Court File and Parties

COURT FILE NO.: FC-16-1353 DATE: 20170712 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.A.F., Applicant -and- J.L.F., Respondent

BEFORE: Madam Justice Julie Audet

COUNSEL: Peter Mirsky, for the Applicant Sarah L. Coristine, for the Respondent

HEARD: June 29, 2017

Endorsement

Introduction

[1] This is a motion brought by the Applicant father, K.A.F. (“the father”), for the following:

• an order setting interim child and spousal support;
• an order imputing income to the Respondent;
• an order severing the divorce from the corollary claims in the Application.

[2] The Respondent mother, J.L.F. (“the mother”), brought a cross-motion in which she sought the following:

• interim child and spousal support;
• an order imputing income to the father;
• an order that the father obtain a forensic accounting or professional valuation of a company in which he has an interest;
• an order that the father obtain an income valuation confirming all income available to him.

[3] Although in their respective notices of motion the parties were seeking orders with regards to custody and access of their youngest child, these matters were resolved before the parties appeared before me. The mother also withdrew her claim for an advance on the equalization payment.

Disclosure Matters

[4] The parties appear to have been struggling with regards to the exchange of financial disclosure, and orders were sought in that regard. At the outset of the motion hearing, I asked counsel to exchange within three weeks their respective lists of outstanding financial disclosure requests. Since the release of this decision comes almost two weeks after the hearing, counsel will have three weeks from the date of this Endorsement to exchange their lists of disclosure. Within one week of receiving same, counsel are to provide each other with a response (i.e. whether or not they agree or object to provide same). Should there remain any disputes on disclosure matters once this process is completed, counsel are to write to me directly within one week to provide their respective summaries of outstanding disclosure disputes and I will then make an order in that regard. Should I need further clarification to do so, counsel agreed that a teleconference would be the best way to deal with this.

Background

[5] The parties were married for approximately 19 years. They do not agree on the date of their separation; the mother takes the position that the parties separated on May 11, 2013 when she announced that she wanted a separation, whereas the father takes the position that they separated on May 12, 2014 when he left the matrimonial at the mother’s request. Since there are no retroactive claims for child or spousal support in the context of this interim motion, the actual date of separation needs not to be determined.

[6] The father is 46 years old and the mother is 50. The father was employed in Ottawa as a patent agent until his position was terminated in August of 2013. After being unemployed for one year, he was able to find employment as a patent agent in Calgary where he moved in May or June 2014. The mother worked as a hairdresser, but stopped working shortly after the parties married and the couple moved to Ottawa. She remained at home throughout the marriage caring for the children and running the household. She is not currently gainfully employed.

[7] The parties have three children together, namely Q. (19), A. (17) and D. (12). Q. is attending College and lives in her own apartment in Toronto. A. left his mother’s home in 2016 after running into problems with the law. He has been residing with friends and living in subsidized accommodations since 2016. He is currently completing his high school education on a part-time basis. D. has remained in her mother’s primary care since the parties’ separation. She just completed grade 7.

[8] It is important to note that, since the father moved to Calgary in June of 2014 and until very recently, his entire employment income was deposited into the parties’ joint bank account and the mother had full access to these funds to pay for her and the children’s expenses. Thus, no retroactive support is sought in the context of this motion.

[9] It is not disputed by the parties that the paternal grandparents have provided this family with generous monetary gifts and financial assistance throughout the years. They paid for all three children to attend private school throughout their elementary and high school education. When the father lost his job in May 2013, they provided the family with approximately $5,000 per month to help meet their household expenses and support their children. They also paid for the entire family to vacation in their home in Antigua each year. When Mr. F. Sr. sold his interest in his intellectual property practice in 2006, he shared his good fortune with his two children and gifted them each about $300,000. Whether or not these monetary gifts should be added to the father’s income for support purposes is an issue in this motion.

[10] As stated earlier, the main issue to be determined in this motion is the father’s interim child and spousal support obligation from April 1, 2017 onwards. At the heart of this question is the determination of each party’s income for support purposes. I will deal with the parties’ income first, and then turn to the issue of child and spousal support. I will then deal with the father’s request for an order severing the divorce from the other corollary claims and with the mother’s request for professional appraisals.

The Father’s Income

The Father’s Position

[11] The father takes the position that his income for support purposes is $90,415, which represents the employment income he is currently earning working as a patent agent in Calgary. The father states that he lost his employment in Ottawa due a reorganization of his company. At that time, his marriage was not going well and he says that he suffered from depression which led his employer to give him the choice between voluntarily resigning, in which case he would get a severance payment, or being terminated, in which case he would not. He states that while he has a university education and a skill set as a patent agent, he does not possess every skill nor as much experience as would be required to attract a position of employment in this field in Ottawa. He says he was fortunate to find employment in Calgary which recognizes his limitations and rewards him accordingly.

