Court File and Parties
COURT FILE NO.: FS-20-16582 DATE: 20210309
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Heather Liddell-MacInnis, Applicant AND: Joseph Gavin MacInnis Respondent
BEFORE: M. Kraft, J.
COUNSEL: Catherine Hibberd, for the Applicant Gary S. Joseph and Stephen Kirby, for the Respondent
HEARD: March 4, 2021
ENDORSEMENT
Nature of Motion
1The applicant (“wife”) brought a motion for temporary child and spousal support, both retroactive and ongoing. The wife seeks an order that the respondent (“husband”) pay her temporary child support in the sum of $6,798 a month for the three children of the marriage, based on the husband earning an annual income of $430,000; temporary spousal support in the sum of $9,258 a month; an order requiring the husband to maintain the wife and children on his extended medical and health plan; and an order that the husband name the wife the irrevocable beneficiary of his life insurance policy with a face value of $500,000 as security for his support obligation, until further court order.
Background and Overview of Court Proceedings
2The parties were married on June 26, 1996.
3There are three children of the marriage, Ceilidh MacInnis, born July 29, 1998 (“Ceilidh”), age 22; Maggie MacInnis, born May 25, 2000 (“Maggie”), age 20; and William MacInnis, born April 14, 2003 (“William”), age 17.
4The parties met in high school and were married for 23 years before separating on September 1, 2019. They lived together, separate and apart in the matrimonial home, until March 27, 2020. The wife deposes that the breakdown of the marriage arose as a result of the husband’s issues with alcohol dependency, which has fractured his relationship with the parties’ children.
5The wife and children left the matrimonial home on March 27, 2020, due to alleged conduct on the part of the husband showing complete disregard for safety protocols arising from the Covid-19 health crisis. The wife issued the within application in May 2020 and brought an emergency motion seeking exclusive possession of the matrimonial home. Ultimately, the husband consented to an Order granting the wife exclusive possession of the matrimonial home, which was incorporated into the consent order of Hood, J., dated May 21, 2020.
6The husband disagrees that his conduct led to a breakdown in his relationship with the children. Instead, he deposes that the wife has involved the children in the parties’ dispute, leading to the children to want to have minimal contact with him. The wife denies that she has involved the children in any such discussions. The husband deposes that he has had minimal contact with the children since March 27, 2020.
7On July 15, 2020, the parties attended a case conference before Faieta, J. His Endorsement set out a timetable for the delivery of financial disclosure between the parties, to take place on August 13, 2020.
Income of the Parties
8The wife is currently 49 years of age. She has been out of the work force for 17 years. After obtaining her high school diploma, the wife obtained a legal assistant diploma from Retter College in 1991. She worked for a law firm until William was born in 2003. At that time, she was earning approximately $40,000 a year, with benefits. Throughout the marriage, the wife taught highland dancing, charging $20 a session. She deposes that she earned, on average, approximately, $2,000 to $3,000 a year teaching highland dancing. The wife continues to teach highland dancing virtually. She deposes that she has three students who attend virtual classes up to 2 times a week, but if they do not show up for class, there is no cost to them. When classes were not on-line, the wife rented space at the Swansea Town Centre once a week to teach dance.
9During the marriage, the wife was the primary caregiver for the family and children and the husband was the primary income earner. She deposes that she was responsible for all of the children’s day-to-day needs and actively involved with all of the children’s schooling and activities while the husband provided for the family financially. The husband disputes the wife’s description of the parties’ roles during the marriage. He deposes that he made great efforts to assist with the children’s care and he encouraged the wife to re-enter the workforce, which she declined to do.
10The husband is currently 51 years of age. He is a chartered accountant and is a partner at BDO Canada LLP (“BDO”). Prior to BDO, the husband was a partner at Price Waterhouse Cooper (which later became PWC), where he left in 2019 to become a partner at RSM Canada LLP. The husband’s partnership at RSM ended on March 31, 2020. In February 2020, the husband joined the partnership of BDO, but he did not commence working until August 2020 (despite being able to start working in April 2020).
11The parties have a joint bank account at HSBC which has an overdraft facility. During the marriage, they typically used this account and it commonly went into overdraft and would be paid down with the husband’s income. That status quo continued until April 2020, when the husband ceased depositing his pay into the joint account. The wife was then left to use the parties’ joint bank account overdraft facility to fund the mortgage on the house; the property taxes on the house; all utilities expenses on the house; all household and personal expenses for herself and the children, including car payments, car insurance for her and the children. There were no incoming monies into the joint bank account once the husband diverted his pay elsewhere. He also continued to use the parties’ overdraft facility for his own personal expenses.
12According to the wife, since the husband has not paid any child support, spousal support or third-party payments for the children’s benefit of the wife since April 15, 2020, the parties’ joint bank account is in overdraft to the extent of ($276,266.48).
13Both parties were questioned in November 2020.
The Wife’s Motion for Temporary Child and Spousal Support
14Once the husband stopped depositing his pay into the parties’ joint bank account, the wife brought a motion for temporary child and spousal support, initially returnable before the court on December 15, 2020. The Endorsement of Boucher, J., indicates that the husband sought an adjournment of the motion on December 15, 2020 and that, after counsel made oral submissions, counsel for the wife notified the court on December 16, 2020, that the husband had withdrawn the sum of $276,820 from the parties’ overdraft facility attached to their joint bank account, thereby increasing the parties’ debt without her knowledge or consent. Accordingly, the Court recalled the parties for an appearance on December 16, 2020, and Boucher, J. was advised that the husband had returned the funds into the joint account.
15On December 16, 2020, Boucher, J., adjourned the wife’s motion for temporary child and spousal support to March 4, 2021, on terms, making the following temporary “without prejudice” order, pending the return of the motion:
a. The husband was ordered to pay the wife table child support for William in the sum of $3,178 a month, based on his earning an income of $411,000 (the minimum amount of income for the husband based on the evidence before the Court);
b. The husband was ordered to pay the wife spousal support in the sum of $10,786, being the mid-range of the SSAGs, for the “with child” formula, using an income of $411,000 for the husband and $0 income for the wife;
c. The husband was ordered to continue to maintain his life insurance policy with a face value of $500,000 with the wife as the beneficiary;
d. The husband was ordered not to make withdrawals from the parties’ joint accounts, nor any credit or overdraft associated with the accounts, nor to draw on any joint lines of credit; and
e. The parties were to be jointly responsibility for the monthly mortgage and related expenses. Including house insurance, property taxes, subject to reapportionment.
16Since the order of Boucher, J. was made, the wife has paid all of the matrimonial home expenses, including Rogers, gas, mortgage, utilities, internet, as well as the children’s expenses, including rent, cell phone and other incidental expenses from the temporary temporary child and spousal support being paid by the husband.
