Cassidy v. McNeil

99 O.R. (3d) 81

Court of Appeal for Ontario,

Feldman, Lang and MacFarland JJ.A.

March 23, 2010

Family law -- Costs -- Trial judge dismissing husband's claim for retrospective periodic and s. 7 child support and wife's claim for retrospective spousal support -- Trial judge ordering wife to pay prospective child support and ordering husband to pay prospective spousal support -- Trial judge ordering husband to pay wife's costs fixed at $24,590.35 -- Husband's appeal from costs order dismissed -- Trial judge not erring in finding that wife was successful party -- Fact that husband was custodial parent not absolving him from costs disposition -- Amount of costs not excessive.

Family law -- Support -- Child support -- Husband having de facto custody of children after separation -- Parties having informal arrangement whereby wife made financial contributions directly to children and husband did not pay spousal support -- Trial judge not erring in taking wife's contributions to children's expenses under s. 7 of Guidelines into consideration where wife did not plead set-off -- Trial judge's reference to husband's claim for child support as "retroactive" rather than "retrospective" not showing misapprehension of nature of claim -- Trial judge not placing onus on husband to show that wife had failed to meet her child support obligations -- Trial judge not erring in taking parties' informal agreement to maintain status quo into account in declining to award retrospective child support.

Family law -- Support -- Spousal support -- Trial judge ordering husband to pay wife prospective spousal support of $1,200 per month for five years on basis of need -- Trial judge erring in focusing solely on wife's need -- Wife nevertheless entitled to spousal support as she subordinated her career to husband's and parties' expectations and interdependency evolved over 23 years of marriage into economic merger of their interests -- Time-limited support not warranted -- Trial judge erring in awarding support at high end of range in Spousal Support Advisory Guidelines -- Spousal support varied to $950 per month, payable indefinitely.

When the parties separated after 23 years of marriage, the husband was a tenured professor and the wife taught at a private school on a contract basis. The parties' three children (two sons who were attending university and a daughter in elementary school) resided with the husband. The wife did not pay child support, but made financial contributions directly to the children. The husband did not pay spousal support. The husband applied for retrospective and prospective child support, and the wife sought retrospective and prospective spousal support. At the time of the trial, the husband was earning $137,000 per annum and the wife was earning $85,000 per annum. The trial judge ordered the wife to pay prospective child support for the daughter of $759 monthly. He dismissed the husband's claim for retrospective periodic child support and retrospective expenses under s. 7 of the Child Support Guidelines, O. Reg. 391/97 and dismissed the wife's claim for retrospective spousal support. He ordered the husband to pay the wife prospective spousal support of $1,200 monthly for five years. He ordered the husband to pay the wife's costs fixed at $24,590.35. The husband appealed and the wife cross-appealed. [page82 ]

Held, the appeal and cross-appeal should be allowed in part.

The trial judge did not err in setting off the wife's contributions to the sons' s. 7 expenses when the wife did not plead set-off. The wife had made it clear that her position was that her contributions offset any claim for retrospective child support, and there was no evidence that the husband suffered any surprise or prejudice from any technical deficiency in the wife's Answer. The trial judge's reference to the husband's claim for child support as "retroactive" rather than "retrospective" was not indicative of a misapprehension of the nature of the claim. The case was not about the wife's obligation, which was apparent, but about whether she met that obligation. In concluding that she did so, the trial judge was entitled to take into account the parties' informal post- separation agreement to maintain the status quo. The trial judge did not place an onus on the husband to prove that the wife had failed to meet her child support obligations.

In awarding the wife prospective spousal support, the trial judge erred in focusing solely on her need. However, there was sufficient evidence in the record to conclude that the wife had established the necessary prerequisite of entitlement. She had subordinated her career to that of her husband. Over their 23 years of marriage, the parties' expectations and interdependency had evolved into an economic merger of their interests. Given the economic merger between the parties, the uncertainties surrounding the wife's employment and the husband's security of employment, a time-limited spousal support order was not warranted. The trial judge erred in awarding spousal support at the high end of the Spousal Support Advisory Guidelines range in light of the husband's continuing obligations for their daughter and the wife's relatively high level of income. The spousal support order was varied to $950 per month, payable indefinitely.