[12] With regards to his parents’ financial assistance, while he acknowledges that his parents have provided him and his family with generous monetary gifts during the marriage and financial assistance after its breakdown, he states that he has no right to receive any gifts from his parents, which are purely discretionary on their part, nor is he entitled to a stream of income from some trust or other financial assistance, all of which was provided to him and his family at a time of dire need. He takes the position that these gifts should be seen as extraordinary with no expectations of same being paid in the future and, thus, should not form part of his income for support purposes.

The Mother’s Position

[13] The mother takes the position that the father should be imputed an income of $171,915 based on the fact that he is intentionally underemployed, and in light of the significant monetary gifts he received from his parents during the marriage that he allegedly continues to receive post-separation. The mother states that the father intentionally tried to get fired from his previous position in Ottawa to financially harm her. Further, she states that he is able to find employment at a much higher rate, similar to the one he received when he was employed in Ottawa (namely, $146,000), but that he chooses to remain in Calgary earning a lower income solely for the purpose of reducing his support obligations. She claims that he has made very little effort, if any, to try and secure a better paying job. She relies on a print-out found on the internet that suggests that patent agents can earn an average salary of between $132,000 and $144,000, and claims that if he made efforts, he could secure such employment.

[14] The mother further takes the position that an additional $15,000 per annum should be imputed to the father to reflect the significant gifts and monetary assistance that he has received from his parents throughout the years. The mother claims that the parties lived a lavish lifestyle which was subsidized by the paternal grandparents, and which included a 3,000 square foot home with a large in-ground pool, professionally sized volleyball pit, yearly family vacations in Antigua, private school for all three children, the cost of braces for two of the children, a housekeeper, etc.

Analysis

[15] Section 19(1) of the Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) gives the court discretion to impute income to a payor in enumerated circumstances, including the following:

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

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

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

[16] In A.M.D. v. A.J.P., (2002) 61 O.R. (3d) 711, at para. 23, the Court of Appeal stated that in applying s. 19(1)(a), a judge is required to consider the following three questions:

1- Is the spouse intentionally under-employed or unemployed?

2- If so, is the intentional under-employment or unemployment required by the needs of any child or by virtue of his\her reasonable educational or health needs?

3- If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[17] To impute income on account of under-employment or unemployment, the court must find that the party voluntarily chooses to earn less than he\she is capable or earning. Section 19(1)(a) does not apply to situations where, through no fault of his\her own, spouses are laid off, terminated or given reduced hours of work. The onus of imputing income rests on the party seeking to impute income (A.M.D. v. A.J.P, at paras. 28 and 38).

[18] I am of the view that the father is not voluntarily under-employed. For the purpose of this interim motion, I make the following findings based on the evidence that is before me.

[19] I accept that the father’s performance at work back in 2013 was negatively affected by his dwindling marriage. I accept that when given the choice of resigning voluntarily with a severance payment or being fired without one, the father made the only choice that made sense for him and his family: he resigned. It is important to note that from the moment he moved to Calgary to accept a job as a patent agent, the father lived in the basement of a friend’s home and made all of his income available to his ex-wife and children who remained in Ottawa. The father, who appears to have a very good relationship with Q. and D., made the very difficult choice of moving to Alberta to continue to provide for his family. This is not representative of a person who makes decisions for the purpose of harming his estranged wife, as the mother would have this Court believe. Further, I accept the father’s evidence that he has looked for employment that would allow him to move back closer to his children and family, but that so far, he has been unable to find any that would pay him as much as his current employment.

[20] I am also not prepared to impute to the father an income on account of the monetary gifts he and his family have received from his parents. In Bak v. Dobell, 2007 ONCA 304, 86 O.R. 3(d) 196, the Ontario Court of Appeal stated at para. 74:

Although it seems that legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

[21] In considering whether it would be appropriate to do so, the Court of Appeal stated that a court had to consider the following factors:

• The regularity of the gifts;
• The duration of their receipt;
• Whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle;
• The circumstances of the gifts that earmark them as exceptional;
• Whether the gifts do more than provide a basic standard of living;
• The income generated by the gifts in proportion to the payor’s entire income;
• Whether they are paid to support an adult child through a crisis or period of disability;
• Whether the gifts are likely to continue;
• And the true nature and purpose of the gifts.

