Court File and Parties
COURT FILE NO.: FS-12-18256 DATE: 2017-02-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PRUDENCE PERSAUD GONSALVES Applicant – and – STEVEN SCRYMGEOUR Respondent
Counsel: Elliot Birnboim and Faye Yao, for the Applicant Avra Rosen, for the Respondent
HEARD: February 9, 2017
Judgment on Support Issues
GLUSTEIN J.:
BACKGROUND
[1] On October 27, 2016, I released my reasons for judgment on property and income issues (the “Reasons”).
[2] As I set out in paragraph 7 of my Reasons, counsel advised the court at the initial hearing that the issue of spousal support could only be determined after the court made a finding of (i) the appropriate relief (if any) under the joint family venture claim, and (ii) the imputed income for both Gonsalves and Scrymgeour. [1]
[3] Further to paragraph 343 of my Reasons, I held a case conference on December 7, 2016 to address the process for the support issues and costs.
[4] I then received and reviewed the parties’ written support submissions. At my request, counsel scheduled a hearing to address support issues. I also provided counsel with a list of questions arising from their written submissions so that those issues could be fully canvassed either by further written submissions (which counsel chose not to provide) or at the hearing.
[5] The hearing on support issues took place on February 9, 2017.
ISSUES RAISED AT THIS SUPPORT HEARING
[6] As per paragraph 8 of my Reasons, both counsel agreed at the hearing on property and income issues that (i) Scrymgeour was required to pay retroactive spousal support to Gonsalves from March 2013, and (ii) Scrymgeour was required to pay retroactive child support to Gonsalves from September 2015.
[7] Both parties acknowledge that any retroactive payments for spousal and child support ordered against Scrymgeour must be “netted” against (i) payments by Scrymgeour pursuant to the order of Justice Stewart dated August 18, 2015 (the “Stewart Order”), in which Scrymgeour was ordered to pay $3,000 per month on an unallocated and without prejudice basis effective July 1, 2015, (ii) child support payable by Gonsalves to Scrymgeour from March 2013 to August 2015, and (iii) child support paid by Scrymgeour to Gonsalves from March 2013 to June 2013.
Issues related to child support
[8] As for child support, the only issues relate to the retroactive income calculations. Those issues are:
(i) determining the appropriate 2015 income for Scrymgeour, and (ii) determining the appropriate income for Scrymgeour from January 2016 to October 2016.
[9] Both of the income issues affecting retroactive child support also arise with respect to spousal support. I address those issues as part of my spousal support analysis below, commenting briefly about the corresponding effect those income determinations have on retroactive child support.
[10] There is no dispute as to child support owing from the date of the Reasons, as it is based on Scrymgeour’s imputed income of $150,000. That table amount is $1,263 per month.
Issues relating to spousal support
[11] With respect to spousal support, both counsel submitted that the ranges set by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (the “SSAG”) (as set out in the DivorceMate calculations) were appropriate. Neither party sought an order for spousal support outside the ranges.
[12] Income is imputed on an ongoing basis at $150,000 for Scrymgeour and $40,000 for Gonsalves (see paragraphs 311 and 339 of my Reasons). Consequently, the issues relating to ongoing spousal support [2] are:
(i) Where in the SSAG range should the court fix spousal support? (ii) What is the appropriate duration of the spousal support order?
[13] The issues relating to retroactive spousal support payable by Scrymgeour to Gonsalves from March 2013 are more complicated. I summarize them as follows:
(i) What is the appropriate income for Scrymgeour for the years 2013 to 2015? [3] (ii) What is the appropriate income for Scrymgeour from January 2016 until the date of the Reasons? [4] (iii) Should there be a deduction for child support when Scott resided with Scrymgeour between March 2013 and December 2013? [5] (iv) What is the appropriate quantum for retroactive spousal support (i.e where in the range should retroactive spousal support be fixed)? (v) Should amounts payable by Scrymgeour for retroactive spousal support from March 2013 to December 2015 be adjusted since Scrymgeour cannot claim a tax deduction for spousal support during those periods?
ANALYSIS
Issues relevant to ongoing spousal support
[14] In the recent decision of Wharry v. Wharry, 2016 ONCA 930 (“Wharry”), Pardu J.A. set out the law that a court must consider both amount and duration under the SSAG. Pardu J.A. adopted the comments of the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 at para. 109 that “[a]mount and duration are interrelated parts of the formula – they are a package deal” (Wharry, at para. 86).
[15] I consider the relevant factors for duration below. I address the relevance of my findings on duration in my conclusion on the issue of ongoing spousal support.
Issue 1: Where in the SSAG range should the court fix ongoing spousal support?
a) Position of the parties
[16] Gonsalves submits that spousal support should be ordered at the high end of the SSAG range while Scrymgeour submits that it should be at the low end of the SSAG range.
[17] Gonsalves submits that the requirement to consider “needs and means” under the SSAG includes legal fees payable by Gonsalves to her counsel. Scrymgeour submits that outstanding legal fees should not be considered as the court has not addressed the issue of costs of the action.
[18] Gonsalves submits that the “property division” factor under the SSAG should take into account Scrymgeour’s appeal from the Reasons. Scrymgeour submits that the appeal is not relevant to this consideration.
[19] Gonsalves further submits that the length of cohabitation is 20 years and supports an order at the high end of the range. Scrymgeour submits that the length of cohabitation is 16 years and does not support a high range quantum.
b) Analysis
[20] On this issue, I consider the factors relevant to “choosing location within the range” summarized by Carol Rogerson and Rollie Thompson in the Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 (Ottawa: Department of Justice Canada, April 2016) (the “Revised User’s Guide”), at pp. 45-46. Those factors are (i) the strength of any compensatory claim, (ii) the recipient’s needs [6], (iii) the needs and ability to pay of the payor, (iv) work incentives for the payor, (v) property division and debts, and (vi) self-sufficiency incentives.
[21] I review each of these factors below, as well as the length of cohabitation.
1. Strength of compensatory claim
[22] There is a compensatory element to Gonsalves’ support claim.
[23] In my Reasons, I found that (i) Gonsalves took a maternity leave for each of the children; (ii) Gonsalves worked part-time after the birth of their second child; (iii) Scrymgeour worked long hours, attempted to build his career and saved assets as a result of Gonsalves’ efforts at home; (iv) Gonsalves contributed $400 monthly to Scrymgeour; (v) Gonsalves was financially dependent on Scrymgeour; and (vi) Gonsalves was the primary parent from 1991-99, performing the household activities, attending medical appointments, and purchasing clothes during those years (see paras. 47, 48, 149 and 170 of the Reasons).
[24] Consequently, I agree with Gonsalves’ submission that Gonsalves “made economic decisions throughout this relationship which were predicated upon [the] relationship continuing”.
[25] A compensatory and needs based claim can result in an award at the high end of the SSAG ranges (Gray v. Gray, 2014 ONCA 659, at para. 50).