In awarding costs, the trial judge did not err in finding that the wife was successful at trial. The husband was not absolved from a costs disposition simply because he was the custodial parent, particularly where the child's best interests would not be negatively affected. The costs award was not excessive.

APPEAL AND CROSS-APPEAL from the orders of Borkovich J., [2008] O.J. No. 112, 163 A.C.W.S. (3d) 289 (S.C.J.) awarding child and spousal support, and the costs order.

Cases referred to Calvert v. Stewart, [2009] O.J. No. 528 (S.C.J.), distd Other cases referred to Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 188 O.A.C. 201, 48 C.P.C. (5th) 56, 132 A.C.W.S. (3d) 15 (C.A.); Fisher v. Fisher (2008), 88 O.R. (3d) 241, [2008] O.J. No. 38, 2008 ONCA 11, 232 O.A.C. 213, 163 A.C.W.S. (3d) 432, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235; Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, 172 D.L.R. (4th) 577, 240 N.R. 312, [1999] 8 W.W.R. 485, J.E. 99-1206, 138 Man. R. (2d) 40, 46 R.F.L. (4th) 1, REJB 1999-12847, 88 A.C.W.S. (3d) 1044; Islam v. Raham, [2007] O.J. No. 3416, 2007 ONCA 622, 228 O.A.C. 371, 41 R.F.L. (6th) 10, 160 A.C.W.S. (3d) 496; M. (C.A.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181, [2003] O.J. No. 3707, 231 D.L.R. (4th) 479, 176 O.A.C. 201, 43 R.F.L. (5th) 149, 125 A.C.W.S. (3d) 650 (C.A.); R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 79 W.C.B. (2d) 321, 297 D.L.R. (4th) 577; S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37, 270 D.L.R. (4th) 297, 351 N.R. 201, [2006] 10 W.W.R. 379, J.E. 2006-1543, 61 Alta. L.R. (4th) 1, 391 A.R. 297, 31 R.F.L. (6th) 1, 149 A.C.W.S. (3d) 626, EYB 2006-108061 Statutes referred to Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(4), (6) [page83 ] Rules and regulations referred to Child Support Guidelines, O. Reg. 391/97, ss. 3, 7 [as am.] Family Law Rules, O. Reg. 114/99, rules 24(1), (10), (11), (f) Authorities referred to Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008)

Patrick D. Schmidt and Joanna Harris, for appellant/ respondent by way of cross-appeal. Gerald P. Sadvari, for respondent/appellant by way of cross- appeal.

The judgment of the court was delivered by

[1] LANG J.A.: -- The appeal and cross-appeal challenge the child and spousal support awarded by the trial judge, as well as his disposition of costs.

[2] The trial judge ordered the respondent wife, Carol McNeil, to pay child support to the appellant husband, Daniel Cassidy, for the support of their then 15-year-old daughter, Louise, in accordance with the Child Support Guidelines, O. Reg. 391/97 ("Guidelines"). Based on his finding that the wife earned $85,000 per annum, he fixed the amount of support at $759 monthly, beginning in January 2008. In addition, the trial judge ordered the parties to share future special or extraordinary expenses under s. 7 of the Guidelines in proportion to their respective incomes. The husband was apparently earning approximately $137,000 at the time of trial.

[3] The trial judge dismissed the husband's claim for retrospective periodic and s. 7 child support, including his claim for support for the parties' other two children, Jeffery and Thomas, both of whom had completed their undergraduate studies by the time of trial. The trial judge also dismissed the wife's claim for retrospective spousal support. However, he ordered the husband to pay the wife prospective spousal support of $1,200 monthly for a limited term of five years. After later submissions on costs, the trial judge ordered the husband to pay the wife's costs fixed at $24,590.35.