[22] The father’s evidence, which is supported by the documentary evidence before me, supports the following findings. The father received four different types of gifts from his parents throughout the years: a one-time payment of approximately $300,000 back in 2006; dividends totalling $37,500 paid to him by I. F.F.H. Inc. (“F.H.”) over the course of the past 20 years; private school fees for the children as well as other benefits which directly benefited the children (braces, housekeeping assistance) or that the paternal grandparents permitted the family to enjoy with them (such as yearly family vacations, luxury boat in Antigua); and “emergency” financial assistance following the father’s loss of employment and post-separation difficulties.

[23] With regards to the one-time payment of $300,000, the evidence is clear that this money was gifted to the father by Mr. F. Sr. at some point back in 2006 after he sold his intellectual property practice. His sister received a similar amount. Whether this was paid to the father in one lump sum or in separate payments over the next few years, I accept that this was an exceptional one-time payment that will not re-occur in the future. Further, this money was used by the father to purchase a much larger home as well as other family assets which benefitted the entire family, and which will be shared with the mother following the parties’ separation through the equalization process. In my view, it would not be appropriate to impute income to the father on account of this gift.

[24] With regards to dividends received by the father from F.H., the evidence shows that he and his sister are the owners of 20 Class A2 voting shares (each) gifted to them by Mr. F. Sr. back in 1996. There are 1,000,200 issued shares in the company all of which, except for the 20 that each the father and his sister own, are owned by Mr. F. Sr. who exercises complete control over this corporation. The father received dividends on four occasions over the course of the past 20 years totalling $37,500 ($6,600 in 2004, $16,000 in 2009, $8,900 in 2011 and $6,000 in 2014). There is no consistent pattern of payment of dividends, nor any certainty that any will be paid in the near future. Further, I find that the amounts paid to the father are not significant in light of the fact that the father has owned those shares for over 20 years.

[25] Likewise, I am not prepared to impute income to the father in relation to the generous gifts and benefits provided to this family by the paternal grandparents that directly benefitted the children, such as the payment of private school tuition, the cost of braces or the cost of a housekeeper; nor am I prepared to impute income on the father representing the monetary value of the all-inclusive vacation that the paternal grandparents allowed them to enjoy with their grandchildren once or twice a year, free of charge. In Bak v. Dobell, the court made it clear that child support is calculated on income, not on lifestyle (at para. 40).

[26] While the evidence clearly establishes that the paternal grandparents provided significant financial assistance to this family when the father was out of work and assisted the father post-separation when he was making his entire income available to the mother to allow her to pay for household expenses and support the children, those payments were paid on a temporary basis to help the family pay for basic needs. There is no evidence that would support a finding at this time that the father has any kind of entitlement to some stream of income (from a family trust or otherwise). The financial assistance which was provided generously by the grandparents in a moment of great turmoil for this family can be terminated at any moment, and in fact was when the father found employment in Calgary, and is not based on the evidence before me meant to be paid for a sustainable amount of time.

[27] For all these reasons, I am of the view that it would not be appropriate to impute additional income to the father on account of his receipt of those benefits in the context of this motion for temporary relief. His income for child and spousal support purposes is therefore set at $90,415.

The Mother’s Income

Father’s position

[28] The father is of the view that the mother is intentionally under-employed and that she has made no reasonable efforts to find employment and achieve some level of self-sufficiency. He seeks to impute income to her representing what she could earn if she made reasonable efforts to find employment, in the range of $15,000. While he acknowledges that she only has a grade 11 education, he states that she used to work as a hair dresser before the parties’ marriage, and that she is currently self-employed in that capacity as well as in the capacity of a fitness trainer, income that she does not disclose. Further, the father takes the position that the mother is in good health, fit and able to work in a minimum wage position. Since the separation occurred three years ago (four years if the mother’s evidence is accepted), the mother has had ample time to upgrade her skills as a hair dresser or to retrain as a beautician or in any other field of her choice, but that she has chosen not to do so.

Mother’s position

[29] The mother states that she used to work as a hairdresser prior to her marriage, a job she abandoned after having her first child to follow her husband to Ottawa. She claims that her husband was from a well-off family and that he did not want her to work during the marriage. Further, she states that the father was intent during the marriage to sabotage her efforts to work. She indicates that during her marriage, she devoted her time to the needs of her three busy children and tended to the household. She says that she has been out of the workforce since 1998, does not have a high school diploma and has limited employable skills. She also alleges that she suffers from depression and severe anxiety as a result of verbal and emotional abuse she has been subjected to at the hands of her husband, as well as arthritis in her hands which limits her dexterity. She says that since she has no client base, she cannot find a position as a hairdresser or a fitness trainer, and that she faces impediments in her job search due to processing difficulties, dyslexia and learning disabilities, as well as because of her child care responsibilities towards D..

