, pursuant to s. 17 of the Guidelines the court has discretion to exclude all or part of a non-recurring amount in the calculation of income. Sections 16 and 17 are set out below.

Calculation of annual income

16. Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III

Pattern of income

17. (1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Non-recurring losses

(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse's annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

Should Capital Gains Be Excluded from Income?

[86] John's foreign exchange gains constitute non-recurring amounts. Based on the evidence there is no reason to think that John will enjoy substantial income from foreign exchange gains on a regular basis. The smaller gain made in 2014 was the result of John's withdrawing money from his $US dollar brokerage account to comply with Justice Katarynych's order to pay arrears. The larger gain in 2015 was the result of John's taking timely advantage of the growing difference in the value of US versus Canadian currency. His savings are now in Canadian dollars. I see no reason to anticipate that John will enjoy this type of gain in the future. I see no reason to think that John will enter the market to attempt to make income by investing his savings in anything more than no-risk products. He has not traded on the market in almost 5 years.

[87] Should these gains be excluded from John's Guideline income because they are non-recurring?

[88] I agree with Justice Craig Perkins, who held in Fung v. Lin that "a party who wishes the court under s. 17 to exclude a 'non-recurring payment' has the burden of persuading the court that, 'the determination of a spouse's annual income under section 16 would not be the fairest determination of that income'".

[89] Many courts follow the principle that children should benefit from sudden increases in a payor's income, and include non-recurring amounts in Guideline income.

[90] In Ewing v. Ewing 2009 ABCA 227, the Alberta Court of Appeal set out a non-inclusive list of factors which can be helpful in determining whether to include a non-recurring amount in Guideline income.

• Is the non-recurring gain or fluctuation actually in the nature of a bonus or other incentive payment akin to income for work done for that year?

• Is the non-recurring gain a sale of assets that formed the basis of the payor's income?

• Will the capital generated from a sale provide a source of income for the future?

• Are the non-recurring gains received at an age when they constitute the payor's retirement fund, or partial retirement fund, such that it may not be fair to consider the whole amount, or any of it, as income for child support purposes?

• Is the payor in the business of buying and selling capital assets year after year such that those amounts, while the sale of capital, are in actuality more in the nature of income?

• Is inclusion of the amount necessary to provide proper child support in all the circumstances?

• Is the increase in income due to the sale of assets which have already been divided between the spouses, so that including them as income might be akin to redistributing what has already been shared?

• Did the non-recurring gain even generate cash, or was it merely the result of a restructuring of capital for tax or other legitimate business reasons?

• Does the inclusion of the amount result in wealth distribution as opposed to proper support for the children?

[91] Caselaw indicates that when a non-recurring amount, such as a capital gain or RRSP withdrawal, is generated for a "legitimate specific "business purpose (e.g., expansion of a business or the funding of business litigation) and is not available to the payor to fund his lifestyle, then it may be excluded from income.

[92] In Fung v. Lin Justice Perkins considered the situation of a payor who had enjoyed two huge capital gains resulting from the sale of his business, followed by a year of much more modest income as he set up his new company. Justice Perkins noted that the payor had chosen not to attempt to generate any investment income from his capital, and that he was drawing on that capital to finance his lifestyle. Justice Perkins asked "Why is it unfair?" to take these capital gains into account when determining the payor's income for support purposes. He found that it was appropriate to include those capital gains in income, using a 3-year average.

[93] It is important to note that if I do decide that John's capital gains be included in his Guideline income for 2013-2015, I do not intend to rely on that figure to determine future income. That would not be a fair approach, as the evidence does not indicate that John is earning income at a similar level this year, or that he will earn such income in the foreseeable future. What turns on my determination with respect to these capital gains is whether John owes Sheila further support for this period, or whether Sheila will be required to pay John for any overpayment made as a result of garnishments.

[94] I have decided that John's capital gains should be taken into account in determining his income for the years 2013-2015 for the following reasons.

• The capital gains achieved are a source of income for John. John has testified that he is drawing on capital to support himself.

• The major gain was not generated for some "legitimate, specific" business purpose. It is available for support.

• Inclusion of the gain in John's Guideline income does not lead to a wealth transfer, but a reimbursement of Sheila for monies already spent on the children.

• John earned relatively little income from employment and almost none from investments during the period in question.

Gross-up of the Capital Gain

[95] I accept Ms. Alterman's conclusions that the amounts of the capital gains must be grossed up for two reasons.

• A significant portion of John's income in 2014 and 2015 was earned from capital gains, which are taxed at a lower rate than employment income.

• John's capital gains in 2014 and 2015 were not taxed, because he did not report them. Courts have held that in such circumstances, the undeclared income should be grossed-up to reflect the income which would have to be earned for a payor to enjoy that amount after tax. The Guidelines aim to give consistent treatment to payors who enjoy untaxed income and those who pay tax.