[4] On appeal, the husband seeks to set aside the order of the trial judge and to substitute an order awarding him child support retrospective to the parties' 2003 separation and dismissing the wife's claim for spousal support. He also seeks an order [page84 ]overturning the trial judge's costs award and awarding him costs of the trial. The wife cross-appeals seeking to increase the amount of spousal support from $1,200 to $2,000 monthly and its duration to 12 years post-trial.

Background

[5] The parties met as undergraduate students at McMaster University in Hamilton and continued their studies at Queen's University, where the husband attained a Masters of Electrical Engineering and the wife a degree in education. The parties married in 1980, when they were both age 24. They separated for the final time 23 years later, in July 2003. At that time, they were 48 years of age. They are now 54 years of age.

[6] When the parties married, the wife was teaching in Picton and the husband was beginning his doctoral studies at McMaster. The wife left Picton to join the husband in Hamilton, where she was able to obtain a full-time teaching position. Two years later, after the husband received his doctorate, the parties moved to Ottawa because the husband had accepted employment in that city. Initially, the wife was able to obtain employment in Ottawa only as a supply teacher, but she later obtained a full- time teaching position at the Canadian Armed Forces Base. The following year, 1983, the parties' first child, Jeffrey, was born. After his birth, the wife hoped to "re-establish" her teaching career. However, she accepted the husband's request to expand their family instead. In 1985, she gave birth to their second child, Thomas. For three years, the wife stayed home to care for the boys.

[7] In 1986, the husband accepted a position at McMaster and the family returned to Hamilton. The wife, who spent the first year setting up the household, expressed an interest in pursuing graduate studies in psychology at McMaster. The husband responded that they "could not afford it". So, instead, the wife supply taught with the Hamilton Public School Board. In 1988, she accepted a part-time teaching position at a private school, which became a full-time contract position in 1990. Apart from a four-month maternity leave when Louise was born in 1992, the wife has continued to teach at the same school.

[8] One of the reasons the parties decided in favour of the wife's position at the private school was because it came with important staff benefits. Those benefits made it possible for all three of the parties' children to attend the school at reduced cost for workplace daycare and then for primary and secondary school.

[9] However, the terms of the wife's employment also meant that she was required to work longer hours than had she taught [page85 ]at a public school. Teachers at the wife's school were and are required to be involved in extensive extracurricular activities outside school hours, including on some weekends. In addition, the wife's employment is not unionized. It is contract employment, renewable annually. The husband holds his position at McMaster on a different basis. He is a tenured university professor.

[10] When both parties worked during the marriage, they each contributed to the family expenses. The wife contributed her earnings as a teacher. Initially, the husband contributed his scholarship funds and his earnings as a teaching assistant and, later, his income as a professor. The husband's employment at McMaster entitled him to benefits, which included reduced tuition for family members. The wife later took advantage of this benefit and returned to school, although she continued to work full-time. By 2002, the year before the parties' separation, the wife had obtained a Bachelor of Arts degree in geography, which enabled her to move from teaching primary school to teaching secondary school. Because she had done so well in her studies, McMaster invited the wife to pursue graduate studies. However, she testified that she "had to" return to work.

[11] Both parties contributed significantly to housework and childcare throughout the marriage. While each testified that they contributed more than the other, the husband acknowledged that he worked long hours to advance his career, particularly in the initial years. He also accepted that the wife remained at home for periods of time to care for the children. Despite these acknowledgments, the husband maintained the position that he assumed a disproportionate share of domestic responsibilities.

[12] The latter years of the parties' cohabitation became increasingly difficult. The parties temporarily separated in both 2001 and 2002. The 2002 separation occurred when the wife was involuntarily hospitalized after she suffered a breakdown. In the midst of her hospitalization, the husband served the wife with an order excluding her from the matrimonial home and restraining her contact with Louise, which he testified he did out of concern for Louise's safety. The husband also served a copy of the order on the principal of the wife's school. Despite this, some time after her discharge from hospital, the wife and the husband made a final unsuccessful attempt to reconcile.