[30] Her stated wish to achieve some level of self-sufficiency and to provide for the needs of her children would be to return to school to upgrade her skills in the beauty industry such as learning permanent eyelash and eyebrow extensions, Botox and other new beauty trends with a view of opening her own business. She says that she is also exploring the possibility of completing her high school equivalency to be able to obtain her business degree from one of Ottawa’s universities or colleges. She says that even if she acquires all those skills, she will not be able to start her own business until she acquires a proper home.

Analysis

[31] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: A.M.D. v. A.J.P.

[32] In Duffy v. Duffy, 2009 NLCA 48, 73 R.F.L. (6th) 233, the court sets out the following principles:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

[33] Former spouses also have an obligation to deploy reasonable efforts to try and achieve self-sufficiency. This is recognized by section 15.2(6)(c) of the Divorce Act, 1985, c.3 (2nd Supp.) which makes the promotion of former spouses’ economic self-sufficiency within a reasonable amount of time one of the four primary objectives of spousal support.

[34] I find it difficult to give credibility to the mother’s evidence with regards to her efforts to obtain gainful employment. While she claims to have significant health issues which would make it difficult for her to return to work as a hairdresser (depression, anxiety, arthritis), she wishes to upgrade her skills to open her own business as a hairdresser and beautician (both of which would require significant use of her hands, among other things). While she states that she suffers from important processing difficulties, learning disabilities and dyslexia which impedes on her ability to secure any kind of employment, one of her plans is to pursue a university or college education.

[35] I am of the view that the mother is either not truthful in her testimony or, alternatively, her expectations about future employment or retraining opportunities are completely unrealistic. It is also important to note that, while the mother claims, in her affidavits, to suffer from depression and anxiety, there is no medical evidence in the record that would corroborate those allegations other than a letter from the counsellor that she is currently seeing. Further, when questioned by the father’s counsel on this issue during her questioning, she responded that she had no health issues (“I’m fair. Nothing.”), she was not being treated by a physician for any medical issues and was not taking any medication.

[36] It is uncontested that, at the time of the parties’ separation, the mother had been out of the workforce for some 19 years. She is trained as a hair dresser, a field in which she has worked actively before her marriage, and has admitted that she continues to provide such services to friends and family (whether she gets paid for this or not). However, the mother states that she has been unable to secure a position as a hairdresser because she does not have an existing client base and claims that she cannot get a job as a hairdresser anywhere unless she brings her own clientele. Similarly, the mother has significant training as a fitness trainer which she obtained during and after her marriage. She has some experience in that field which she acquired at her YMCA where she continues to give two classes per week (free of charge). The mother states that she has applied to numerous fitness training facilities, but that she was told by all of them that without a client base, she would not be hired. By her own admission, the mother “refused to give more volunteer hours in the hope of recruiting clients” as she felt the YMCA was just trying to get her to work for free. The evidence also suggests that the mother provided some house cleaning services since the separation.

[37] The mother states that she applied for various positions in restaurants as a chef, but was not called back. I am unsure as to whether the mother has the qualifications that would allow her to obtain employment as a chef. She also says that she applied for many jobs in the service (restaurant and hotel) industry, but was told that she would not be considered unless she was available to work evenings and weekends, something she is not prepared to do since she needs to be at home for D. during that time. She claims to have applied at LCBO, Tim Horton’s, Winners, Staples, M&M Meat Shop, Shoppers Drug Mart and Farm Boy, but did not receive even one call back from all these prospective employers. The mother’s evidence does not reveal whether she has made efforts to find employment in the retail industry, which provides a wide-range of employment opportunities for a person with her skills set. The mother has only recently contacted Northern Lights, an organization that provides assistance to stay at home mothers seeking employment with the preparation of their resume. It is unknown whether she has taken any steps with government agencies (such as Employment Ontario) to upgrade her skills or help with her job search.

[38] I find that the mother has not made reasonable efforts to retrain or to find gainful employment since the parties’ separation. I find it hard to believe that, in the three years since the parties’ marriage broke down (four years if the mother’s position is accepted), the mother has been unable to secure a minimum wage employment, even on a part-time basis. Similarly, I find it difficult to accept that no one in the hairdressing or fitness industry will hire a prospective employee unless he\she bring with him\her an entire clientele. This would mean that it would be very hard, if not impossible, for newly trained hairdressers and fitness trainers to secure employment after completion of their training.