17I heard the return of the wife’s temporary support motion on March 4, 2021. In support of the motion, the parties filed significant motion material. 1
The Husband’s Income
18Historically, the husband earned an income well in excess of $600,000 a year. He experienced a decline in his income in 2020. Since 2017, the husband has earned annual incomes as follows:
a. In 2017, his line 150 income was $583,514.90. He also income split with the wife that year to the extent of $76,812, making his total income in 2017 $660, 326.90;
b. In 2018, his line 150 income was $1,217,132.22;
c. In 2019, his line 150 income was $1,064,204. He also had income from his professional corporation which he incorporated in 2019; and
d. In 2020, the husband deposes that his gross income from all sources amounted to $430,835, set out in his financial statement, sworn on February 25, 2021.
19When the husband’s partnership with RSM was terminated (again, on March 31, 2020), the correspondence from RSM, dated February 11, 2020, updated on August 14, 2020, confirms that he received the following monies:
a. A draw in-lieu of notice of $142,048, which he deposited into the parties’ joint bank account on April 15, 2020. The parties agree that this was a one-time non-recurring event;
b. The monthly sum of $13,212, representing his Partnership Value Allocation (“PVA”) of $163,543.00. The husband deposes that his PVA was present value discounted to $79,269 and was paid out to him in six installments of $13,212, commencing September 2020; and
c. The sum of $165,000 was paid to the husband on January 29, 2021, representing his return of capital from RSM. The husband’s position is that his return of capital is not “income” for support purposes, as it is a one-time, non-recurring payment which is an asset he has on the date of separation, which will be subject to equalization.
20The wife deposes that according to the letter of employment offer from BDO, dated February 19, 2020 (“BDO Offer Letter”), the husband’s compensation for 2020 was to be $400,000, made up of a base salary of $300,000, (which is to increase by $50,000 a year beginning in 2021) and a special bonus of $100,000 a year, which is predicated on the husband meeting specific targets.
21The husband’s most recent sworn financial statement sets out that his 2020 income was $430,835. It is on the basis of this income figure (as opposed to $450,000) that the wife seeks prospective temporary child and spousal support.
Husband’s Income for 2021
22Based on the BDO Offer Letter, the wife submits that the husband’s current income for support purposes in 2021 is $450,000. The husband deposes that he will not earn $450,000 in 2021. Instead, it is his position that his current income for support purposes is $226,800 a year.
23According to the husband, targets were not met last year as a result of the pandemic and, as a result, his base salary did not increase from $300,000 to $350,000 as contemplated in the BDO Offer Letter. Further, the husband deposes that while BDO pays out 75% of the base salary and then typically pays the remaining 25% in March of April of the following year, BDO “may elect to further defer the payment of that 25% or eliminate it all together”. The husband provides no third-party evidence to support this statement.
24According to the husband, for the months August through to October 2020, BDO paid the husband 50% of his draw, and then began paying him 75% of his draw. The holdback of $49,900 from BDO, according to the BDO Offer Letter, would typically be paid to the husband in March or April of 2021. Again, the husband predicts that he will not receive this holdback income.
25It is the husband’s evidence that in 2021, thus far, he is receiving 75% of his base salary of $300,000, plus $100 a month taxable allowance, which translates into $18,800 a month. However, the husband has neglected to include the two PVA payments of $13,212 he received in January and February 2021, in the calculation of his 2021 income. If one was to take the father’s evidence at face value, without the need for any third-party verification, his 2021 income would be $253,224, calculated as 1) $18,800 x 12 (75% of a $300,000 base salary); 2) $100 x 12 (monthly taxable allowance); and 3) $13,212 x 2 (representing his last 2 PVA payments received in Jan. and Feb. 2021). This figure of $253,224 does not include the holdback of 25% from BDO in 2020, which would add another $49,900 to the husband’s income, bringing it up to $303,124.
26The property issues in this case are not yet determined. The matrimonial home is registered in the wife’s sole name. The cottage property was also registered in the wife’s name. The cottage property sold on April 9, 2020. After paying necessary transfer fees, realty costs, legal fees, outstanding utilities and discharging the mortgage/line of credit in the parties’ joint names registered in favour of HSBC, the balance of the net proceeds of sale were paid to the wife in the sum of $345,614.85. These funds are being held by the wife in a bank account. With the cottage proceeds, the wife paid off a line of credit that was taken out by the husband against the cottage property of about $165,000, to pay into his capital account at RSM.
Parties’ Positions on Temporary Child Support
Wife’s Position on Child Support
27The wife takes the position that all three children are entitled to ongoing child support pursuant to s.15.1 of the Divorce Act.
Ceilidh
28She submits that Ceilidh, who is 22 years of age, remains a child of the marriage as defined in the Divorce Act, despite being over the age of majority, as she unable to withdraw from parental charge due to the fact that she is enrolled in a full-time post-secondary educational program.
29Ceilidh competed a Bachelor of Arts in Sociology from the University of Toronto in June 2020. She intended to commence a diploma degree in British Columbia in September 2020. However, due to the Covid-19 health crisis, her plans changed, and it was too late for her to enter into a new program for September. As a result, she commenced a one-year, full-time marketing programme at the University of Guelph-Humber in January 2021. The wife submits that Ceilidh is entitled to transitional child support between June 2020, when she graduated and January 2021, when she commenced her second degree program.
30The wife deposes that the husband knew of and agreed to fund Ceilidh’s plan to pursue a further degree in marketing after the completion of her undergraduate degree. Ceilidh’s living expenses are reasonable, since she lives at home with the wife. Ceilidh tried to find employment after completing her degree and did some driving for Uber Eats. She obtained part-time employment over the Christmas holidays earning minimum wage. The wife seeks monthly table child support for Ceilidh pursuant to the Guidelines as well as proportional contribution from the husband toward Ceilidh’s s.7 expenses, which include her car expenses (lease and car insurance), as well as her tuition and ancillary expenses. At the time of separation, Ceilidh had been driving a leased Lexus in the husband’s name. On December 17, 2020, the husband caused the bailiff to attend at Ceilidh’s place of employment and seize the leased Lexus that she had been driving. The wife then leased a less expensive vehicle for Ceilidh to enable her to maintain her part-time employment and attend the University of Guelph- Humber when in-person schooling resumes. The husband disputes that Ceilidh’s vehicle expenses are a legitimate s.7 expense.