[13] One of the primary tensions leading to the eventual breakdown of the marriage arose from the parties' different perspectives on financial issues. As the trial judge observed, the parties lived a frugal lifestyle. They did so in part to accommodate their children's education and extracurricular activities [page86 ]and in part to pay down their mortgage expeditiously. Nonetheless, the husband and the wife disagreed about financial matters. Increasingly, the wife expressed a desire to achieve some measure of financial independence. In response to her concerns, the husband suggested three options for reorganizing their finances. The wife acceded to the option of the husband's spreadsheet accounting system.

[14] Under this system, the husband meticulously entered the details of all the parties' expenses. At the beginning of each month, the husband presented his spreadsheet to the wife and sought her contribution in an amount proportionate to their respective incomes. After making her payment, the wife was able to spend the balance of her income as she wished. [See Note 1 below]

[15] During one of the parties' separations, the husband removed the wife from his benefits plan. He said he did so because he was unhappy about her conduct, which he testified appeared to him to be a rejection of their marriage. As a result, the wife was required to obtain her own benefits through her school. Unfortunately, her benefit plan provided less coverage than did the husband's plan, which would have caused her increased expense.

[16] In the spring of 2003, the husband asked the wife for a separation. When they separated that July, their first son, Jeffrey, was approaching his second year in engineering at McGill. Their second son, Thomas, would begin his engineering studies at McMaster in September. Louise, then age 11, was in elementary school. The children resided with their father.

[17] By letter dated May 20, 2003, the husband asked the wife to begin paying Guidelines child support effective July 1, 2003. By letter dated October 20, 2003, and pending resolution of Louise's custody, the wife took the position that she intended to pay expenses for the children directly, including through her contributions to their private school tuition. She did so, but paid no periodic child support.

[18] Over the 4.5 years between separation and trial, the husband did not provide the wife with a proposed breakdown or details of the children's s. 7 costs. [See Note 2 below] The wife testified that she did [page87 ]not receive a comprehensive list of the husband's expenses for the children between August 2003 and a few days before trial. Only then did the husband provide a list of expenditures, which he calculated to be $55,749 from the date of separation until November 2007. [See Note 3 below] Even at trial, the husband did not provide a list of the children's costs or explain how those costs had been met during the pre-trial period.

[19] The husband's claim included substantial amounts for the children's medical and dental expenses. Unfortunately, the extent to which the husband was reimbursed for these expenses by his drug plan was not clear. In addition, other expenses were not explained. While the husband listed irregular amounts of "email transfers" to Jeffrey, and listed Jeffrey's monthly charges to the husband's MasterCard account, these figures did not show Jeffrey's overall costs during his university years or his significant contributions to those costs. The wife also challenged the husband's claimed expenses, particularly a trip for Louise to stay with her aunt, as well as certain entertainment expenses.

[20] The boys, who were approximately 20 and 18 years of age at the time of their parents' separation, were able to contribute to their post-secondary education because they earned significant summer incomes. During his university studies, Jeffrey's income included $12,722 in 2004 and $14,655 in 2005. In addition, Jeffrey received revenue from an RESP that his parents had set up before their separation. His mother also apparently gave him an additional $11,500, $6,000 of which came through her Aunt Helen. A paternal uncle also gave Jeffrey $6,000 for his education. Nonetheless, at his graduation, Jeffrey had a line of credit that stood at $17,424.