[26] However, the strength of the compensatory claim in the present case must be assessed relative to cases relied upon by Gonsalves in which a high range was awarded for compensatory reasons. The evidence in the present case does not demonstrate that Gonsalves sacrificed her career to the same extent.
[27] Gonsalves maintained her part-time status as a bank teller throughout the cohabitation and was offered to return on a full-time basis. She continues to have that opportunity as she acknowledged at trial.
[28] Consequently, while there is a compensatory element to Gonsalves’ support claim, it is not as strong as in other cases and in my view, would support mid-range SSAG spousal support.
2. Gonsalves’ needs and lifestyle during and following cohabitation
[29] In Marinangeli v. Marinangeli (“Marinangeli”), the court set out the principle that the support recipient shall receive a level of support that would “allow her to maintain the standard of living to which she was accustomed at the time the cohabitation ceased” (Marinangeli, at para. 74).
[30] I agree with Gonsalves’ submission that the SSAG set predictable levels of support based upon income, rather than require a micro-analysis of budgets.
[31] I also agree with Gonsalves that it is not appropriate to calculate spousal support under the SSAG by simply ensuring that the amount of support ordered equals the budget of the recipient. I note the comment of Rogerson and Thompson in the Revised User’s Guide at p. 45 that budgets may be less important in “with child support” formula cases.
[32] On the other hand, the needs of the parties must be considered in light of the parties’ standard of living during cohabitation.
[33] In the present case, the family’s lifestyle was not lavish. Their expenditures were modest throughout their cohabitation. They did not travel extensively, go out for expensive meals, put the children in private schools, or send the children to overnight camps. Gonsalves acknowledged on cross-examination that her financial statement sworn August 29, 2012 represented an accurate budget for her and her three children, who were residing with her at the Allenwood Property.
[34] However, the August 29, 2012 budget is not determinative of Gonsalves’ needs. It fails to consider that as part of her lifestyle, she was living in the Allenwood Property and was able to accumulate modest savings during cohabitation and to be invested in real estate. As I found in my Reasons, Gonsalves participated in a joint family venture based on factors including Scrymgeour’s repeated representations to Gonsalves that she was a joint owner of the Allenwood Property.
[35] Also, the August 29, 2012 budget relied upon by Scrymgeour did not account for housing expenses because Gonsalves was residing in the Allenwood Property at that time. Consequently, a proper budget would consider housing and utility expenses.
[36] Gonsalves submits that her need should take into account legal fees she owes to her counsel. Scrymgeour submits that the issue of costs has not been determined by the court and should be addressed on costs submissions.
[37] In my written questions to counsel prior to the hearing on support issues, I asked counsel for any authority addressing the submissions concerning outstanding legal fees. No case law was provided on this issue.
[38] Any amounts owed by Gonsalves for legal fees are undetermined. Gonsalves listed her debt to her counsel as “TBD” on her last financial statement sworn April 3, 2016.
[39] Given the lack of evidence on this issue, it is not necessary for me to consider whether a court can consider legal fees owed by a recipient of spousal support as a factor under the “needs” test, particularly if the court has yet to determine costs. Since it is not possible to determine what amount Gonsalves owes to her counsel, I do not consider this unknown amount of debt in my assessment of need.
[40] For the above reasons, this factor supports a mid-range SSAG assessment.
3. Needs and ability to pay of the payor
[41] Scrymgeour has the ability to pay support based on his imputed income. If he chooses not to pursue employment which would generate the income imputed in my Reasons, he cannot submit that a low range of support is appropriate as a result of his choice.
[42] Gonsalves submits that my determination of Scrymgeour’s ability to pay should include funds he received from his inheritance from his father or Scrymgeour’s interest in GHL. I do not agree.
[43] Gonsalves submits that “the test for where in the range a spousal support order falls (a mandatory discretionary consideration) in relation to one’s diverted assets bears a lower threshold than one for the imputation of income” [Italics in original]. Gonsalves provides no legal authority for that submission.
[44] In my Reasons, I did not accept Gonsalves’ submission that funds from Scrymgeour’s inheritance from his father or his interest in GHL were to be included for income purposes. At paragraphs 325 to 338 of my Reasons, I found that the donated funds and his GHL interest were to be excluded based on the applicable facts and law.
[45] Consequently, on the facts of this case, the funds used by Scrymgeour for charitable purposes, or any potential value from the sale of GHL, should not be brought back into the analysis of the “means” of a payor to be redistributed for support when there has already been a finding that those funds should not be included as income.
[46] While I accept that Scrymgeour has the means to pay spousal support based on his imputed income, I do not take his inheritance or interest in GHL into account.
[47] Scrymgeour has reasonable means to pay spousal support. However, I do not accept that he has a “high” ability to pay since I reject Gonsalves’ attempt to re-introduce the issue of charitable donations and Scrymgeour’s interest in GHL.
[48] Consequently, this factor supports a mid-range SSAG assessment.
4. Work incentives for the payor
[49] I agree with Gonsalves’ submission that “given the imputation of income to [Scrymgeour]”, this is not a factor in the present case.
[50] At paragraph 320 of my Reasons, I found that “Scrymgeour could seek and obtain full-time work as a bookkeeper. He has significant financial and consulting experience with varied businesses. At an hourly rate of $50 per hour, and based on a weekly salary of $2,000, I impute his employment income at $98,000 per year based on a 49-week work year.”
[51] On that basis, I do not consider work incentives for the payor as a factor.
5. Property division and debts
[52] Section 33(8) of the Family Law Act, RSO 1990, c. F.3 directs the court to consider whether any financial hardship has been relieved “by orders under Parts I (Family Property) and II (Matrimonial Home)”.
[53] In Cloutier v. Francis, 2011 ONSC 5550 (“Cloutier”), de Sousa J. found in favour of a spouse’s unjust enrichment claim in a common-law relationship. De Sousa J. held (Cloutier, at para. 261):
Paragraph 37(7) (d) of the Family Law Act directs the court when it is considering the question of spousal support to the question of whether any financial hardship has not been relieved "by orders under the property division sections of the Act, Parts I and II." Strictly speaking Ms. Francis has not received the benefit of any orders under Parts I (Family Property) and II (Matrimonial Home). Clearly, however, because the court must consider all of the needs, means and circumstances of both parties, the unjust enrichment monetary award granted to Ms. Francis in this judgment must be considered as available to her. [Emphasis added]
[54] In my Reasons, I ordered Scrymgeour to pay Gonsalves $595,530, on the basis of her joint family venture claim.
[55] Gonsalves submits that the court should not consider the joint family venture award since Scrymgeour has appealed the decision. I do not agree.
[56] The issue of support is always determined at trial based on underlying decisions (e.g. imputed income, equalization payments, or property or business valuations) which may be appealed. If the court makes a finding of spousal support, then that decision is based on the underlying conclusions, regardless of whether any such underlying conclusion may be appealed.