Maggie
31Maggie is in her 3rd year of a Kinesiology degree at Brock university. For this academic year (2020-2021), her courses have been online as a result of the Covid-19 health crisis. As a result, Maggie has spent some of her school year in Toronto residing with the wife but she has also had to maintain her university rental in St. Catharines, of $485 a month. The wife seeks monthly table child support for Maggie pursuant to the Guidelines, as well as a proportional contribution from the husband toward Maggie’s s.7 expenses, which include emergency and reconstructive dental procedures as a result of a sports-related injury, at a cost of $20,000; wisdom teeth surgery at an approximate cost of $2,000, her rental expenses of $485 a month and her vehicle expenses (car lease payments and car insurance). Maggie drives a leased vehicle to enable her to travel back and forth from St. Catharines to Toronto. Maggie has been employed part-time and earns some income.
William
32In terms of William, who is under the age of majority, the wife seeks monthly table child support for him in accordance with the Guidelines, which is not disputed by the husband. William is in Grade 12 and as a result of the Covid-19 health crisis, he attends public school in a hybrid fashion: partially online and in-person. William hopes to attend a commerce program at University in September 2021. The wife deposes that the cost of the commerce program to which William has applied will be approximately $35,000 a year, made up of tuition fees, residence costs, books and other ancillary costs. William was actively involved in hockey at a high level and, in non-Covid times, his extra-curricular expenses for hockey, intensive fitness training and boxing amounted to $15,300 a year. These activities have ceased during the pandemic. The wife also seeks a proportional contribution from the husband toward William’s s.7 expenses, which are currently $700 a month for personal training. The husband submits that the wife provided no receipts in relation to William’s activities and that, in his view, personal training expenses of $700 a month are not necessary, in William’s best interests or reasonable, given the means of the parties.
33The husband does not have an extended medical and dental plan. The two older children are covered under University health plans. Any dental expenses sought by the wife as s.7 expenses refer only to uninsured costs.
34According to the wife, the husband has not made any contribution to the children’s expenses or paid any child support to the wife since April 15, 2020. She has paid these expenses from funds withdrawn from the overdraft facility to the parties’ joint account at HSBC Bank.
Husband’s Position on Child Support
35The husband takes the position that Ceilidh and Maggie are both over the age of majority, are working and that their post-secondary expenses ought to be paid out of the RESP, such as Maggie’s housing costs. The parties have a family RESP for the children’s post-secondary educational expenses which, according to the wife, had a balance of approximately, $115,261.59 as at December 7, 2020. The wife’s position is that the RESP will not be sufficient to pay for all of the children’s post-secondary educational costs, requiring additional financial assistance from the parties. The husband submits that the wife has not utilized the RESP funds to the extent she ought to have and, the parties ought to draw on the RESP funds before he be required to make direct contributions toward the children’s s.7 expenses. For example, the wife deposes that only Maggie’s tuition and books were paid out of the RESP, but her housing and vehicle costs were paid out of the parties’ overdraft facility on their joint bank account.
Ceilidh
36Further, the husband’s position is that monthly table child support pursuant to the Guidelines is not appropriate for Ceilidh given that she has already completed one undergraduate degree. The husband deposes that he never agreed to fund a further degree for Ceilidh once she completed her first undergraduate degree, whether she was attending the program in British Columbia or elsewhere. The husband’s position is that Ceilidh has an obligation to contribute toward her degree costs, especially since she has already completed one undergraduate degree. He submits that she ought to avail herself of student loans, scholarships and bursaries, and/or employment income and contribute at least one-third toward her tuition and ancillary expenses. The husband is prepared to pay his proportionate share of the remaining two-thirds of Ceilidh’s tuition with the wife.
Maggie
37With respect to table child support for Maggie, the husband’s position is that Guidelines table support for her is inappropriate given that Maggie is away at school for the months of September to and including April, and is, therefore, only entitled to table child support in the summer months of May through August, inclusive. Furthermore, the husband’s position is that the wife did not provide any information about scholarship/bursary/grant funding that may be available to her and, therefore, it is not clear what Maggie’s net expenses are. The evidence produced by the wife provides that Maggie is or was employed part-time at Global Pet Foods and earned about $2,000 of part-time income in 2020. Finally, with respect to Maggie’s extensive dental expenses, the husband submits that the wife failed to provide copies of any invoices or receipts for Maggie’s dental work.
38Finally, the husband submits that both adult daughters refuse to have a relationship with him, which ought to be taken into account when determining his temporary child support obligation.
Parties’ Positions on Temporary Spousal Support
39Currently the husband is 51 years of age. Again, he is an accountant and partner at BDO. The wife is 49 years of age. At the time of separation, she had been out of the workforce for 17 years.
40The wife seeks temporary spousal support at the high-end range of the Spousal Support Advisory Guidelines (“SSAGs”). She submits that she has entitlement to spousal support on both a compensatory and non-compensatory basis. Based on the roles the parties played during the marriage, the wife’s position is that she suffered an economic disadvantage by virtue of the marriage and its breakdown.
41The husband disputes the wife’s spousal support claims. He deposes that the wife significantly benefitted from the marriage, during which the vast majority of the parties’ assets were place in her sold name. The husband’s position is that the wife is not in urgent need of support.
42Further, the husband disputes that the wife has any entitlement to spousal support. He submits that she has an obligation to become self-sufficient and that since the parties’ separation 1½ years ago, she has taken no steps to achieve self-sufficiency. Further, he claims that she is understating the income she earns from teaching highland dancing. Finally, the husband maintains that through Questioning, he established that the wife’s lifestyle had not changed since separation.
43In terms of steps the wife has taken toward achieving self-sufficiency, the wife deposes that in September 2019, after separation, she obtained part-time employment as a waitress but was laid off when the Covid-19 health crisis began. In the Fall of 2020, the wife obtained minimum wage employment working for Uber Eats for a short time but is no longer doing this. She made inquiries to return to school at Humber College in 2021 to become a funeral director, at a tuition cost of $5,000 a year for a two-year course. The wife deposes that the average annual salary of a funeral director is $30,000 to $35,000.
44The husband seeks an order imputing the wife with income commensurate with her skills and experience. He believes that that she could upgrade her legal assistant skills. He makes much of the fact that the wife bought a purse at a cost of $2,900 after separation and that she deposed during her Questioning that she did so as an impulse purchase and with income she earned teaching highland dancing. Based on this, the husband believes that the wife has not properly accounted for her income from teaching highland dancing.
45As stated, above, the husband submits that any spousal support order, if ordered (with which he does not agree), ought to be based on him earning an annual income of $226,800 and not $430,000 or $450,000 as the wife claims.
46If the Court is inclined to make an order obliging the husband to pay temporary spousal support, the husband submits that the Court ought to ignore the SSAGs and only award a nominal amount of spousal support to the wife, in the sum of $1,000 to $2000 a month.