[96] The result of Ms. Alterman's analysis is that John's income for 2014 should be increased by $21,652 and John's income for 2015 should be increased by $982,127. The income resulting, viewed year-by-year, is set out below.

[97] With respect to the years 2012-2014, John's actual employment income should be replaced by the amount which John concedes should be imputed, $67,500. For 2015, John's actual employment income is used, as it exceeds the imputed amount.

	2012	2013	2014	2015
Employment Income (imputed for 2012-2014)	67,500	67,500	67,500	77,899
Adjustments:
Notional Investment income @ 2%	27,989	28,837	30,926	38,804
Realized gains on foreign exchange			17,311	501,790
Income tax gross-up on FX gain			4,341	246,222
Subtotal	95,489	96,337	119,448	864,715
Additional income tax gross-up if FX gain not reported				234,115
Adjusted Income, rounded	95,480	96,337	119,448	1,098,830

d. Conclusion: John's Guideline Income

[98] Sheila's lawyer submits that the court should not view income for the years 2013-2015 individually, but should, relying on s. 17 of the Guidelines, average income over those years. He says that this approach represents the fairest way to calculate income for that period. I agree. Viewed retrospectively, from the perspective of December 31, 2015 when John enjoyed the huge foreign exchange gain, an average of $438,205 was available for his use over that 3 year period. John had control of his capital and could have triggered a conversion at any time.

[99] When John's income for 2013-2015 is averaged, his annual the Guideline income is $438,205.

[100] I find therefore that John's income for Guideline purposes the year 2012 was $95,489 and his income for 2013 to 2015 was $438,205 per year.

[101] With respect to John's current income for 2016, Sheila's counsel argues that for this year it should be the same as income for 2015, saying that this is what s. 16 of the Guidelines mandates. I have already explained above why in my view John's 2015 income was a non-recurring amount which is not a fair prediction of his current or future income. Pursuant to s. 17, I find that the appropriate income to use for the calculation of John's support obligation for 2016 and on an ongoing basis is income reflecting imputed annual employment income of $67,500 and notional investment income of 2% (based on the 2015 figure) of $38,804, totaling $106,804 per year.

3. Material Change—Conclusion

[102] If Sheila's submission is that to succeed on his motion, John is required to demonstrate that his reduction in income must continue throughout 2015, I do not agree. There is nothing in the caselaw that supports that submission. John is required to demonstrate that his reduction in income is not "temporary", not that it has persisted for years until this hearing. If the evidence before HK court in 2011 had been that John's annual income was under $100,000 Canadian, as it was in 2012, the support award would have been far lower.

[103] John's termination by HSBC and his continued unemployment for a significant period following that termination constitutes a material change in circumstances that warrant a variation of the HK orders. His income—taking into account imputed income of $67,500 and notional interest income—decreased sharply in 2012 from $300,000 per year he earned at HSBC. The decrease was not temporary. It continued throughout 2013 and 2014, and is adjusted only retrospectively based on the huge gain in 2015.

4. Is John Entitled to a Retroactive Variation of His Support Obligation?

[104] Sheila submits as a preliminary issue that John is not entitled to request a retroactive variation of his support obligation, given Justice Katarynych's order of April 2014 providing that he pay outstanding arrears as a condition of allowing his motion to change to proceed. In essence, counsel says that the issue is res judicata.

[105] I do not accept that argument. In April 2014 John was not requesting a retroactive variation. That request was only made in the amended motion to change filed in April 2016. Justice Katarynych did not conduct a hearing on the merits in April 2014. Her order is simply a reflection of the clean hands principle under which a court may, if a litigant willfully refuses to comply with an order of support, order that he bring himself into compliance with a support order before he is granted audience to request relief.

[106] I turn to a consideration of the motion on its merits.

a. The Law—Requests for a Retroactive Decrease

[107] The Ontario Court of Appeal in Gray v. Rizzi, 2016 ONCA 152, held that the factors set out by the Supreme Court of Canada that apply to motions seeking retroactive increases in child support apply, with minor modifications, to motions seeking retroactive decreases in child support. In setting out the appropriate principles to be applied on such motions, the court quoted extensively from Justice Deborah Chappel in Corcios v. Burgos.

[108] Justice Chappel began her analysis by noting as follows.

First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

[109] Justice Chappel stated that when "a payor demonstrates that a change in circumstances took place during the time that arrears were accumulated which rendered the payor unable to make support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears".

[110] Speaking for the Court of Appeal, Justice Brown set out the factors which should guide in a court in determining whether to grant retroactive relief, the date of retroactivity and the amount of the relief.

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

   [I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[111] Justice Brown went on to say:

61 If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

62 Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.