[57] In the present case, when I consider the location within the SSAG range, I consider the effect of the property award I made in favour of Gonsalves. It affects her needs and is a relevant factor in this case.
[58] I make no finding on whether Gonsalves could seek to vary spousal support if Scrymgeour is successful on his appeal.
6. Self-sufficiency incentives
[59] There is no evidence before the court that Gonsalves would be able to achieve self-sufficiency beyond her currently imputed income. Whether that income is sufficient to create financial independence is a matter to be considered for duration, as I discuss below.
[60] At trial, both parties agreed that Gonsalves’ imputed income would be based on a full-time position as a bank teller. There was no evidence that Gonsalves could obtain a more lucrative career.
[61] That finding was consistent with the evidence about Gonsalves’ age, the length of the relationship, her responsibilities to her child, her history of employment, and her skills and training.
[62] Consequently, I do not consider this factor as affecting the SSAG range determination.
7. Length of cohabitation
[63] I agree with Gonsalves that length of cohabitation is a factor the court can consider to determine the appropriate range in the SSAG. However, in the cases relied upon by Gonsalves, the long-term relationship is to be understood in the context of the evidence as to (i) the compensatory nature of the spousal support, (ii) the needs and lifestyle of the parties, and (iii) the other factors set out in the Revised User’s Guide.
[64] Gonsalves submits that the parties were in a “relationship of some permanence” for over 20 years, based on s. 29 (b) of the Family Law Act. I do not agree.
[65] Under s. 29(a), persons who are not married become “spouses” when they have cohabited “continuously for a period of not less than three years”.
[66] However, an earlier cohabitation starting date under s. 29(b) can apply to “the parents of a child as set out in section 4 of the Children’s Law Reform Act” but only if the parties are in a “relationship of some permanence”.
[67] Counsel for Gonsalves provided no authority that a “relationship of some permanence” arises simply because two persons are the parents of a child. Such an interpretation is contrary to the ordinary meaning of the words of s. 29(b).
[68] It is not the fact of being parents that establishes a relationship of some permanence. Section 29(b) does not create a relationship of some permanence just because two persons are parents.
[69] In the present case, the facts as I found in my Reasons do not support Gonsalves’ submission that there was a relationship of some permanence as of 1989 (when the parties started dating) or as of 1991 (when their first child was born).
[70] The evidence at trial was that the parties started dating in 1989, but when Gonsalves became pregnant in May 1990, she chose to end the relationship rather than accept the ultimatum of Scrymgeour to have an abortion. Gonsalves went to court to obtain child support which she obtained by the 1991 Order. The parties began dating again in 1993, and then moved into the Allenwood Property in 1994 (see paragraphs 20-34 of my Reasons).
[71] Consequently, I find that the parties were “spouses” under s. 29(b) for 16 years, as it was in 1994 that they began a “relationship of some permanence” as parents.
[72] In Curry v. Curry, 2016 ONSC 1893 (“Curry”), Doyle J. applied a high range SSAG assessment and awarded the wife 60% of the net disposable income (“NDI”) taking into consideration the length of cohabitation (20 years), the wife’s compensatory claims, economic disadvantage suffered by the wife due to her role as a homemaker, the parties’ lifestyle during the relationship, and the dependant children who would be in her care (Curry, at para. 198).
[73] Gonsalves relies upon Curry to submit that the court should select the high end of the SSAG range based on the 53.6% share of NDI it would generate. Gonsalves submits that, as in Curry, there is a long-term spousal relationship and Gonsalves still has one child in her household.
[74] The extent of economic disadvantage suffered by Gonsalves is not as severe as the “full-time homemaker” in Curry, and there is no evidence that Gonsalves’ “post-separation responsibilities” would affect her availability for a full-time teller position (see Curry, at paras. 137-55, 190, and 192).
[75] Similarly, while the length of the relationship was also a factor in Afridi v. Shah, 2016 ONSC 1971 (“Afridi”), Scott J. found that (i) “the applicant’s career advancement was deferred” as a result of the respondent’s frequent travel and relocation for his career; and (ii) the applicant “was responsible throughout married cohabitation for almost all of the childcare duties which were complicated due to the special needs of some of the children” (Afridi, at para. 11).
[76] In the present case, Gonsalves did not have to relocate and start her career anew. Further, Scrymgeour was an active parent responsible for many household tasks, at least from 2005 onwards (see paragraph 66 of my Reasons).
[77] Gonsalves submits that spousal support should be located in the higher end of the SSAG range as it is a “with child support” case. Gonsalves relies on Rogerson and Thompson’s comment that such cases “should more often resolve in the upper half of the range” (Revised User’s Guide, at p. 45).
[78] However, in the same paragraph of the Revised User’s Guide, the authors state that the basis for such an order is that “[m]ost of these cases are strongly compensatory and there is great ‘need’ in the home of the primary carer for the children, which should push amounts higher in the range” (Revised User’s Guide, at p. 45).
[79] In the present case, there is a compensatory element to the spousal support claim and some need for such support, but as I discuss above I do not find that the facts support a “strongly compensatory” claim nor “great” need.
[80] Consequently, while the length of the relationship is a factor in the present case, it does not support a high SSAG range when considered in light of the other factors. I find that the length of cohabitation supports a mid-range SSAG assessment.
[81] Given the connection between range location and duration, I will review all of the above factors in my concluding analysis after considering duration issues below.
Issue 2: Duration of ongoing spousal support
a) Positions of the parties
[82] Gonsalves submits that, as an initial order, spousal support should be indefinite with a review to take place “one year after the dependent child, John, ceases to be a child of the marriage and the subject of support obligations”. John is now 14 years old and in grade 9.
[83] Gonsalves submits that the review should be based on a material change in circumstances.
[84] Scrymgeour submits that the spousal support order should be limited to 12 years from the date of separation and end in December 2022.
b) Analysis
[85] In the Revised User’s Guide, at page 46, the authors note “the inter-relationship of duration and amount”, in that “[a] high-range amount can be linked to a shorter duration or, vice versa, a lower amount for a longer duration”. Consequently, I address the issues concerning the duration of spousal support as it needs to be considered together with any finding on the range.
[86] The first issue is whether it is appropriate to fix a termination date in this order, or whether the order ought to be made “indefinite” (i.e. not permanent, but with no fixed duration) with a review period.
[87] The second issue arises if a review period is ordered. In that situation, the court must determine an appropriate review period and whether the review will be subject only to a material change or based on the circumstances existing at that time on a de novo basis, taking into account what occurred between the date of the initial order and the review.
[88] I address each of these issues below.
1. Should the spousal support order be indefinite or have a fixed termination date?
[89] Gonsalves submits that the court should not set a termination date for spousal support, but instead order spousal support for an indefinite period with a fixed review date.