47Alternatively, the husband submits that if the court believes that the wife has entitlement to temporary spousal support, temporary spousal support should be ordered in a quantum that is on the low-end range of the SSAGs because the wife has capital from the cottage proceeds in her name and, according to him, she will owe the husband an equalization payment. He asks that the court impute the wife with income that she could reasonably earn on the net cottage proceeds at a modest return of 5% on $345,960.77, or $17,298.04 per year, as well as income she ought to be earning from employment
48In terms of the wife’s claim for retroactive child and spousal support the husband submits that her entitlement to receive retroactive child and/or spousal support back to April 1, 2020, ought to be adjourned to be determined at trial, given his inability to pay a retroactive award, without prejudice to the wife making that claim at trial.
The Law
The Applicable Statutory Framework Child Support
49The applicable provisions of the Divorce Act, are reproduced below:
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.
Guidelines apply
(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.
50The definition of a “child of the marriage” as set out in the Divorce Act, is reproduced below:
- 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.
51To determine whether an adult child is unable to obtain the necessaries of life, coming within the definition of “child of marriage” under the Divorce Act, the court is not to ask the question as to whether the child’s sources of income and other financial assistance support a sustenance existence, but rather, whether they are sufficient to support the child’s reasonable needs having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the child’s support: Weber v. Weber 2020 ONSC 4098, at paragraph 58.
52Pursuant to s.15.1(3), the Child Support Guidelines (“Guidelines”) must be considered when the court is asked to make a child support order in relation to children of the marriage who are over the age of 18.
53Child support for adult children is addressed in s.3(2) of the Guidelines, which provides as follows:
3(2) Child the age of majority or over
(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.
54While there is significant jurisprudence on the issue of support for adult children who are pursuing an undergraduate degree and a second/graduate diploma/degree, little concrete guidance as to entitlement or amount is provided in the case law since the decision in each case a fact-driven exercise.
Analysis – Temporary Child Support
Ceilidh
55Ceilidh is over the age of majority and has completed one undergraduate degree. The wife seeks on-going table child support for Ceilidh since she resides primarily with the wife, and is in the midst of a one-year diploma degree which, according to her, the husband had agreed to fund. Ceilidh is enrolled in a course of full-time studies and her career plans seem reasonable, as she is attempting to gain focused skills in marketing to obtain employment when the degree is completed. In this manner, I believe that Ceilidh will likely benefit from this course of study. Further, she appears to be working part-time and earning an income which she can contribute to her educational and ancillary costs. Since Ceilidh is residing at home with the wife, her living expenses for the duration of this program are reasonable. There is a dispute between the parties as to whether the parents agreed to fund this program after her undergraduate degree. Given the means of the parties, I find that if the marriage had remained intact, the parents likely would have decided to fund this one-year diploma program. However, the parties’ marriage has broken down and the husband’s income circumstances changed in 2020, such that he is earning far less than he was in 2019 (just over $1 million), even if we do not accept his income numbers. Regrettably, there is no evidence before the court as to whether Ceilidh is eligible for student loans or bursaries/scholarships or other financial assistance. However, even if she were, student loans are merely cost deferrals and when Ceilidh finishes her degree, the loans would need to be repaid.
56I find that Ceilidh remains a child of the marriage as defined in the Divorce Act. While she does have an obligation to make a reasonable contribution to her education, her income earned is not sufficient to cover her tuition expenses, but could be used toward her discretionary expenses, such as her vehicle costs. At the time that Ceilidh began her second degree, the collective means of the family (the parents and children) were relatively modest. While a parent may choose to assist a child voluntarily out of his/her own limited resources, his/her choice to do that does not then dictate that the other parent must do that as well. Particularly, given his child support obligations in relation to the two younger children – that is, paying the table amount of child support to the wife for William and Maggie and contributing toward their s.7 expenses. It cannot fairly be said that the husband then has sufficient resources to contribute as well to the support of the child pursuing her second degree. During submissions, however, the husband indicated a preparedness to pay his proportionate share of two-thirds of the cost of Ceilidh’s tuition, with Ceilidh paying one-third, and the wife paying her proportionate of the two-thirds of the tuition costs.
Maggie
57Maggie is over the age of majority and in her 3rd year of her undergraduate degree. Given that she is in post-secondary school full-time, she remains a child of the marriage as defined in the Divorce Act and is unable to withdraw from parental charge due to her full-time studies. However, unliked Ceilidh, Maggie does not reside at home with the wife on a full-time basis. She has rental accommodation in St. Catharine’s. This particular academic year, 2020-2021, has been very different from all other years, in that given many university courses are only offered on-line, many university-aged children are residing at home with their families, instead of living in their university-rented premises. Regardless, Maggie’s rental costs continue to be paid to maintain her university housing. It is possible that Maggie could have made arrangements to offset her rental costs by sub-letting her room. However, no evidence was led about that. Further, the evidence is not clear how much time Maggie spends away at school and at home, just that she goes back and forth. The husband proposes that Maggie’s housing costs ought to have been paid by the RESP. If permitted, it makes perfect sense that her housing costs be covered by the RESP. Given the fact that Maggie needs to continue to have extensive dental treatment and there is only one month left of classes, followed by exams in April, I find that it would be appropriate for the husband to pay table child support for Maggie commencing March 1, 2021. However, when Maggie resumes classes in September 2021, the table child support for her shall not be payable for the months that she is away at school, namely, from September through to and including April.
58In terms of Maggie’s s.7 expenses, she has extensive uninsured dental expenses which clearly qualify as s.7 expenses under the Guidelines. Additionally, Maggie has a vehicle to enable her to travel back and forth between school and home. On the evidence before me, I do not find that Maggie’s car lease costs are necessary in her best interests and/or reasonable given the uncertainty of the husband’s current income. The husband shall pay his proportionate share of Maggie’s uninsured dental expenses, and her car insurance as s.7 expenses, upon receipt by the wife of all invoices. He shall also pay his proportionate share of Maggie’s rent if her housing expenses cannot be paid out of the family RESP. It may be that at trial, evidence will be presented demonstrating that the husband did earn his special bonus of $100,000 and his base salary did increase by $50,000 in 2021, as per the BDO Offer Letter and in those circumstances, Maggie’s car lease costs may well be a necessary and reasonable s.7 expense, for which the wife can apply retroactively.
William
59William is in high school and entitled to table child support under the Guidelines. His s.7 expenses have reduced considerably during the pandemic and his training costs of $700 a month, are reasonable given the high-level hockey he was playing to ensure that he remains able to continue to play hockey at the same level when the restrictions relating to the Covid-19 health crisis lift. Commencing March 1, 2021, the husband shall pay temporary table child support for William, along with his proportionate share of William’s s.7 expenses, including his training costs, upon receipt by the wife of all invoices.