63 This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor's financial situation. A payor's failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

b. Application of These Principles to the Present Case

[112] John advised Sheila by an email in late November 2011 that he was terminated by HSBC. His email comments on what he sees as dismal employment prospects in the future. He did not ask for a change in the support order. There is no evidence that John forwarded to Sheila any material (such as his severance agreement and the letter from HSBC confirming that he was dismissed for redundancy) that would have allowed her to "assess in a meaningful way" whether the support order should be changed before he commenced this motion in December 2013. Although John prepared an ISOA application in Vancouver in 2012 requesting a reduction, this was never served on Sheila.

[113] I find that in this case, the date of effective notice is the same as the date of formal notice, December 18, 2013. John's decrease in income after his termination is such that if he had commenced his motion to change in a timely fashion and made proper and timely disclosure, I accept that a substantial decrease would have been ordered commencing sometime in 2012.

[114] I turn to the relevant factors in determining whether a decrease should be ordered retroactively.

[115] Reason for the delay in commencing the application. John does not advance the reasons that often excuse substantial delay, such as lack of resources to hire a lawyer or poor health. John's progress with his motion was delayed for years because he did not get proper legal assistance and did not do what was required to pursue the motion. Despite John's substantial savings, he was unwilling to spend the money required to effectively pursue a variation. He did not attend the appeal of the last HK order because he didn't want to spend the money to return from Vancouver. In his materials, he also says that he did not trust the court, which "soaks expats". He did not hire a Vancouver lawyer to act on a variation application in B.C. He did not retain a Toronto lawyer to prepare his application in Ontario.

[116] Conduct of the payor. John has made no voluntary payments towards arrears. Arrears and outstanding costs orders have been paid by virtue of court orders or garnishments. John has not cooperated with support enforcement. He has played a shell game, transferring money from account to account and at one point transferring monies into a joint account with his sister, and in earlier financial disclosure, redacting account numbers, all to avoid enforcement.

[117] Further, since John commenced his motion to change, he has delayed in making required and ordered disclosure for over 2 years. As noted above, he never furnished important disclosure (his HSBC employment file) that could have quickly resolved the issue of whether he precipitated his own termination.

[118] Ability to pay arrears. John has substantial resources that have in fact been paid out pursuant to the court order of April 22, 2014 to pay the arrears which accumulated prior to the commencement of the application.

[119] Ongoing needs of the children. During the period under consideration and on an ongoing basis, both L. and S. needed support.

[120] Hardship to the recipient. A retroactive variation order would require Sheila to pay John over $160,000. The HK orders were not stayed or varied on a temporary basis; John did not move for this relief. Sheila was entitled to rely on the HK orders in planning her expenditures for the children. She advanced funds, including funds for school fees, in 2012 and 2013, before John decided to amend his claim to request retroactive relief.

[121] Despite the significant decrease in John's income for 2012 and 2013, the factors noted above weigh against a retroactive order. I dismiss John's claim for a retroactive change in the HK orders. Consideration of what change should be made in the HK order shall start from January 1, 2014.

5. Conclusion—Appropriate Order for Support, Table Amount

[122] The presumption under the Guidelines is that the table amount of support applies in all cases, including those in which the payor's annual income exceeds $150,000. The onus is on a party who wishes to deviate from the table amount.

[123] There is no evidence before me to establish that the table amount related to John's Guideline income for 2014 and 2015 of $438,205 is "inappropriate" as contemplated by s. 4(b) of the Guidelines. Based on that income, I find that the table amount of support payable by John for 2014 and 2015 is $5,297 monthly.

[124] Commencing January 1, 2016 and on the first day of each month following, I order that John shall pay support in a table amount of $1,493 monthly based on his Guideline income of $106, 304 per year. This figure is, of course, subject to a material change in circumstances. In that regard, I order that John shall advise Sheila forthwith of any employment or self-employment undertaken by him.

[125] John will receive credit for all amounts previously paid.

6. Conclusion—Appropriate Order for Support, Special and Extraordinary Expenses

[126] The school fees to which Sheila asks John to contribute now total about $30,000 annually per child. Although John's Guidelines income for 2014 and 2015 represents approximately 80% of their joint incomes, she asks that John be ordered to contribute 70% of those costs, from 2014 and on an ongoing basis.

[127] Sheila's claim is made pursuant to S. 7 of the Guidelines for extraordinary expenses.

SECTION 7

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1)(d) and (f), "extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[128] With respect to the children's school costs for 2014 and 2015, I agree that John should contribute to 70% of these costs, as requested by Sheila, for the following reasons.

• The expenses are "necessary", in that they are in the children's best interests. The children are doing well in their schools, which they have attended since 2011. Prior to 2011, with the agreement of both parents, they attended private schools in Hong Kong. For these children, the school is not just an academic institution but the center of their social lives. Other courts have recognized that when children have attended private school throughout their lives, that remaining in such a school can provide them with stability and that maintenance of the status quo is in the children's interests.