[90] Scrymgeour submits that this court should fix a termination date for spousal support. Scrymgeour submits that the date should be 12 years after separation, ending in December 2022, which is the mid-point of the 8 to 16 year duration range suggested in the SSAG calculation.
[91] On an initial spousal support order, the general approach of the courts is to make an indefinite order subject to review. Rogerson and Thompson comment in the Revised User’s Guide, at p. 43 that “[m]ost initial orders are ‘indefinite (duration not specified)’”.
[92] The current comments in the Revised User’s Guide are similar to the earlier comments of Rogerson and Thompson in their report on the revisions to the SSAG, relied upon by Sherr J. in Dabrowska v. Bragagnolo, 2008 ONCJ 360 (at para. 27):
Further, the initial order will still be indefinite (duration not specified). Any time limit will only appear after a review or variation hearing, especially in cases involving young children.
[93] This does not mean that an “indefinite” support award is a “permanent” or “lifetime” order. To the contrary, particularly when a review period is specified, the court seeks to ensure that the parties can return to court to consider the relevant circumstances at that time.
[94] In Zivic v. Zivic, 2014 ONSC 7262 (“Zivic”), Stevenson J. ordered indefinite spousal support subject to review within three years of her order. The parties had been married for 6 ½ years. Justice Stevenson held that “I am not prepared to place a termination date on support at this time but given the short duration of the marriage, a review is warranted” (Zivic, at para. 195).
[95] Similarly, in Dupuis v. Desrosiers, 2013 ONCJ 720 (“Dupuis”), Zisman J. ordered indefinite spousal support with a review within three years, “with respect to both entitlement and amount, at the instance of either party without the necessity of proving a material change in circumstances and based on the expectation that the applicant will use her best efforts to become self-supporting” (Dupuis, at para. 132 (4)). In Dupuis, the parties were in a common law relationship for 6 ½ years.
[96] In Kuznetsova v. Flores, 2016 ONCJ 203 (“Kuznetsova”), Sherr J. ordered indefinite support with a review period at the request of either party after three years, both as to entitlement and amount of support (Kuznetsova, at para. 64). The parties in that case had married in October 2013 and separated in May 2015.
[97] The above cases reflect the court’s concern about setting a termination date in light of uncertainty as to a spouse’s financial situation, potential self-sufficiency, and future needs, even after short marital or common law relationships.
[98] It is not appropriate for a court to set the termination date at the initial order solely because the SSAG suggest a range of 8 to 16 years for a 16 year cohabitation. The cases cited above provide that an appropriate termination date can be determined at the review hearing after considering the relevant evidence at that time.
[99] In the present case, it cannot be said with any certainty at this point that Gonsalves will become self-sufficient, given her income of $40,000 and no evidence of potential career advancement. Factors such as the property award, future costs related to her dependant child, and unknown changes in circumstances may all have a role to play in making that determination.
[100] Consequently, I adopt the approach taken in the case law discussed above and order that spousal support be indefinite with a review period.
2. The appropriate review period and the nature of the review
[101] Gonsalves proposes a review period take place “one year after the dependent child, John, ceases to be a child of the marriage and the subject of support obligations”. John is now 14 years old and in grade 9. Gonsalves submits that the review should be based on a material change.
[102] I do not agree with Gonsalves that the review period should be set as far away as one year after John ceases to be a child of the marriage and the subject of support obligations. That date could be as far removed as 7 years or more from the present, if John were to attend university. Given that the parties separated in December 2010 (now more than 6 years ago), such a review period could risk being at least 13 years from the date of separation and possibly longer.
[103] The review period proposed by Gonsalves is too far removed from the suggested range of 8 to 16 years under the SSAG. Gonsalves’ proposal could render Scrymgeour’s position on the appropriate termination date moot.
[104] Also, the court should be able to consider all of the circumstances relevant at the time of the review, without the parties having to establish a material change. The need for the review arises out of uncertainty as to the future, and as such a “material change” review is not appropriate.
[105] Consequently, I fix the review date to be no earlier than December 31, 2020, at the request of either party. By that point, which will be 10 years after the separation, John’s status as a dependant will be known with more certainty. The review will be almost 4 years from the date of this judgment so that the reviewing court can address issues relevant to spousal support. The review is to be for both quantum and duration, without the necessity of proving a material change in circumstances.
Conclusion on ongoing spousal support
[106] The parties agree to the range of ongoing spousal support under their imputed incomes. That quantum ranges from $1,799 per month at the low end, $2,291 per month at the mid-range, and $2,788 at the high end.
[107] Almost all of the factors I discuss above support a mid-range calculation, except for the property award of almost $600,000 which supports a quantum lower than the mid-range.
[108] In this case, the duration of my order for ongoing spousal support does not alter the SSAG range location. The parties at the review can maintain their respective positions. Gonsalves can seek a longer period while Scrymgeour can maintain that a mid-range duration of 12 years is appropriate.
[109] On the basis of the above factors, I find that ongoing spousal support should be set at the “lower” side of the mid-range number but not at the “low” range. I do not accept Scrymgeour’s argument that support should be fixed at the low end of the range, nor do I accept Gonsalves’ submissions for the high end of the range.
[110] Given that the low range is at $1,799 per month while the mid-range is at $2,291 per month, I fix spousal support on an ongoing basis at $2,100 per month. Ongoing spousal support will be effective from November 1, 2016, for an indefinite duration subject to review at the request of either party on the basis of quantum and entitlement (which includes duration) no earlier than December 31, 2020, without the necessity of proving a material change in circumstances.
Issues relevant to retroactive spousal support
[111] I set out the issues relevant to the determination of retroactive spousal support [7] at paragraph 13 above. I address each issue below.
Issue 1: The appropriate income for Scrymgeour in 2013-2015
a) The issue and positions of the parties
[112] At paragraph 341 of my Reasons, I referred to “Scrymgeour’s investment income for 2013 to 2015, as I set out at paragraph 321 above”. At paragraph 321 of my Reasons, I found that Scrymgeour received regular income from dividends and capital gains from 2013 onwards, being approximately $81,000 in 2013, $43,000 in 2014, and $34,000 in 2015.
[113] At paragraph 340 of my Reasons, I found that “For the years 2013 to 2015, I impute the same amount of $98,000 as employment income” to Scrymgeour.
[114] When the parties prepared their respective SSAG calculations for spousal support for 2013 to 2015, they took a different approach to calculating Scrymgeour’s income for the purposes of the support calculation.
[115] Scrymgeour treated capital gains and dividends as distinct income sources as they attract different tax consequences. Scrymgeour entered these sources of income into the SSAG/DivorceMate software calculations as dividend or capital gain income, to arrive (with imputed employment income) at “annual guidelines incomes” of $156,696, $137,696, and $122,638 for the years 2013 to 2015 respectively.
[116] Scrymgeour relied on sections 5 and 6 of Schedule III to the Child Support Guidelines (Ontario).