60When William commences university in the Fall of 2021, the parties shall utilize the family RESP to pay for his university-related expenses, such as tuition, residence costs, and books. Any expenses that are not covered by the RESP shall be shared proportionately by the parties as s.7 expenses. If William attends university away from home and does not reside with the wife, then pending the trial, there shall be no temporary table child support paid by the husband to the wife for the months that he is away at school. Table child support pursuant to the Guidelines will be payable for the summer months from May to August, inclusive, assuming William returns to Toronto after his first year of university. However, the husband shall be obliged to contribute toward William’s s.7 expenses for the entirety of the academic year.
The Applicable Statutory Framework Spousal Support
61The legislation which applies to the issue of temporary spousal support in this case is the Divorce Act. Sections 15.2(1) and (2) of the Divorce Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable, as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(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 secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
62Section 15.2(4) of the Divorce Act directs the court hearing a spousal support claim to take into consideration “the condition, means needs and other circumstances of each spouse,” including:
a. The length of time the spouses cohabited;
b. The functions performed by each spouse during cohabitation; and
c. Any order, agreement or arrangements relating to support of either spouse.
63Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order as follows:
Objectives of Spousal Support Order
15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
64Section 15.2(5) establishes the principle that misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Divorce Act.
Analysis – Temporary Spousal Support
65The legislative criteria under the Divorce Act for granting temporary spousal support orders is identical to those relating to a final spousal support order. However, the case law dealing with motions for temporary spousal support have identified the following additional general principles that apply:
a. The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial. 2
b. In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay. 3
c. The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge. 4
d. The primary goal of interim spousal support is to provide income for dependent spouse from the time the proceedings are commenced until the trial. 5 Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial. 6
e. Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. 7 The objective of encouraging self sufficiency is of less importance. 8
Entitlement and Quantum
66The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the context of the Divorce Act in the cases of Moge v. Moge 9 and Bracklow v. Bracklow. 10 In Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in Moge and Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind three conceptual models upon which entitlement to spousal support may arise. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. 11 Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage; Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, July 2008), at p. 9.
67The issue of quantum of spousal support must be determined taking into consideration the factors and objectives set out in section 15.2 of the Divorce Act. However, the advent of the Spousal Support Advisory Guidelines (“SSAGs”) has provided considerable assistance in addressing these issues. In Fisher v. Fisher, 2008 ONCA 11, 12 the Ontario Court of Appeal held that although the SSAGs are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”; Fisher, Supra, at para. 96. The court further held that “when considered in their entirety and subject to their limitations, the SSAGs also assist in informing an appellate standard of review.”; Fisher, ibid, at para. 102. While the SSAGs are not binding, they provide a valuable litmus test for assessing both the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
68The SSAGs have been relied upon as an ideal tool to assist motions judges on temporary spousal support motions. 13
69The authors of the SSAGs emphasize that the formulas are intended to generate appropriate outcomes in the majority of typical cases, and acknowledge that there are atypical cases in which the formulas and outcomes do not necessarily yield results that are consistent with the support factors and objectives set out in section 15.2 of the Divorce Act. 14 For this reason, the authors carved out a number of categories of exceptions from the ranges for amounts and durations for spousal support.
70The most significant exception under the SSAGs for the purpose of temporary spousal support motions is the exception for compelling financial circumstances in the interim period. The authors recognized that when spouses separate, the parties’ affairs often remain intertwined, with one of the other assuming a disproportionate amount of debts and/or expenses that cannot be reduced. Often, this predicament can be alleviated when property issues are resolved at a later stage in the litigation, relieving the financially burdened spouse of economic hardship. The SSAGs recognize an exception for cases where the payor has compelling financial circumstances in the interim period which impact on their ability to pay; SSAGs, pp. 116-117.
Imputation of Income:
71One of the significant factors in assessing the parties’ respective condition, means needs and circumstances is their income. In this case, the husband has argued that income should be imputed to the wife for the purposes of the temporary spousal support calculation.
72The principles that apply in determining whether to impute income are the same in both child support and spousal support cases. 15 The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:
Imputing income
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
73The list of circumstances set out in section 19 provides a useful summary of when it may be appropriate to consider imputing income in spousal support cases. This list is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. 16 The onus is on the party requesting the court to impute income to establish the grounds for this request. 17
74The husband suggests in this case that the wife is intentionally unemployed, in that she has made insufficient efforts to secure employment to contribute to her own support. The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart support obligations. A party is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court is required to consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity. 18
75The court may impute income to a party in the context of a motion for temporary spousal or child support, but should exercise caution in doing so having regard for limitations on the court’s ability in the context of a motion to obtain a complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households. However, the decision as to whether or not income should be imputed ultimately remains in the discretion of the motions judge and depends on the particular facts of each case. Income may be imputed to a recipient spouse in cases involving a clear refusal to work or clearly insufficient efforts on their part to contribute to their expenses during the interim period.
76I have considered all of the noted principles in reviewing the evidence in this case, and I conclude that the wife has made out a prima facie case for the spousal support order she is requesting at this time.
77Dealing with entitlement, the evidence before me supports the conclusion that there is a triable issue on the question of entitlement. There is ample evidence to support that the wife is entitled to spousal support both on a needs and compensatory basis. The parties had a 23-year marriage. The evidence is clear that the wife has been out of the work force for 17 years and the husband was the primary financial provider for the family. Further, it appears that the wife was the primary caregiver for all three children. I am also satisfied based on the evidence before me that the wife has a clear need for financial assistance. I have considered the principle that need should be considered taking into account the parties’ standard of living during the course of their relationship. The husband’s income in 2020, on his own evidence was $430,835. However, he deposes that his current, 2021, income is $226,800 a year. I calculated his income for 2021 to be, at its lowest, $253, 224 because the husband neglected to add the last two PVA payments from RSM that he received in January and February 2021. If we assume that BDO will pay him the 25% holdback from his base draw in 2020, in March or April, 2021, as per the BDO Offer Letter, then, on the husband’s calculations his income for support purposes ought to be $303,124, as opposed to the $226,800, he predicts.
78However, there is no letter or memo from BDO, or any objective third-party evidence, for that matter, that verifies the husband’s predictions that BDO may defer or eliminate paying the remaining 25% of his 2020 base salary to him, other than the fact that the husband deposes that based on conversations he has had with firm management, he expects BDO to defer or eliminate the 25% payment in 2020. One would expect if the husband had learned this information from discussions he had with firm management, that he would have asked firm management to confirm this information by way of an email, a memorandum or letter. He did not.
79The BDO Offer Letter is the only objective third-party evidence before the Court that sets out the husband’s expected income. While I accept that the husband has deposed he did not meet targets in 2020 and he will not receive his bonus, surely someone at BDO could have and should have verified this information. It was his onus to provide the Court with proof that he was not going to be paid in accordance with the BDO Offer Letter. Further, the suggestion that he will not receive the holdback of 25% of his income in March or April 2021, from his 2020 income was also simply just a “suggestion”.