[39] Further, while she expresses the wish to upgrade her skills as a hairstylist and to learn permanent eyelash and eyebrow extensions, Botox and other new beauty trends, the mother has taken no steps during the past three years to do so. The evidence is clear that the mother had the means and the time to register for these courses if she had wanted to.

[40] While I acknowledge that it may be more challenging for a woman of her age who has been out of the workforce for a lengthy period of time to secure gainful employment, the parties have been separated for at least three years and the mother should have been able to find some type of work. I find that the mother is intentionally unemployed and that her intentional unemployment is not required by the needs of her child, D., who is now 12 years old and in school full-time. I do recognize, however, that the mother, until end of 2015 beginning of 2016, had the responsibility for three children (Q. and A. remained with her after the parties’ separation) which might have delayed her job search efforts and impeded on her ability to work full-time until 2016. However, the mother must now begin to contribute to her own support, as well as to the support of the children.

[41] For those reasons, the mother shall be imputed an income of $10,000 per annum, which represents a little over 15 hours per week at minimum wages, which I find is a level of income that she is able to earn at this time by making reasonable efforts to find employment. This imputed income will be effective on September 1, 2017 onward, which will give the mother an additional two month grace period within which to devote reasonable efforts to find gainful employment.

Child Support

[42] At this time, only D. continues to reside with her mother. D. is 12 and will be in grade 8 come September 2017. There is no dispute that the father must pay full table child support to the mother for D.. Based on his income of $90,415, the father shall pay basic child support of $804 per month for D., beginning on April 1, 2017.

Q.

[43] Q., who is 18 years of age, is currently enrolled in a graphic design course at a college in Toronto. She will begin her second year of full-time studies there in September 2017. She lives in her own apartment\residence, including during the summer. Her first year of tuition was covered with an RESP owned by the father. The mother indicates that she returned home generally once per month (for a weekend) during her first year of college including for part of her Reading Week. While the mother states that she continued to provide Q. with significant financial assistance during the past year, since the father’s entire income was made available to the mother for her and the children’s expenses which the mother used to assist Q., I find that both parties continued to provide her with financial assistance as required.

[44] It is not disputed that Q. continues to be a child of the marriage for whom support is payable. The mother asks this Court to make an order that the father be required to pay full table child support to her for the benefit of Q., since she continues to maintain a home base for her. It is to be noted that the mother is now living in a small two-bedroom apartment with D..

[45] Section 3(2) of the Federal Child Support Guidelines states:

Child the age of majority or over

3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[46] The case law has consistently held that the amount determined by applying the Guidelines (the full table amount) is not an appropriate method of calculating child support when an adult child attends university outside of his\her home, particularly when the child lives away from home for the entire year (Lewi v. Lewi (2006) 80 O.R. (3d) 321 (Ont. C.A.); Coghill v. Coghill (2006) 27 R.F.L. (6th) 434 (Ont. S.C.J.)).

[47] In my view, the appropriate method of determining the parties’ child support obligation towards Q. is to use a s. 7 (extraordinary expenses) approach and to require each parent to pay directly to Q. and in proportion to their respective income the post-secondary expenses (including living expenses, accommodation, transportation, tuition and school expenses) which she is not able to cover with her own means including by way of employment income, student loans, grants, bursaries or other available financial benefits. Since neither party submitted a budget detailing Q.’s income and expenses, I may be spoken to should the parties be unable to agree on the level of their respective obligations.

A.

[48] The mother seeks table child support for A. whereas his father takes the position that he is no longer a child of the marriage, having withdrawn from their charge.

[49] A. (now 17) appears to have gone into a downward spiral after his parents’ separation. He became abusive towards his mother, threatening her (including with a knife), damaging her property and harming himself. According to the mother, this behavior required police interventions on several occasions. Professional help was obtained for him including through the Youth Services Bureau, and he was hospitalized after declaring a suicide plan. While at the hospital, A. caused sufficient damage to be charged with a criminal offence. As it was recognized by all concerned that the mother was one of the triggers for A.’s violence and aggression, the Crown agreed to drop the charges if A. agreed not to live with his mother again. Since then, A. has lived with his paternal grandparents, in a boy shelter, with a girlfriend, and now with friends. He was kicked out of the private high school he was attending (paid for by his grandparents), and has recently started school again (part-time) through a school that offers alternate programs for children with difficulties in an effort to obtain his high school diploma.