[117] Gonsalves added the taxable amounts of dividends and capital gains as reported in Scrymgeour’s tax returns to the imputed income, to arrive (with imputed employment income) at “annual guidelines incomes” of $179,000, $141,000, and $132,000 for the years 2013 to 2015 respectively.
[118] Gonsalves relied on my comment at paragraph 341 of my Reasons that “I impute Scrymgeour’s total income at $179,000 for 2013, $141,000 for 2014, and $132,000 for 2015”.
[119] For the reasons I discuss below, I find that Scrymgeour’s approach is correct.
b) Analysis
[120] Sections 5 and 6 of Schedule III to the Child Support Guidelines (Ontario) address the mechanism to include income from dividends from taxable Canadian corporations (s. 5) and capital gains (s. 6).
[121] In particular, under s. 5, for the purpose of determining income for support calculations, the court is to “replace the taxable amount of dividends from taxable Canadian corporations received by the parent or spouse by the actual amount of those dividends received by the parent or spouse”. The SSAG calculation would take that amount and “gross-up accounts for income tax only”.
[122] Similarly, under s. 6, for the purpose of determining income for support calculations, the court is to “replace the taxable capital gains realized in a year by the parent or spouse by the actual amount of capital gains realized by the parent or spouse in excess of the parent’s or spouse’s actual capital losses in that year”. The SSAG calculation would take the amount of actual capital gains and “gross-up accounts for income tax only”.
[123] The above approach is necessary since dividends and capital gains are taxed at a different rate than income.
[124] Consequently, Scrymgeour properly separated employment income from dividend and capital gain income using the amounts I found at paragraph 321 of my Reasons.
[125] My reference to Scrymgeour’s “investment income” and “total income” at paragraph 341 of my Reasons should be read as referring to the taxable income from investments as set out at paragraph 321 of my Reasons and total taxable income. Any interpretation arising otherwise from those phrases used at paragraph 341 was inadvertent.
[126] At the hearing of property and income issues, no submissions were made as to the appropriate figures to include in 2013 to 2015 income for the purpose of the SSAG calculations.
[127] Gonsalves submits that despite sections 5 and 6, Scrymgeour should not benefit from the approach under those sections because he reported lower employment income in 2013 to 2015 (approximately $20,000 per year as set out at paragraph 316(o) of my Reasons). Gonsalves submits that Scrymgeour benefits as he would have retained more money, net of taxes from those dividends and capital gains than if he had earned the $98,000 employment income.
[128] Gonsalves provided no support in law for her position.
[129] Schedule III does not suggest that the court should treat dividend and capital gains income differently under the SSAG calculation depending on whether employment income is actual or imputed. Sections 5 and 6 alleviate the unfairness of having a payor pay support on the basis of money not received, while the SSAG calculation considers that the dividend or capital gain income is taxed at a lower rate.
[130] For example, in 2013, Scrymgeour received a $50,000 dividend which he included in his income as a taxable dividend of more than $80,000. The SSAG calculation takes that tax treatment into account, regardless of whether a person has actual or imputed income.
[131] For the above reasons, I find that Scrymgeour’s SSAG calculations for 2013 to 2015 are prepared in accordance with the proper annual guidelines income.
[132] With respect to retroactive child support obligations for Scrymgeour from September 2015 to December 2015, it would be based on an income of $122,638, and as such would be fixed at $1,058 per month.
Issue 2: The appropriate income for Scrymgeour for January 2016 to October 2016
a) Positions of the parties
[133] Scrymgeour submits that his income from January 2016 to October 2016 should be set at his 2015 rate, which I found to be $122,638 for the reasons discussed above. Scrymgeour applied this figure to determine child and spousal support owing from January 2016 to October 2016.
[134] Gonsalves submits that, since I found at paragraph 339 of my Reasons that “I impute income to Scrymgeour on an ongoing basis at a total amount of $150,000”, the income for January 2016 to October 2016 ought to be $150,000.
[135] For the reasons I discuss below, I agree with Gonsalves’ position.
b) Analysis
[136] As with the issue of dividend and capital gain income, the issue of a starting date for 2016 imputed income was not raised at the hearing on property and income issues. The parties restricted their submissions to the quantum of imputed income.
[137] The ongoing support obligation was to be based on my finding of 2016 income. At paragraph 340 of my Reasons, I summarized the amount of employment income ($98,000) I imputed for Scrymgeour for the years 2013 to 2015. That amount applies for the 2016 calendar year and on an ongoing basis.
[138] At paragraph 339 of my Reasons, I quantified Scrymgeour’s average income from investments at $52,000 between 2013 and 2015. Given that it could not be said how Scrymgeour would receive income from those investments in the future, I fixed investment income on an ongoing basis at $52,000, which was the average between 2013 and 2015.
[139] For 2016, I was not asked to, and did not make, a separate calculation of actual income from dividends, capital gains, or other returns on investments.
[140] Consequently, the income to be used for the 2016 calendar year is $150,000, based on the imputed employment income of $98,000 and adding investment income of $52,000, which was the average between 2013 and 2015. To the extent my reference to “ongoing basis” at paragraph 339 of my Reasons resulted in any confusion, it was inadvertent. The “ongoing” nature of the income award was based on the $150,000 of total income imputed to Scrymgeour, beginning in January 2016.
[141] On this basis, child support from January 2016 to October 2016 is based on Scrymgeour’s income of $150,000 and fixed at $1,263 per month.
Issue 3: Whether a deduction for Scott’s child support in 2013 is appropriate
a) Positions of the parties
[142] Scrymgeour submits that a deduction is appropriate because Scott resided with Scrymgeour in 2013. Consequently, Scrymgeour’s calculations incorporate child support payable by Gonsalves at $579 per month from March 2013 to December 2013, based on both Scott and John residing with Scrymgeour as dependants during that time period.
[143] Scrymgeour makes no claim for a similar deduction in 2014.
[144] Gonsalves submits that no deduction can be made since Scrymgeour did not claim child support for Scott in his pleadings. Gonsalves’ calculations only include $360 for child support payable by Gonsalves to Scrymgeour on the basis that John was a dependant residing with Scrymgeour during that period.
[145] The total amount at issue for deductions and “netting” purposes is $2,190 (based on a difference of $219 for 10 months).
[146] For the reasons that follow, I accept Scrymgeour’s position on this issue.
b) Analysis
[147] Scrymgeour submits that the court can award him child support for Scott because his position is akin to Gonsalves seeking relief at trial under the doctrine of joint family venture. I agree.
[148] At paragraphs 3 to 5 of my Reasons, I set out the pleadings issue relating to Gonsalves’ joint family venture claim. In particular, if an amendment had been necessary, I would have granted it since the issue of joint family venture was raised at the outset of the trial and all of the parties were prepared for that issue. Both parties addressed the issue thoroughly in the evidence and in written and oral submissions.