80Based on all of the evidence before me, I find that the husband’s income for support purposes, on which both child and spousal support ought to be based is $400,000, as set out in the BDO Offer Letter for 2020. I am prepared to accept that BDO may not have increased the husband’s base salary from $300,000 to $350,000 in 2021. This temporary order for child and spousal support is being made on a without prejudice basis for the wife to seek a retroactive adjustment at trial. If it turns out that the husband’s income in 2021 was $450,000, then she will be entitled to a retroactive adjustment at trial. Likewise, if the husband’s “predictions” are correct and he does not receive his bonus or the 25% hold back of his income, then he will be entitled to a retroactive adjustment at trial.
81In addressing the issue of need, I have considered the husband’s claim that the wife should be imputed income at this time. While I agree that the wife must make efforts at this point to find an income source or to devise a future plan so as to contribute to her financial needs, I decline to impute income to her at this juncture. This was a long-term relationship, and I am satisfied on the evidence before me that the wife has taken steps to find some employment. In determining the issues of whether income should be imputed to the wife, there is no evidence before me to suggest that the wife has developed any significant job skills. A review of the evidence is that her training as a legal secretary was over 20 years ago. Given the length of the marriage, the nature of the role which she assumed during the marriage, her educational and work background and her responsibilities towards the children, she will require a reasonable amount of time to formulate and implement a plan to achieve greater financial independence.
82I am satisfied that the wife has made reasonable efforts to date to retrain and seek means of supporting herself. Her plan to complete a funeral director course is a solid plan, if she chooses, to pursue that course.
83The husband has also submitted that the wife is not entitled to receive temporary spousal support because she has the capital from the net cottage proceeds and she ought to be investing these funds and earning income from this investment. However, as noted by the husband, the wife will owe him an equalization payment and therefore, these proceeds cannot be invested by the wife on a long-term basis on which she will be able to earn an income. I turn to the issue of quantum of spousal support pending trial.
84I have considered the ranges produced by applying the SSAGs. Using the figure of $400,000 for the husband’s income, and no income for the wife, based on my analysis of child support above, the husband will be obliged to pay table child support to the wife commencing March 1, 2021 and on the first day of each following month until September 1, 2021, in the sum of $5,077 a month for both Maggie and William. Assuming that as s.7 expenses, there is a remaining $15,000 to pay toward Maggie’s uninsured dental expenses and William’s personal training expenses of $700 a month continue to be incurred, then applying the “With Child Formula,” the resulting monthly spousal support ranges are $7,148 (low), $7,983 (mid) and $8,921 (high). Given the length of the relationship, the roles adopted during marriage, the high costs of the children at this time, the wife’s sole care-giving role and her limited relevant education and job skills at this point, a temporary award of spousal support somewhere between the mid to high range would be appropriate, which I calculate to be $8,452 a month. With these levels of child and spousal support, on a temporary basis, the husband’s proportionate responsibility toward the children’s s.7 expenses would be 74.6% and the wife’s proportionate responsibility would be 25.4%. A support mate calculation is attached to these Reasons at Tab “A”.
85Once Maggie returns to University at Brock in September and assuming William attends University out of town, such that he is no longer residing with the wife, then the husband monthly child support obligation would be reduced, such that he would be paying child support for both children for the summer months only (May to August, inclusive). This will then adjust the spousal support. Although this is a temporary child and spousal support order, a) given the shortage of court resources due to the Covid-19 pandemic and b) the known and certain events that will happen in the immediate future, it makes sense to address the change in the husband’s temporary child and spousal support obligations beginning on September 1, 2021.
86Accordingly, based on an assumption that both Maggie and William will be away from home to attend University in September 2021 and, therefore, only entitled to child support for the summer months, the husband’s monthly child support would be $1,692 a month commencing September 1, 2021, as it is annualized. Applying the “With Child Formula”, the resulting monthly spousal support ranges are $10,032 (low); $11,226 (mid); and $12,430 (high). Again, given the length of the relationship, the roles adopted during marriage, the high costs of the children at this time, the wife’s limited relevant education and job skills at this point, an award somewhere between the mid to high range would be appropriate. By my calculation, that would amount to $11,828 a month in temporary spousal support, to commence September 1, 2021. With these levels of child and spousal support, the husband’s proportionate responsibility toward the children’s s.7 expenses would be 64.5% and the wife’s proportionate responsibility would be 35.5%. A support mate calculation is attached to these Reasons at Tab “B”.
Conclusion and Order
87Based on the foregoing, an order shall issue as follows:
a. Pursuant to s.15.1 of the Divorce Act, commencing on March 1, 2021, and on the first day of each following month until September 1, 2021, the respondent, Joseph Gavin MacInnis, shall pay to the applicant, Heather Liddell-MacInnis, temporary child support for Maggie MacInnis, born May 25, 2000 and William MacInnis, born April 14, 2003, in the sum of $5,077 a month, based on an income attributed to the respondent of $400,000.
b. Pursuant to s.15.1 of the Divorce Act, commencing on March 1, 2021, and on the first day of each following month until September 1, 2021, the respondent, Joseph Gavin MacInnis, shall, on a temporary basis, pay his proportionate share of the three children’s s.7 expenses, in the percentage of 74.6%, upon receipt by him of the invoices for such expenses, from the wife. The following expenses are s.7 expenses to which both parties shall contribute:
i. Two-thirds of Ceilidh’s tuition costs at the University of Guelph-Humber, if these costs cannot be paid for out of the Family RESP;
ii. Maggie’s uninsured dental expenses, including her wisdom teeth surgery;
iii. Maggie’s car insurance costs;
iv. Maggie’s rent in St. Catharine’s while she attends Brock University, if her housing expenses cannot be paid for out of the Family RESP;
v. William’s personal training expenses; and
vi. William’s uninsured medical and dental expenses.
c. Pursuant to s.15.2 of the Divorce Act, commencing on March 1, 2021, and on the first day of each following month until September 1, 2021, the respondent, Joseph Gavin MacInnis, shall pay the applicant, Heather Liddell-MacInnis, temporary spousal support in the sum of $8,452 a month, being the mid-point between the mid- and high-range of the Spousal Support Advisory Guidelines.
d. Pursuant to s.15.1 of the Divorce Act, commencing on September 1, 2021, and on the first day of each following month until further court order, the respondent, Joseph Gavin MacInnis, shall pay to the applicant, Heather Liddell-MacInnis, temporary child support for Maggie MacInnis, born May 25, 2000 and William MacInnis, born April 14, 2003, in the sum of $1,692 a month, which is for both Maggie and William in the summer months only, annualized. This temporary child support amount is based on the respondent being attributed with an income of $400,000.