[21] During his studies at McMaster, Thomas continued to live at home with his father. Although he did not find employment in the summer of 2003, and no evidence was produced about his 2007 income, Thomas earned an average of about $12,000 in the intervening summers. He also received an unspecified amount of funds from his uncle, $2,594.70 from the RESP and a $6,000 contribution from his mother through Aunt Helen. In addition, Thomas was awarded annual bursaries of $3,100. Although the bursaries were a taxable benefit for the husband, they significantly reduced Thomas' annual McMaster tuition from $5,700. After Thomas completed his four-year engineering and business degree in 2007, the wife gave him a further $15,000, which also came through Aunt Helen. Those funds enabled [page88 ]Thomas to take an additional year to obtain his Masters of Business Administration.

[22] In addition, the wife gave Thomas a Blackberry and paid his monthly charges until his MBA graduation. She also contributed toward furnishing an apartment for Thomas the summer he worked in Toronto. The wife testified that she also paid for other expenses for Thomas, which appear to total approximately $2,000.

[23] By 2007, Thomas had a student line of credit, which stood at $10,000. Yet Thomas was able to afford vacations in Europe, the Bahamas, Costa Rica and Vermont during his university studies. Although still in school, Thomas also held investments that he purchased for approximately $13,000. As the trial judge concluded, Thomas chose "to use his own assets to make investments rather than retiring his [student] debt".

[24] At the time of trial, both boys continued to live with their father in the former matrimonial house. Although Thomas has since graduated, and apparently both boys have been employed in jobs commensurate with their advanced education, neither appeared to contribute anything to room and board at the time of trial.

[25] Louise, born in 1992, was 11 years old when her parents separated. She is now 17 years of age and in the final stages of high school. She continues to live with her father and attend the private school where her mother teaches.

[26] Based on her pleadings, the wife assumed the cost of Louise's private school tuition and expenses, which amounted to $13,800 in 2004. In 2005, Louise's basic tuition was $14,870. In 2006 and 2007, the cost of Louise's tuition fell to $5,200 and $6,615, respectively, after Louise was awarded a $5,000 scholarship. The wife paid income tax resulting from her staff tuition discount, which was a taxable benefit, as well as a $700 annual expansion fund fee to the school. The wife also paid for Louise's field trips, books and school expenses in addition to her cellphone expenses, her dance and violin lessons, violin rental and her summer music-camp fees. Finally, the wife contributed $6,000 to Louise from the money that came through Aunt Helen.

[27] Thus, with the husband's apparent tacit consent, the wife made significant s. 7 contributions to or on behalf of the children from the date of separation to trial. The husband did not pay his 60 per cent share of the wife's s. 7 expenditures and the wife did not pay her 40 per cent share of the husband's s. 7 expenditures. Neither did the wife pay periodic child support, which the husband claims would have amounted to approximately $77,000. [page89 ]

[28] Both the husband and the wife still teach. The husband continues to work as a professor at McMaster, where he has the security provided by his tenure. He is also able to work beyond age 65. The husband apparently earned $120,232 in 2004; $131,613 in 2005; $133,754 in 2006; and $137,656.30 in 2007. [See Note 4 below] The wife continues to teach high school on contract, subject to annual review, and without the security provided by tenure or by union protection. The wife apparently earned $83,795 in 2003; $80,350 in 2004; $82,301 in 2005; and $86,416 in 2006. The trial judge found the wife's 2007 income to be $85,000, an amount that is not significantly contested by the husband on appeal.

The Proceedings

[29] In February 2004, seven months post-separation, the husband initiated a seven-page Application. The Application made general claims, including one for child support. The husband's supporting material did not detail past or future s. 7 childcare costs. In June 2004, the wife filed a 25-page detailed Answer, in which she claimed custody of Louise as well as child and spousal support. The wife's Answer listed her claimed contributions to the children's expenses in 2003 and 2004. It also pleaded her position that the boys were essentially self-supporting due to their significant earnings and Thomas' subsidized tuition. The husband filed no Reply to the Answer.