[149] Scrymgeour made a claim for the “table amount” of child support in his answer. While no evidence was led as to his child support claim at trial, the table amount is set and is dependent solely on the income of the parent against whom child support is sought.
[150] Consequently, once I determined that Gonsalves’ imputed income for the time period when the children resided with Scrymgeour was $40,000, a claim for child support based on two children could be maintained.
[151] Gonsalves acknowledges that child support for John is owed from March 2013 until September 2015 when John resided with Scrymgeour.
[152] For the above reasons, I find the deduction based on child support for Scott should be included from March 2013 to December 2013.
Issue 4: The appropriate quantum (i.e. what is the appropriate range under the SSAG calculation?)
a) Positions of the parties
[153] Scrymgeour submits that the low range was appropriate for all periods up to the Reasons.
[154] Gonsalves submits that the high range was appropriate for all periods up to the Reasons.
[155] I do not accept either submission. I fix the quantum pursuant to my discretion for the reasons I discuss below.
b) Analysis
[156] I rely upon my analysis of the applicable factors to determine range as discussed at paragraphs 22-80 and 106-110 above. These same factors apply to my consideration of retroactive spousal support, subject to the property award I discuss below.
[157] The principal factor which led me to conclude that the range for ongoing support ought to be slightly lower than the mid-range, i.e. the property award, does not apply in considering retroactive support.
[158] The property award cannot be considered for retroactive spousal support. Notably, Gonsalves was required to leave the Allenwood Property in March 2013 after she received a text from Scrymgeour that he had (i) changed the locks and (ii) packed up her effects in two boxes he had left on the front porch. Gonsalves stayed with her uncle in Scarborough and then with her parents in Barrie until she obtained the Stewart Order for support in August 2015 (see paras. 74-79 of my Reasons).
[159] Between her eviction from the Allenwood Property and the Stewart Order, Gonsalves had a higher need for support. She had no property award and received nothing from Scrymgeour. I agree with Gonsalves’ written submission that:
She was trapped by the Respondent’s refusal to pay support and consequent need to reside with her parents in Barrie, limiting her ability to assume care for the children. She was left with no capital to cushion her situation and her remaining capital was fundamentally depleted by the costs of this litigation.
[160] The factors I reviewed in these reasons generally support a mid-range assessment under the SSAG calculation. However, for the retroactive period before Gonsalves obtained court-ordered support, an award at a range higher than the mid-range (although not at the highest range) is appropriate given Gonsalves’ need during that time period.
[161] The Stewart Order required payments commencing effective July 1, 2015 and the payments were made. Consequently, as of the Stewart Order and until the Reasons (when I made the property award), a mid-range is appropriate. [8]
[162] The mid-range and high range calculations for retroactive spousal support, taking into account the parties’ child support obligations and using the income numbers provided by Scrymgeour, [9] generate the following spousal support ranges:
(i) $1,858 and $2,123 per month (at the mid and high ranges respectively) from March 2013 to December 2013, (ii) $1,818 and $2,078 per month (at the mid and high ranges respectively) for 2014, (iii) $1,530 and $1,748 per month (at the mid and high ranges respectively) from January 2015 to September 2015, (iv) $1,888 and $2,328 per month (at the mid and high ranges respectively) from October 2015 to December 2015, and (v) $2,291 and $2,788 per month (at the mid and high ranges respectively) from January 2016 to October 2016. [10]
[163] For the above reasons, I fix the quantum of retroactive spousal support for the periods up to the effective date of the Stewart Order (July 1, 2015) between the mid and high ranges.
[164] After the effective date of the Stewart Order, I apply the mid-range quantum. Gonsalves did not have her property judgment. However, Gonsalves had regular monthly payments to assist her with the consequences of the breakdown.
[165] I address below whether any deductions to the figures in the SSAG calculations should be made for tax consequences arising under income tax law. However, for the purposes of this section, I set the “gross” figures [11] for retroactive spousal support as follows:
(i) $2,000 per month from March 2013 to December 2013, (ii) $1,950 per month for 2014, (iii) $1,650 per month from January 2015 to June 2015, (iv) $1,530 per month for July 2015 and August 2015, [12] (v) $1,888 per month from September 2015 to December 2015, and (vi) $2,291 per month from January 2016 to October 2016. [13]
Issue 5: The adjustment of amounts for 2013 to 2015 to address tax consequences
a) Positions of the parties and background
[166] The amounts I set as the quantum of spousal support at paragraph 165 above are “gross” figures.
[167] The issue before the court is whether those “gross” amounts should be reduced between March 2013 and December 2015, since those payments are no longer tax deductible to Scrymgeour and would no longer be taxable in the hands of Gonsalves, under the Income Tax Act, RSC 1985, c. 1 (5th Supp).
[168] A detailed review of the applicable tax legislation is set out in the thorough analysis of Doyle J. in Charron v. Carrière, 2016 ONSC 7523 (“Charron”), to which I refer in more detail below. I adopt and rely upon Doyle J.’s analysis of the tax legislation as set out at paragraphs 14 to 18 of her reasons.
[169] In their written submissions on support issues, Scrymgeour took the position that any amounts ordered for spousal support from March 2013 to December 2015 had to be adjusted to reflect the tax consequences of such amounts not being deductible for Scrymgeour and not being taxable in the hands of Gonsalves.
[170] In particular, Scrymgeour sought an order that any amounts to be paid for retroactive spousal support from March 2013 to December 2015 be set at the mid-point of the after tax cost to Scrymgeour (had the amounts been paid on a monthly basis at the relevant dates) and the after tax benefit to Gonsalves (had she received the amounts on a monthly basis at the relevant dates).
[171] In her reply written submissions, Gonsalves took the position that:
[T]he Respondent provided no legislative, legal or evidentiary basis for reducing retroactive support based on the tax rate of a lump sum payment. Indeed, it would be unconscionable to penalize the Applicant for the Respondent’s gross failure to pay spousal support with its harsh consequences (for the Applicant and for John) over the years.
[172] In light of the above positions, I raised this issue with counsel in my list of questions arising from their written submissions. I asked counsel to provide me with any case law on the issue no later than the hearing so that I could consider it at the hearing. That request was made as part of a series of questions to attempt to focus the contentious issues at the support hearing. I noted in my request on this issue:
Counsel will need to provide any authority upon which they are relying to support their positions, whether directly on this issue or indirectly if counsel are relying on more general propositions.
[173] On February 9, 2017, both counsel appeared and argued the issue without case law. The hearing on the issue was thus conducted with each side making general arguments on the fairness of their respective approaches.
[174] Counsel for Gonsalves took the position that he had never seen such an approach in “20 years” of the case law.
[175] Counsel for Scrymgeour stated that such an approach had been taken, but provided no authority. Instead, counsel for Scrymgeour stated that she would forward a case to me if she could find one on point.