e. Pursuant to s.15.1 of the Divorce Act, commencing on September 1, 2021, and on the first day of each following month until further court order, the respondent, Joseph Gavin MacInnis, shall, on a temporary basis, pay to the applicant, Heather Liddell-MacInnis, his proportionate share of the three children’s s.7 expenses, in the percentage of 64.5%, upon receipt by him of the invoices for such expenses, from the wife. The following expenses are s.7 expenses to which both parties shall contribute:
i. Two-thirds of Ceilidh’s tuition costs at the University of Guelph-Humber, if these costs cannot be paid for by the Family RESP;
ii. Maggie’s uninsured dental expenses, including her wisdom teeth surgery, if there are any such expenses remaining;
iii. Maggie’s car insurance costs;
iv. Maggie’s rent in St. Catharine’s while she attends Brock University, if her housing expenses cannot be paid for out of the Family RESP;
v. William’s post-secondary expenses, not covered by the Family RESP;
vi. William’s hockey-related expenses, if any; and
vii. William’s uninsured medical and dental expenses.
f. Pursuant to s.15.2 of the Divorce Act, commencing on September 1, 2021, and on the first day of each following month until further court order, the respondent, Joseph Gavin MacInnis, shall pay to the applicant, Heather Liddell-MacInnis, temporary spousal support in the sum of $11,828 a month.
g. Pursuant to s.24(1)(e) of the Family Law Act, commencing March 1, 2021, the parties shall be jointly responsibility for the monthly mortgage and related expenses. Including house insurance, property taxes, subject to reapportionment.
h. The temporary child support ordered is without prejudice to either party seeking a higher or lower amount at trial, retroactive to the date of this order.
i. The temporary spousal support ordered is without prejudice to either party seeking a higher or lower amount at trial, retroactive to the date of this order.
j. The wife’s claim to retroactive child and spousal support for the period of April 1, 2020 to the date of this order, shall be adjourned to be dealt with by the judge hearing the trial of this matter.
k. Pursuant to s.15.1(4) of the Divorce Act, the respondent, Joseph Gavin MacInnis, shall maintain the applicant, Heather Liddell-MacInnis as the irrevocable beneficiary of his life insurance policy with a face value of not less than $500,000 and maintain the policy of life insurance in good standing until further order of the court;
l. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
m. This order bears post judgment interest at the rate of per annum, effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
n. A Support Deduction Order shall issue.
o. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions of no more than 3 written page, not inclusive of Bill of Costs or Offers to Settle, within 20 days. Any reply submissions shall be no longer than 1 written page and shall be served and filed within 7 days of the receipt of the other’s party’ cost submissions.
M. Kraft, J. Date Released: March 9, 2021
1 The wife filed a Notice of Motion, dated December 7, 2020; her affidavit, sworn on December 7, 2020; her affidavit, sworn on December 14, 2020; her affidavit, sworn on February 19, 2021; her affidavit, sworn on March 1, 2021; her financial statement, sworn on February 17, 2021; her Factum, dated December 15, 2020, and her supplementary Factum, dated March 4, 2021. In response to the wife’s motion, the husband filed his affidavit, sworn on December 11, 2020; his affidavit, sworn on February 25, 2021; his financial statement, sworn on February 25, 2021, and his Factum, dated March 4, 2021.
2 Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (S.C.J.); Kowalski v. Grant, 2007 MBQB 235, 2007 CarswellMan 422 (Man. Q.B.); Charbonneau v. Charbonneau, 2004 CarswellOnt 5211 (Ont. S.C.J.); Robles v. Kuhn, 2009 BCSC 1163, 2009 CarswellBC 2239 (B.C. Master); Brown v. Brown, 2004 CarswellBC 231 (S.C.)
3 Damaschin-Zamfirescu, supra; Belcourt v. Chartrand, 2006 CarswellOnt 2272 (Ont. S.C.J.); Gerlitz v. Gerlitz, 2005 CarswellAlta 1841 (Alta. C.A.), reversing in part 2005 CarswellAlta 1240 (Alta. Q.B.); Prikker v. Vaine, 2010 CarswellOnt 7125 (S.C.J), additional reasons at 2010 CarswellOnt 7126 (S.C.J.).
4 Damaschin-Zamfirescu, Supra; Kowalski v. Grant, 2007 MBQB 235, 2007 CarswellMan 422 (Man. Q.B.); Noonan v. Noonan, 2006 CarswellPEI 48 (T.D.), reversed 2007 CarswellPEI 17 (C.A.); Bater v. Bater, 2006 CarswellOnt 4107 (S.C.J.); Gonzalez v. Ross, 2007 CarswellOnt 753 (S.C.J.).
5 Damaschin-Zamfirescu, 2012, Supra.; Kowalski v. Grant, 2007, Supra.
6 Damaschin-Zamfirescu, 2012, Supra. Kowalski v. Grant, Ibid.
7 Damaschin-Zamfirescu, 2012, Supra. Lila v. Lila, 1986 CarswellOnt 294 (Ont. C.A.); Kowalski v. Grant, Ibid.; Robles v. Kuhn, 2009 BCSC 1163, 2009 CarswellBC 2239 (B.C. Master).
8 Damaschin-Zamfirescu, 2012, Supra. Robles v. Kuhn, Ibid.; Ridgeway-Firman v. Firman, 1999 CarswellOnt. 1201 (Ont. Gen. Div.).
9 Moge v. Moge, (1992), 43 R.F.L. (3d) 345 (S.C.C.).
10 Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.).
11 Moge v. Moge, Supra., paras. 68-70.
12 Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.).
13 M. (D.R.) v. M. (R.B.), 2006 BCSC 1921, 2006 CarswellBC 3177 (B.C.S.C.); Decker v. Fedorsen, 2011 CarswellOnt 9891 (Ont. C.J.); Zdrill v. Zdrill, 2011 CarswellOnt 2886 (Ont. S.C.J.).
14 Spousal Support Advisory Guidelines, Supra., p. 116.
15 Rilli v. Rilli, 2006 CarswellOnt 6335 (Ont. S.C.J.); Perino v. Perino, 2007 CarswellOnt 7171 (Ont. S.C.J.); Decker v. Fedorsen, Supra.
16 Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (Ont. C.A.); Riel v. Holland, [2003] O.J. No. 3901, 67 O.R. (3d) 417 (Ont. C.A.).
17 Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (Ont. C.A.), additional reasons 2009 Carswell Ont 3112 (Ont. C.A.); Drygala v. Pauli, 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons , 2003 CarswellOnt17 (Ont. C.A.).