[50] Based on the mother’s evidence, it would appear that A. also has substance addictions issues (at para. 19 of her June 2, 2017 affidavit, the mother states that « A. typically stays away from me when he is under the influence…”). The evidence does not reveal whether A. has a job or if he receives some kind of social assistance benefits. What is clear is that A. is no longer living with either of his parents (although in her June 8, 2017 affidavit, the mother states that he came back to her home briefly), and there is no evidence that would suggest that this will change before A. turns 18 (in March 2018). The mother states very clearly in all of her affidavits that she is scared of A. and that she does not want him to live with her.

[51] Section 15.1 of the Divorce Act states:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

[52] Section 2(1) of the Divorce Act defines “child of the marriage” as follows:

Child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[53] In P. (L.I.) v. B. (L.H.E.) 2013 MBQB 37 (Man. Q.B.), 289 Man.R. (2d) 24, Justice Rempel of the Manitoba Court of Queen’s Bench reviewed a significant number of cases dealing with minor children who were alleged to have withdrawn from parental control. The court stated:

27 The question of whether or not a child has withdrawn from parental charge is one of fact. Physically residing away from both parents is not determinative as to whether or not a child is under the charge of a parent, although it is an important factor to be considered. The British Columbia Court of Appeal articulated this conclusion in Pound v. Pound, [1987] B.C.J. No. 109 (B.C. C.A.) where the court rejected the argument that a child who voluntarily leaves home is no longer under the charge of the parents. Justice MacFarlane writing for the court stated:

Children do live away from their parents’ homes for variety of reasons. That does not mean to say that they are not still under the charge of their parents in the sense that the parents have a burden, obligation, duty or liability for their maintenance.

Counsel for the appellant has cited a number of cases to us dealing with situations where children have been found not to be under the charge of their parents. I do not find those cases of any real assistance here. Each of them depends upon their own circumstances.

28 The leading case in Manitoba as to the withdrawal from charge by a minor is the Court of Appeal decision in Thompson v. Ducharme, 2004 MBCA 42 (Man. C.A.). This case involved a 17-year-old child who dropped out of school and remained in his mother’s home. The minor child made little effort to find work or to continue his studies or his training. In giving the reasons for the court detailing the obligation of the father to pay ongoing child support, Justice Kroft, in scrutinizing the language used in the Divorce Act made several important observations about the concept of withdrawal from charge in the meanings of the words “withdrawal” and “charge.”

29 At paragraph 14 he notes:

... while the meaning of “charge” has some uncertainty, the act of withdrawing from the “charge” of a parent is an act performed by the child. The word “charge” may be somewhat ambiguous, but I am quite sure that as used in s. 2.(1) of the Act, it is intended to be an economic term. To be in the charge of a parent means, as s 15.1 says, that a parent pays for the support of the child. That means financial care.

38 Some of the cases involving incarcerated minors seem to focus on whether or not the withdrawal from charge was voluntary. I respectfully disagree with the cases which conclude that a strict view of whether or not the child made a voluntary choice to withdraw from the parents’ charge is the sole determinative factor in deciding if child support should be terminated.

40 In my respectful opinion it is a mistake to apply the test of voluntariness of the child’s departure to cases in which the child is arrested and detained or incarcerated by due process of law. Each case needs to be examined based on its own facts and the decision must be based on the unique dynamic at play in the lives of any particular family. The court cannot examine what really happened in any meaningful way if strict dictionary definitions of legal terms are applied in any given case.

42 With that in mind, I think that when looking at the content of the parent/child relationship when a minor child is incarcerated and remains incarcerated until he or she reaches the age of majority, the correct question to ask is not if the withdrawal from charge is voluntary but rather “who bears the full legal responsibility for the child’s financial care during the period of incarceration.” In these circumstances I am satisfied that the state assumed full responsibility for the care and support of D. and by statute prohibited his parents from providing him with the necessities of life. As such there is no doubt in my view that D. withdrew from his parents’ control at some point after his arrest and he was not under their charge.

25 The definition of a "child of a marriage" and the issue of whether that child has or has not withdrawn from the "charge" of the parents is a provision inserted by the federal Parliament to deal with the not uncommon issue of teenagers going out on their own and not abiding by the rule of their parents. Subsection (b) of section 2(1) is an extension of the dependency of a child under the federal legislation over the age of majority and is generally interpreted to cover such a child in the case of either true physical disability or more commonly continuing education. Those provisions were not intended to have one parent collect Guidelines child support from another parent while the child was being maintained by the State.