[176] Approximately two and a half hours after the hearing concluded, counsel for Scrymgeour emailed a case to me (Hume v. Tomlinson, 2015 ONSC 843 (“Hume”)). Scrymgeour relied upon Hume to support his position.
[177] Approximately one hour later, counsel for Gonsalves emailed a responding case to me (Meth v. Barrenechea, 2016 ONSC 1415 (“Meth”)). Gonsalves relied on Meth to support her position.
[178] The next morning, on February 10, 2017, counsel for Scrymgeour emailed an additional case to me (Charron v. Carrière, 2016 ONSC 7523), which Scrymgeour relied upon in support of his position.
[179] Consequently, counsel made no oral submissions on the case law nor addressed any factual distinctions that may arise. Counsel did not request any opportunity for further written or oral argument and in any event, I would not have granted it.
[180] Finality is required. By the time costs submissions are received and reviewed, it will be almost a year since the initial trial date.
[181] I have reviewed the case law provided and considered it in the light of the evidence before me. To the extent that there are evidentiary gaps or legal issues raised by the case law, I address them in my analysis below.
b) Analysis
[182] I agree that Scrymgeour is entitled to a reduction of the “gross” amount of retroactive spousal support payable from March 2013 to December 2015, although I do not agree with the method proposed by Scrymgeour.
[183] I rely only on the cases delivered by email after the hearing and the cases cited within those authorities to the extent that they are relevant to this issue.
[184] In Hume, Toscano Roccamo J. addressed the same issue as in the present case: whether retroactive spousal support payments should be “netted” to address the tax consequences of non-deductibility. The parties had returned before Toscano Roccamo J. for directions arising out of her earlier retroactive spousal and child support orders.
[185] Justice Toscano Roccamo set out the issue (Hume, at para. 6):
The Respondent argues that child support and spousal support are treated differently for tax purposes. The Respondent correctly points out that my Order of December 18, 2014, relies upon the use of the Applicant's DivorceMate calculations to determine spousal support, child support and contribution to s. 7 payments. The DivorceMate software provides calculations for taxable spousal support, non-taxable child support and the tax deductibility of s. 7 expenses. In addition, the ranges for quantum of spousal support payable under the SSAG take into consideration that the SSAG amounts are tax deductible by the payor and included in the recipient's taxable income.
[186] Toscano Roccamo J. reviewed the applicable case law. The following excerpts from her reasons are apt in the present case:
(i) “The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in the hands of the recipient and tax deductible by the payor. A retroactive award must be ‘nettled down’ to account for its non-taxable status in the recipient's hands, and its non-tax deductible status in the payor's hands” (Hume, at para. 7, citing from Thompson v. Thompson, 2013 ONSC 5500 at para. 75); and (ii) “as the order for a retroactive lump-sum payment was not deductible for the payor, the payor would in effect pay more now than he would have, had the amounts been paid on a periodic basis such that he could benefit from tax deductions” (Hume, at para. 8, summarizing the decision in Patton-Casse v. Casse, 2011 ONSC 6182, aff’d 2012 ONCA 709).
[187] Toscano Roccamo J. rejected the applicant’s submission (which is the same as Gonsalves’ submission in the present case) that “the parties should simply calculate arrears by adding the amounts ordered for child support and spousal support from 2012 to 2014 and subtract the amounts paid by the Respondent to determine the amount of arrears” (Hume, at para. 5). Instead, Toscano Roccamo J. ordered a netting based on “the tax ramifications of retroactive lump-sum spousal support orders” (Hume, at para. 7).
[188] Consequently, Toscano Roccamo J. ordered the deduction based on the average marginal rate of the respondent payor. She noted (Hume, at para. 12):
On the other hand, the case law I have referenced (see: Vanasse; Bargout; Lalonde v. Lalonde, [2009] W.D.F.L. 297 (Ont. S.C.); Patton-Casse v. Casse, 2011 ONSC 6182, 8 R.F.L. (7th) 393; and, Korkola v. Korkola, [2009] W.D.F.L. 1380 (Ont. S.C.)). has in each case reduced the retroactive lump-sum payable for arrears, taking into consideration the approximate marginal tax rate of the payor, as opposed to adjusting the lump-sum payable based upon the DivorceMate provisions for the "net" or "after-tax" amounts or "Net Disposal Income" NDI amount. As noted, the SSAG's software, DivorceMate, addresses after-tax amounts for periodic support ordered rather than retroactive lump-sum payments.
[189] Recently, Doyle J. took a similar approach in Charron. Doyle J. heard submissions from the parties about “netting” retroactive spousal support payments after she had rendered an earlier decision on retroactive and retrospective child and spousal support (Charron, at para. 1).
[190] In Charron, the payor submitted that his applicable tax rate should be used to discount the amount payable, on the basis that “[i]t would be unfair to use the recipient’s tax rate or a mid-point of the parties’ tax rates as he would have received a tax deduction of his spousal support payments had payments been made” (Charron, at para. 8).
[191] In Charron, the recipient submitted that, since she earned no income in 2013 and had no tax payable, “[i]t would be unfair to her if the Court were to use the payor’s average tax rate as she had minimal taxes to be paid in those years had spousal support been paid” (Charron, at para. 11).
[192] Doyle J. reviewed the tax treatment of spousal support provisions under the Income Tax Act. In essence, a party can only go back one calendar year for deductions of a lump-sum retroactive support order.
[193] Doyle J. conducted a thorough review of the case law addressing retroactive spousal support payments when the payor can no longer deduct those amounts from income. She held (Charron, at para. 19):
The courts have taken the approach of netting a payor’s retroactive spousal support payable to take into account the taxes he/she would have been able to deduct.
[194] Doyle J. held that “the appropriate method to be used in this case is the mid-point of the parties’ respective [marginal] tax rates” (Doyle, at para. 49).
[195] Doyle J. noted that the court has taken different approaches to the netting process. She held that “[t]here are variations in calculating this deduction” (Charron, at para. 19).
[196] In particular, whereas Doyle J. had evidence as to the parties’ marginal tax rates, she reviewed the court’s approach when such information was not available.
[197] Doyle J. referred to the decision in Bastarache v. Bastarache, 2012 NBQB 75 (“Bastarache”). In that case, Walsh J. held (Bastarache, at para. 45):
The approach in Murray v. Murray, supra, in Chalifoux v. Chalifoux, 2008 ABCA 70 and in Vanasse v. Seguin, [2008] O.J. No. 2832 (Supr. Ct.), as examples of a solution to this problem, was to fix, somewhat arbitrarily, a notional tax rate to the lump sum retroactive spousal support award. I intend to follow this same approach and will apply a 30% notional tax rate to reduce the size of the award accordingly. In doing so I am comforted by the following observation:
It is clearly an error for the Court to ignore the tax discount issue, but arbitrary determination of tax rates seems to be acceptable in most cases. Courts are aware that this is an imperfect science unless they are provided with clear evidence of what discount rate to use. In addition, the factors of delay and potential interest entitlement of the payee spouse make approximations of the right net amount seem acceptable ...