[30] Neither party took any steps to advance either an interlocutory or a final disposition of the support issue. Apart from a 2005 letter in which the husband wrote directly to the wife addressing the children's dental expenses, and also asking for arrears and ongoing child support, nothing happened. In 2006, the parties apparently bifurcated the proceedings and settled certain issues, including the husband's custody of Louise and the transfer of the matrimonial home to the husband. Still, neither party sought interim support. The husband was apparently content to leave matters as they stood with the wife dealing directly with the older children. In turn, the wife did not press her claim for spousal support.

[31] At the beginning of trial, the husband argued that the wife's failure to pay child support meant that his household [page90 ]suffered financially: he had to wear his son's outgrown clothing, drive a ten-year-old van, re-amortize his mortgage and forego necessary repairs to the back deck. The wife testified that her post-separation standard of living was lower than the husband's and that she received financial assistance to meet her needs from Aunt Helen, her late Uncle Leonard and a personal line of credit.

[32] After a three-day trial, the trial judge issued four pages of reasons. He granted the parties' divorce, which was uncontested. He observed that the parties had "no formal arrangement as to custody, child support and spousal support" pending trial. The trial judge also noted the wife's position that she had provided support for the children since the separation, including the $18,000 ($6,000 per child) payment that originated with Aunt Helen. He concluded that the "wife has supported the children and paid her proportional share of the extraordinary expenses from the date of separation to the trial" and that the husband had not "provided a sufficient evidential basis by way of his calculations to demonstrate that the wife has not paid her 40 per cent proportional share of those expenses".

[33] Turning to spousal support, the trial judge properly observed that the husband would have "incurred a disproportionate share of the everyday expenses as the children were living with him". In light of the childcare expenses the husband had assumed, the trial judge observed that the husband had not been in a position to pay spousal support and the wife had not been in need. He dismissed the wife's claim for retrospective spousal support.

[34] The trial judge allowed [at para. 11] the wife's claim for prospective spousal support on the basis that "the [wife] will be paying child support for Louise and as well, her proportional share of the extraordinary expenses". He concluded that the wife had "established a need for spousal support at least during the period until Louise has either completed her education or gone on her own". It seems apparent that the trial judge considered the wife's obligation to pay prospective child support to be more or less offset by the husband's obligation to pay prospective spousal support.

Issues

[35] The appeal challenges the judgment on the basis that the trial judge erred by: (a) setting off the wife's contributions to the boys' s. 7 expenses when the wife did not plead set-off; [page91 ] (b) misapprehending the husband's claim for child support as "retroactive" rather than "retrospective"; (c) improperly placing the burden on the husband to establish that the wife had not paid her proportionate share of s. 7 expenses; (d) awarding prospective spousal support; and (e) awarding costs of the trial to the wife.

Analysis

[36] It appears that the challenge to the wife's pleadings is raised for the first time on appeal. The other grounds of appeal arise largely from the brevity of the trial judge's reasons, which do not elaborate on the foundation for certain aspects of his conclusions. Nonetheless, in my view, the trial judge's reasons, apart from specific areas that I will address separately, meet the purpose of explaining the "why" and the "what" of the result to the litigants and are sufficient for the purpose of appellate review, particularly when considered in the context of the trial record. That record, at least as it is presented to us on the appeal, provides no clarity about the children's overall expenses, the parties' and the children's contributions to those expenses, the tax impact of the applicable deductions and benefits, or the presumptive support suggested by the the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) ("SSAG").

[37] In addition, appellate counsel, who were not trial counsel, are unable to advise what specific claims the parties advanced at trial. No transcript of opening statements or trial argument is provided. If trial counsel gave the trial judge calculations and alternative calculations for support and s. 7 expenses, they were apparently not filed or identified. They certainly are not included in the record before this court. It appears no calculations were given because the trial judge simply ordered child support in accordance with the Guidelines, without specifying a particular figure. It was only later that the trial judgment was amended to insert the specific amount of periodic child support. Viewed in this light, the trial judge's reasons reflect the record presented to him.