[54] Clewlow v. Clewlow, 2004 CarswellOnt 3397 (Ont. S.C.J.), Thomsen v. Thomsen, 1995 CarswellOnt 5170 (Ont. Prov. Div.), Cochrum v. Lyons (2009) 74 R.F.L. (6th) 49 (Ont. S.C.) and P. (L.I.) v. B. (L.H.E.) 2013 MBQB 37 (Man. Q.B.) all stand for the principle that no child support is payable for a child who is incarcerated. This conclusion seems to rest mainly on the fact that the parents are no longer responsible to provide the necessities of life for the child.

[55] In M. (J.C.) v. M. (K.C.), 2016 ONCJ 475, Justice Sherr had to decide whether or not the parties’ (then) minor child was a child of the marriage during the months she was in a treatment facility while she lived with the father. After reviewing the case law on the subject, she held:

118 The daughter was not independent from her parents while at the treatment facility. She was immersed in a very intensive treatment program. Her stay at the treatment facility was funded by her parents, at great expense to them. The parents remained fully responsible for the daughter's financial care. They were involved in her treatment. The expectation was that the daughter would be released to the care of one or both of her parents at the completion of the program.

119 The court finds that the daughter did not withdraw from parental control while she resided at the treatment facility and remained entitled to support during this time.

[56] Two factors appear to come out of the case law cited above. Firstly, is the withdrawal from charge voluntary? Secondly, who bears the full legal responsibility for the child’s financial care? In the absence of medical evidence that would confirm that A. suffers from diagnosed mental health issues which are the cause of his criminal actions and aggressive behaviors (as opposed to addiction issues for example), I find that A. leaving the mother’s home was voluntary on his part. By his own actions and behaviors, he has created a situation where he had to choose between leaving his mother’s home or face serious legal consequences. Based on the mother’s affidavits, A. continues to engage in behaviors that make it impossible for him to return to her care.

[57] With regards to the question as to who currently bears the full legal responsibility for A.’s financial care, in her May 18, 2017 affidavit, the mother stated that she continued to provide A. with financial assistance in the form of groceries and rides from time to time, as well as taking him out for lunch once in a while. She stated that she stopped giving A. money due to concerns of what he was doing with it. In her June 2, 2017 affidavit, the mother (after having seen A. four more times since filing her first affidavit), states that on each occasions she provided him with groceries from her home, took him for lunch twice, bought him four pairs of socks and told him that she would co-sign for him to rent a new apartment. There is no evidence that the mother or the father, for that matter, are providing financial assistance to the friends with whom A. currently resides. While the mother’s willingness to provide A. with some financial assistance in the form of groceries, rides and lunch money is laudable, the uncontested evidence is that A. is not going back home any time soon, that the mother is no longer providing a home for him, and that she is no longer providing him with the necessities of life.

[58] In those circumstances, and for the purpose of this interim motion, I find that A. is not presently a child of the marriage for whom child support is payable.

Spousal Support

[59] The father acknowledges that the mother is entitled to spousal support both on a compensatory and needs basis. Based on an income of $90,415 for the father and no income for the mother, the Spousal Support Advisory Guidelines generate a low range of $1,714, a mid-range of $1,938 and a high range of $2,188 after the payment of $804 for the support of D.. Based on an income of $90,415 for the father and an imputed income of $10,000 for the mother, the Spousal Support Advisory Guidelines generate a low range of $1,198, a mid-range of $1,460 and a high range of $1,743 after the payment of $804 for the support of D..

[60] On an interim basis, I have considered the following factors, among others, in concluding that the high range of spousal support suggested by the SSAG was appropriate in this case:

• the fact that the mother’s entitlement to spousal support is both compensatory and based on her needs;
• the fact that the father’s housing costs are currently much lower than the mother’s while he continues to live in Calgary;
• the fact that the mother does provide A. with some financial assistance, even if he has withdrawn from parental control; and
• the difference in the parties’ net disposable income (a difference of approximately $300 per month for the mother).

Despite the fact that the father will assume a larger proportion of Q.’s post-secondary expenses, I find that the high range of spousal support is still appropriate on a temporary basis.

[61] Therefore, the father will pay interim spousal support in the amount of $2,188 per month for the months of April to and including August 2017. Thereafter, he will pay spousal support of $1,743 per month.

Severing the Divorce

[62] The father seeks an order severing the divorce from the corollary issues in the case. The mother opposes this request on the basis that she has not yet been provided with all the disclosure that would allow her to understand her rights, including whether or not the father is the owner of a pension plan. She states that the father has extended health coverage through his employment and that she will cease to be the beneficiary of his health plan if a divorce is granted, which will negatively impact her.