18 Drygala v. Pauli, Ibid; Lawson v. Lawson, 2006 CarswellOnt 4789 (Ont. C.A.).
Joseph Male, 51, Resident of ON ncome Liddell - Macinnis: $400K for H; $0 for W; 2 children Table Prepared by: March 8 2021 Cautions/Overrides Child Support (Table) - Child(ren) the age of majority or over; CSG Table Amount may be inappropriate
Self-employment income (net) (Based on BOO Offer Letter) 400,000 Child Support (Table) - Joseph's ncome over $150,000; CSG Table Amount may be inappropriate.
Heather Female, 0, Resident of ON Special Expenses (s.7) SSAG - Joseph's ncome over $350,000; SSAG may not apply
Child's portion of medical expenses (Maggie's dental expenses) Extraordinary extracurricular expenses ( illiam's training) 15,000 8,400
Children Age Lives with Table Amt Claimed by Ceilidh 22 Heather No N/A Maggie 20 Heather Yes N/A William 17 Heather Yes Heather Youngest child finishes high school 1 year from the date of separation. Dependant credit claimed by Heather. Child Support (s.7 Payment) See Support Scenarios Spousal Support Advisory Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 0 years Recipient's age at separation: 0 years "With Child Support" Formula
Required input for duration: Length of Marriage and Age of Recipient at Separation SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.
Support Scenarios Monthly $ A SSAG Low B SSAG Mid C SSAG High Joseph Heather Joseph Heather Joseph Heather Gross ncome 33,333 0 33,333 0 33,333 0 Taxes and Deductions (11,157) (1,338) (10,710) (1,612) (10,208) (2,001) enefits and Credits 0 219 0 192 0 162 Special Expenses (s.7) 0 (1,950) 0 (1,950) 0 (1,950) Spousal Support (7,148) 7,148 (7,983) 7,983 (8,921) 8,921 Child Support (Table) (5,077) 5,077 (5,077) 5,077 (5,077) 5,077 Child Support (s.7 Payment) (1,533) 1,533 (1,482) 1,482 (1,427) 1,427 Net Disposable ncome (ND ) adult in household child in household shared/summer child in household Payor's ND /Contribution ercent of i 8,418 44 1 10,689 55 9 8,081 42 0 11,172 58 0 7,700 11,636 39 8 0 2 CSG Special Expenses Apportioning % 78.6% 21.4% 76.0% 24.0% 73.2% 26.8% After-tax Cost/ enefit of Spousal Support (3,322) 5,773 (3,710) 6,334 (4,146) 6,882 v. 2021.1.19 (c) 2021 DivorceMate Software nc. Page 1 of 2
$400K for H; $0 for W; 2 children Table I March 8 2021 Support Scenarios Monthly $ $8,452 Spousal Joseph Heather Gross ncome 33,333 0 Taxes and Deductions (10,459) (1,798) enefits and Credits 0 177 Special Expenses (s.7) 0 (1,950) Spousal Support (8,452) 8,452 Child Support (Table) (5,077) 5,077 Child Support (s.7 Payment) (1,455) 1,455 Net Disposable ncome (ND ) adult in household child in household shared/summer child in household Payor's ND /Contribution ercent of i 7,890 40 9 11,413 59 1 CSG Special Expenses Apportioning % 74.6% 25.4% After-tax Cost/ enefit of Spousal Support (3,928) 6,617 v. 2021.1.19 (c) 2021 DivorceMate Software nc. Page 2 of 2
Liddell - Macinnis: $400K for H; $0 for wife; 2 children summer only Prepared by: March 8 2021 Cautions/Overrides
Joseph Male, 51, Resident of ON ncome Child Support (Table) - CSG Table Amount payable for child(ren) during 4 summer months only
Self-employment income (net) (Based on BOO Offer Letter) 400,000 Child Support (Table) - Child(ren) the age of majority or over; CSG Table Amount may be inappropriate
Heather Female, 49, Resident of ON Special Expenses (s.7) SSAG - Joseph's ncome over $350,000; SSAG may not apply
Child's portion of medical expenses (remaning dental costs for Maggie) Extraordinary extracurricular expenses ( illiam training) 15,000 8,400
Children Age Lives with Table Amt Claimed by Ceilidh 22 Heather No N/A Maggie 20 Heather Summer N/A William 17 Heather Summer Heather Youngest child finishes high school 1 year from the date of separation. Dependant credit claimed by Heather. Child Support (s.7 Payment) See Support Scenarios Spousal Support Advisory Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 0 years Recipient's age at separation: 49 years "With Child Support" Formula
Required input for duration: Length of Marriage SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.
Support Scenarios Monthly $ A SSAG Low B SSAG Mid C SSAG High Joseph Heather Joseph Heather Joseph Heather Gross ncome 33,333 0 33,333 0 33,333 0 Taxes and Deductions (9,614) (2,484) (8,974) (3,002) (8,330) (3,525) enefits and Credits 0 126 0 88 0 50 Special Expenses (s.7) 0 (1,950) 0 (1,950) 0 (1,950) Spousal Support (10,032) 10,032 (11,226) 11,226 (12,430) 12,430 Child Support (Table) (1,692) 1,692 (1,692) 1,692 (1,692) 1,692 Child Support (s.7 Payment) (1,363) 1,363 (1,293) 1,293 (1,223) 1,223 Net Disposable ncome (ND ) adult in household child in household shared/summer child in household Payor's ND /Contribution ercent of i 10,632 4 8,779 4 2 10,148 2 1 9,347 4 9 9,658 9,920 49 3 0 CSG Special Expenses Apportioning % 69.9% 30.1% 66.3% 33.7% 62.7% 37.3% After-tax Cost/ enefit of Spousal Support (4,662) 7,511 (5,217) 8,187 (5,776) 8,868 v. 2021.1.19 (c) 2021 DivorceMate Software nc. Page 1 of 2
$400K for H; $0 for wife; 2 children summer only I March 8 2021 Support Scenarios Monthly $ $11, 2 Spousal Joseph Heather Gross ncome 33,333 0 Taxes and Deductions (8,652) (3,263) enefits and Credits 0 69 Special Expenses (s.7) 0 (1,950) Spousal Support (11, 2 ) 11, 2 Child Support (Table) (1,692) 1,692 Child Support (s.7 Payment) (1,2 ) 1,2 Net Disposable ncome (ND ) adult in household child in household shared/summer child in household Payor's ND /Contribution ercent of i 9,903 0 9,634 49 3 CSG Special Expenses Apportioning % 64.5% 35.5% After-tax Cost/ enefit of Spousal Support (5,496) 8,527 v. 2021.1.19 (c) 2021 DivorceMate Software nc. Page 2 of 2