[38] I observe that the standard of review precludes an appellate court from interfering with a trial judge's discretionary decision regarding support absent an error in principle, a significant misapprehension of the evidence or unless the order is clearly [page92 ]wrong: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, at para 11.

[39] Furthermore, to the extent that the trial judge's reasons do not adequately explain the result in a particular issue, the context provided by the record is sufficient to permit this court to arrive at an appropriate result without the need to order a new trial with its resulting costs and delay: see R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52.

(a) The pleadings argument

[40] In oral argument on appeal, the husband submitted that the wife's contributions to the boys' s. 7 expenses should not be taken into consideration because the wife's Answer only claimed a proportionate sharing of Louise's expenses and failed to plead set-off for her contributions to the boys' expenses. I would not accept this ground of appeal.

[41] In her Answer, the wife specifically addressed "support for a child(ren) -- other than table amount" and set out in detail her contributions to the children's expenses, including the boys' expenses. From the wife's October 2003 letter, and continuing throughout the pre-trial period, it was clear that she was of the view that her contributions offset any claim by the husband for s. 3 and s. 7 child support. It would also have been obvious to the husband that the wife expected that her contributions to the boys' expenses would be taken into account.

[42] Finally, the husband apparently did not advance any argument of prejudice at trial, an argument that could have been accommodated by an adjournment, if one was necessary. The decision not to raise the argument at trial supports the conclusion that the husband suffered no prejudice. In any event, there is no evidence that the husband suffered either surprise or prejudice from any technical deficiency in the wife's Answer.

(b) Retroactivity

[43] The husband argues that the trial judge wrongly categorized his claim for child support as "retroactive" rather than "retrospective". He argues that, as a result, the trial judge misapprehended the nature of the husband's claim and wrongly placed the burden on him to show entitlement to child support, instead of recognizing the wife's free-standing obligation to pay child support from the time of the husband's demand at separation.

[44] I would not accept this ground of appeal. The "retroactive" language used by the trial judge simply reflected the very language used by the husband's counsel at trial. The same terminology is commonly used by family law counsel and at all levels of [page93 ]courts. Bastarache J. explains the problem at para. 2 of S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37:

The awards contemplated in the present appeals are often termed "retroactive awards" because they involve enforcing past obligations, not ensuring prospective support. Though misleading in the technical sense, I will adopt this terminology in these reasons because it helps identify the tension that underlies such awards. Still, I must observe that these "retroactive" awards are not truly retroactive. They do not hold parents to a legal standard that did not exist at the relevant time: see MacMinn v. MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 A.R. 261 (C.A.). But they are "retroactive" in the sense that they are not being made on a go-forward basis: the parents who owe support (the "payor parents") are being ordered to pay what, in hindsight, should have been paid before. (Citations omitted)

[45] With that background, while references to "retroactive" support may lack precision, the experienced trial judge's use of that term cannot be taken to signal that he misapprehended the nature of the husband's claim or the applicable legal principles.

[46] Moreover, the trial judge's reasons show no misapprehension of the principle that a non-custodial parent has an obligation to pay child support irrespective of a specific demand for a particular payment by the custodial parent.

[47] This case was not about the wife's obligation, which was apparent, but about whether she met that obligation. In his reasons, the trial judge noted the parties had no "formal" pre- trial agreement regarding support. Before trial, the husband, who was represented by counsel, chose not to press for additional interim child support. Instead, he chose to leave the matter between the children and their mother, particularly for the adult boys. Although this issue was not explored on the record, the husband's decision may be explained by the wife's outstanding claim for spousal support. It may be a fair assumption that both parties were counselled by their lawyers to "standstill" on the issues of spousal and child support because a demand by one may well have triggered a demand by the other, or adversely affected other issues outstanding between the parties. In any event, it was open to the trial judge to interpret the parties' conduct as evidence of an informal agreement to maintain the status quo.

[48] Moreover, it did not appear on the record that the children suffered as a result of their parents' arrangements, or that their needs, including private school, and undergraduate and graduate education, were not met from their own resources, as well as from those of the husband and the wife.