• The expenses are "reasonable" given the Guideline incomes of both parties for the years in question, which exceeded $500,000 per year.

• The expenses are "extraordinary", taking into account Sheila's income of $94,464 last year, and the $5,297 monthly for table support that John has been ordered to pay. It would not be expected that Sheila could pay for the children's school costs out of the table support received. Sheila's most recent financial statement which shows her current expenses for herself and the children, including the children's school fees, of $203, 902.

[129] For the years 2014 and 2015, I order that John pay 70% of the children's school fees of $30,000 each annually, with credit for amounts paid. Thus, John will pay $42,000 for each year ($60,000 x .70= $42,000), which amounts to $3,500 monthly.

[130] The result of this order for 2014 and 2015 is that John will pay a total support of $8,797 monthly, slightly more in child support than what was provided for in the HK orders ($8141 monthly).

[131] In considering Sheila's request that John continue to pay 70% of the children's school fees for 2016 and on an ongoing basis, I decline to make that order. John and Sheila's Guideline incomes now total approximately $200,000. I do not find a total expense of $60,000 per year "reasonable" given their incomes and other expenses. Although the family before separation paid private school tuitions, the cost was much lower than the current cost and was heavily subsidized by virtue of Sheila's position as a teacher. The family's annual income was much higher—approximately $400,000. If I make the order that Sheila seeks, John would expend more than 70% of his income on child support ($2880/mo. in table support and $3,500/mo. for school fees).

[132] Sheila asked that I consider John's savings in deciding whether to make the order she requests. She points out that s. 7 of the Guidelines refers not just to income but to "the means" of the spouses and the child in considering the reasonableness of the expense. I agree that there are some cases in which a court may reasonably require a parent to utilize capital to fund a child's school expenses. Sheila's lawyer referred me to an unreported case in which a court ordered an unemployed parent to use a portion of his share of the proceeds of sale from the matrimonial home to pay tuition for his special needs child to attend a school, a school which the parents had agreed he should attend and in which the child wished to continue.

[133] Given John's current circumstances, I do not think it is reasonable to expect him to draw on capital to pay private school fees. Although he has significant savings, he is 51 years old. Despite his concession that he is capable of earning $67, 500 per year, he is unemployed. He has no pension. His savings serve to supplement his income and represent his retirement fund.

7. Accounting

[134] I ask each party to serve and file within 20 days his/her submissions as to the results of the orders I have made above with respect to further monies owing by John to Sheila or Sheila to John.

8. Security for Support

[135] The factors which might justify a court to order security for payment of support were reviewed by Justice Mazza in Singh v. Singh.

• where a party has a history of dissipation of assets, that is, unable to handle money.

• where the respondent is likely to leave the jurisdiction and become, in effect, an absconding debtor.

• where the respondent has, in the past, refused to honour a support obligation, whether it came by court order or contract or has refused to provide support at all.

• where the party has a poor employment history, or has indicated that he or she, will leave their employment.

[136] John has a dismal record with respect to compliance with support orders.

• Soon after the first HK order of January 21, 2010, he began to arbitrarily reduce the amount paid.

• He completely failed to comply with the second HK order, made October 21, 2011.

• He made no support payments for almost 3 years, from November 2011 to June 2015.

• In June 2015, he continued not to comply with the HK orders, only beginning to pay the amount which he arbitrarily decided was fair.

• At all times John had sufficient funds to comply with the orders.

• John has failed to cooperate with efforts to enforce support orders. He has transferred accounts from jurisdiction to jurisdiction, deposited monies jointly with his sister, and redacted bank records when ordered to disclose, all in aid of thwarting enforcement.

[137] John also has few ties to Ontario.

[138] Sheila has good reason to ask that the court provide some security for child support, and I am prepared to make such an order pursuant to s. 41 of the Family Responsibility and Support Enforcement Arrears Act.

[139] Sheila's lawyer asked for security of $250,000, and suggested that it could be paid to the Accountant of the court, with monthly payments to be made to Sheila. I have ordered ongoing support in an amount lower than that requested by Sheila and have not ordered that John contribute towards private school fees on an ongoing basis. Thus, a review of the amount of security which is appropriate should be done.

[140] John and Sheila's lawyer should contact the court to arrange a brief appearance before me to address this issue.

i. Costs

[141] If costs are sought, the party seeking costs shall serve and file written submissions of no more than 10 pages in length, with any offers to settle attached, within 20 days; any response shall by way of written submissions of no more than 10 pages in length, to be served and filed within the 15 days following that 20 day period.

[142] Released: October 11, 2016

Signed: Justice E. B. Murray