[63] Rule 12(6) of the Family Law Rules, O. Reg. 114/99 specifically provides for the possibility of splitting the divorce from the other issues in a case. It states:

12. (6) SPLITTING DIVORCE FROM OTHER ISSUES - The court may, on motion, make an order splitting a divorce from the other issues in a case if,

(a) neither spouse will be disadvantaged by the order; and

(b) reasonable arrangements have been made for the support of any children of the marriage.

[64] Rule 12(6) sets out two preconditions to making an order splitting a divorce from other issues in a case; 1- neither spouse can be disadvantaged by the order and 2- reasonable arrangements have been made for the support of the children of the marriage. In this case, the within order provides for reasonable arrangements for the support of the parties’ dependent children. The parties have now been separated for three years (four years if the mother’s evidence on this issue is accepted). While the mother may lose the ability to remain a beneficiary under the father’s health plan, this is an inevitable result as the father will be entitled to a divorce order once this matter is completed. The mother is healthy and has no diagnosed medical issues that require medical treatment or medication at this time. There is no evidence that would support a finding that the mother will be in need of medical attention in the immediate future (other than perhaps being in need of a new pair of glasses, something that she can attend to while the divorce claim is being processed). Any material change in those circumstances can be addressed by an increase in spousal support.

[65] In the circumstances of this case, I find that it is appropriate to grant the order to sever the divorce and reserve the corollary issues to trial.

Professional Appraisals

[66] The mother seeks an order that the father obtain, at his own cost, a professional appraisal of the value of his shares in F.H.. I decline to make such an order. This company is a holding company with no ongoing business operations. Its main asset comprises of marketable securities whose fair market value can be easily determined at any given date. This Court, and the parties, do not need the assistance of a costly professional assessment to determine the company’s fair market value.

[67] The mother also seeks an order that the father obtain an income valuation confirming all income available to him from all sources including F.H.. I also decline to make such an order as I fail to see how an appraisal would be helpful to this Court on this point. There is no dispute as to the income received by the father form this company over the years. While the mother alleges that this is a possibility, there is no evidence at this time that would suggest the existence of a family trust. There is no allegation that the father is earning unreported income from a corporation.

[68] Even if there were allegations that might support the need for some type of forensic accounting to determine whether the father receives income from any other sources than the ones disclosed, I am of the view that the mother should bear the costs of same (subject to her right to claim part or all of these costs at trial). The evidence confirms that, shortly before the sale of the parties’ matrimonial home, and without notice to or consent from the father, the mother borrowed $50,000 from the joint line of credit secured by the home. At the time of sale, the joint line of credit had to be paid with the proceeds from the sale. These funds have been deposited by the mother in her own bank account and, at the time of this motion, $40,000 remains in that account. These funds can be used by her to pay for a forensic accounting should she chose to do so.

Disposition

[69] Based on the above, I make the following orders:

1. The parties shall exchange their respective list of outstanding disclosure within three weeks of this order. Within one week of receiving same, they are to provide each other with a response confirming whether they agree to provide or whether they object to the production request(s). Any outstanding disputes will be brought to my attention by way of written submissions within 10 days thereafter.
2. Beginning on April 1, 2017 and every month thereafter, the father will pay basic child support of $804 per month for D., based on his income of $90,415.
3. Beginning on April 1, 2017 and every month thereafter, the parties will pay directly to Q. in proportion to their income that portion of her post-secondary expenses (including living expenses, accommodation, transportation, tuition and school expenses) which she is not able to cover with her own means including by way of employment income, student loans, grants, bursaries or other available financial benefits.
4. Since neither party submitted a budget detailing Q.’s income and expenses, I may be spoken should the parties be unable to agree on the level of their respective obligations.
5. The father will pay interim spousal support to the mother in the amount of $2,188 per month for the months of April to and including August 2017. Thereafter he will pay spousal support of $1,743 per month.
6. The father shall maintain the four life insurance policies that he currently owns (Manulife Financial Policies #XXX36, XXX91, XXX61 and XXX30, naming the mother as the irrevocable beneficiary to secure future spousal and child support.
7. The divorce claim is severed from the other claims in this application. The father may proceed to obtain a divorce order by filing the necessary documentation with the court.

[70] If the parties are unable to agree on costs, I will accept brief written submissions (not exceeding three pages) from the father within 15 days, followed by brief written submissions (not exceeding three pages) from the mother within 15 days thereafter, and followed by a brief reply by the father if deemed necessary (not exceeding one page) within 5 days thereafter.

Madam Justice Julie Audet Date: July 12, 2017