(Marie L. Gordon Q.C., An Update on Retroactive Child and Spousal Support: Five Years After S. (D.B.) v. G. (S.R.), National Judicial Institute Family Law Seminar, Toronto, Ont. (2012) at p. 66)
[198] In response to the above authorities, Gonsalves relies on the decision of Tzimas J. in Meth, in which no adjustment for non-deductible retroactive spousal support was ordered. However, in Meth, the payor had failed to comply with a court order to pay spousal support and, as such, the court held that it was not appropriate for the payor to benefit (and the payee to suffer) because of a breach of a court order (Meth, at para. 16).
[199] Further, in Meth, the recipient had declared the support she expected to receive for the years the payor was delinquent on her tax returns. There was no reason for a reduced payment in these circumstances (Meth, at para. 13).
[200] For the above reasons, the facts in Meth are distinguishable from the present case. Scrymgeour paid the amounts required under the Stewart Order and there is no evidence that Gonsalves included expected retroactive amounts in her tax returns.
[201] I adopt the law as set out by Toscano Roccamo J. in Hume and by Doyle J. in Charron. Those decisions are on point and apply to retroactive awards of spousal support which become non-deductible under the Income Tax Act.
[202] There needs to be some adjustment so that the amount paid is somewhat reflective of the cost to the payor and the benefit to the recipient.
[203] Often, there will not be a precise match between after tax benefit to a recipient and after tax cost to a payor, if the payor and recipient have different marginal tax rates. In those situations, using the mid-point of those marginal tax rates may yield a just result.
[204] In the present case, there is no evidence as to the parties’ applicable tax rate from 2013 to 2015. The SSAG calculations provided are based on imputed income (as the parties both relied on imputed income to determine retroactive support).
[205] Without any evidence as to applicable tax rates, the court is left only with actual earnings during that time. Gonsalves earned approximately $20,000 as a bank teller, and Scrymgeour earned approximately $20,000 in employment income plus varying amounts of dividends and capital gains each year.
[206] There was no evidence of the parties’ marginal tax rates.
[207] However, Scrymgeour’s proposal to “net” support on the basis of the mid-point of the after tax benefit to Gonsalves and the after tax cost to Scrymgeour appears to yield an unjust result.
[208] By way of example, if the court were to use the mid-point of 2013 after tax benefit and cost in the SSAG calculation, the “gross” amount of $1,858 would be reduced to $1,141.50, a reduction of almost 40%. Such a reduction is inconsistent with the reductions applied in the cases reviewed in Charron and Hume, which are generally in the range of 30%.
[209] Without any evidence of marginal or average tax rates in effect at the relevant time periods, I can do no better than the “arbitrary” approach suggested in Bastarache. I reduce each of the “gross” spousal support numbers by 30% and set that amount as the “net” retroactive spousal support Scrymgeour is to pay on a monthly basis from March 2013 to December 2015.
[210] As a result of the “netting” process, I order Scrymgeour to pay retroactive spousal support for 2013 to 2015 as follows:
(i) $1,400 per month from March 2013 to December 2013, (ii) $1,365 per month for 2014, (iii) $1,155 per month from January 2015 to June 2015, (iv) $1,071 per month for July and August 2015, and (v) $1,322 per month from September 2015 to December 2015.
[211] There is no netting required for payments of spousal support from January 2016 to October 2016. Those payments are fixed at $2,291 per month as I set out above.
Order and costs
[212] I order Scrymgeour to pay retroactive and ongoing child support as follows:
(i) $1,058 per month from September 2015 to December 2015, (ii) $1,263 per month from January 2016 to October 2016, and (iii) $1,263 per month on an ongoing basis effective November 1, 2016.
[213] I order Scrymgeour to pay retroactive and ongoing spousal support as follows:
(i) $1,400 per month from March 2013 to December 2013, (ii) $1,365 per month for 2014, (iii) $1,155 per month from January 2015 to June 2015, (iv) $1,071 per month for July and August 2015, (v) $1,322 per month from September 2015 to December 2015, (vi) $2,291 per month from January 2016 to October 2016, and (vii) $2,100 per month effective November 1, 2016, for an indefinite duration but subject to review at the request of either party on the basis of quantum and entitlement (which includes duration) no earlier than December 31, 2020, without the necessity of proving a material change in circumstances.
[214] Counsel assured the court that they could calculate the total net amount owing and allocation issues, after this decision is released. Counsel provided the court with a chart at the hearing on which they agreed that deductions from the retroactive amounts payable would be taken for child support payable by Gonsalves, payments by Scrymgeour under the Stewart Order, and child support paid by Scrymgeour to Gonsalves from March 2013 to June 2013.
[215] The only change I order with respect to the quantum of the deductions in the chart is that from March 2013 to December 2013, the deduction should be in the amount of $579 for Gonsalves’ child support obligations for John and Scott. Counsel can input the child and spousal support calculations as per this order and determine the net amount owing.
[216] The parties may now proceed with costs submissions as per the schedule and page limits set in my endorsement of December 7, 2016.
Justice Glustein
DATE: 2017-02-22
COURT FILE NO.: FS-12-18256 DATE: 2017-02-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PRUDENCE PERSAUD GONSALVES Applicant – and – STEVEN SCRYMGEOUR Respondent
JUDGMENT ON SUPPORT ISSUES
GLUSTEIN J. Released: 2017-02-22
Footnotes
[1] All defined terms are as set out in my Reasons.
[2] Since my Reasons were released October 27, 2016, I find that “ongoing” spousal support begins on November 1, 2016.
[3] The income determination for 2015 also affects the amount of child support owed by Scrymgeour from September 2015 to December 2015, as I discuss at paragraph 8(i) above.
[4] The income determination for January 2016 to the date of the Reasons also affects the amount of child support owed by Scrymgeour for that period, as I discuss at paragraph 8(ii) above.
[5] Scrymgeour does not seek a similar deduction for 2014.
[6] For this factor, I include any relevant consideration regarding the “age, number, needs and standard of living of children” (as discussed in the Revised User’s Guide at p. 45), as neither counsel isolated this factor on the list to be addressed by the court.
[7] As I note above, I will address the child support issues as they arise with respect to issues 1 and 2 below.
[8] After the Reasons, a range slightly lower than the mid range is appropriate for ongoing spousal support, for the reasons I discuss at paragraphs 106-110 above.
[9] (except between January 2016 and October 2016 for which I accept the Gonsalves calculation as I discuss above)
[10] See footnote 2 above.
[11] I set the “net” figures at paragraph 210 below pursuant to my analysis of tax consequences.
[12] During this two-month period, John still resided with Scrymgeour but Scrymgeour was paying support under the Stewart Order, so the mid-range is appropriate.
[13] See footnote 8 above.