[49] Finally, apart from the question of spousal support, a retrospective award of 4.5 years of child support in this case may [page94 ]have entailed hardship for the wife in light of the parties' respective circumstances at the time of trial and the wife's ongoing obligation to pay prospective support for Louise.

[50] In any event, I am not persuaded that the trial judge misapprehended the nature of the relief claimed by the husband or the principles applicable to a determination of the issue of retrospective child support. I would not give effect to this ground of appeal.

(c) Onus

[51] The husband argues that the trial judge improperly placed the onus on him to prove that the wife had failed to meet her ss. 3 and 7 obligations. The husband bases this argument on the trial judge's statement [at para. 5] that the husband had failed to provide an adequate "evidential basis by way of his calculations". I would not accept this ground of appeal.

[52] As I have said, there was no real dispute that the wife was obligated to pay s. 3 child support and her proportionate share of s. 7 expenses. The only real dispute was whether the wife's contributions had adequately met those obligations. At trial, the husband provided his list of s. 7 contributions and argued that they offset the wife's contribution.

[53] Based on the evidence, the trial judge concluded that the wife's contributions were more than sufficient to meet her obligations. His reference to an "evidential basis" meant no more than that the husband's calculations did not persuade him of a contrary result. In particular, the husband did not explain at trial, or earlier, the specifics of the children's expenses or how the children contributed to those expenses from their significant earnings and revenue. Since the husband, and not the wife, was privy to this information, it fell to the husband to establish the baseline of these relevant expenses, specifically the ones that should be shared by the parties. In the circumstances of this case, the husband's list of his contributions, without more, was not sufficient to establish the claim. It was particularly important for the husband to explain the children's expenses and contributions in this case in light of the wife's stated position that the boys were virtually self-supporting.

[54] In accepting that the wife made significant contributions, the trial judge made a factual finding that at least the initial $18,000 of the moneys given through Aunt Helen constituted a contribution by the wife to the children's expenses, and not a gift to the children from Aunt Helen. This finding was open to the trial judge on the evidence, particularly the evidence that Aunt Helen advanced the funds at the wife's request, in effect, as an [page95 ]advance on the wife's inheritance. The trial judge also accepted that the wife paid Louise's tuition and related expenses as well as contributed to the boys' expenses.

[55] Accordingly, I am not persuaded of any error in the reference in the trial judge's reasons to the evidential burden.

(d) Set-off of periodic support

[56] On the husband's calculations, in addition to the s. 7 issue, the wife failed to pay periodic child support of approximately $77,000. The husband argues that the trial judge erred in notionally setting-off retrospective spousal support from the wife's retrospective s. 3 child support obligation. Apart from difficulties with the figure of s. 3 support, the husband's position is fatally flawed in two respects.

[57] First, the husband failed to demonstrate any palpable and overriding error on the part of the trial judge in his implicit conclusion that the wife's contributions, at least to some extent, provided support for the children additional to the wife's proportionate share of s. 7 expenses. This is clear from para. 5 of the trial judge's reasons, where he finds that "the [wife] has supported the children and paid her proportional share of the extraordinary expenses from the date of separation to the trial", and from para. 9, where the trial judge observes that the wife "was helping support the children" and paying "at least" her share of the s. 7 expenses.

[58] The trial judge also realized that any overpayment by the wife would not have satisfied the full amount of retrospective periodic child support. This is apparent from the trial judge's express recognition [at para. 10] that the husband "incurred a disproportionate share of the everyday expenses as the children were living with him". Because the husband had a disproportionate share of the childrens' costs, the trial judge observed [at para. 10] that the husband "was not in a position to pay [retrospective] spousal support, nor was the [wife] in need of spousal support". While the trial judge did not elaborate further on this point, it is evident from the record as a whole, as well as from his final disposition, that he considered the wife's obligation for retrospective periodic child support to be offset, at least in part, by the dismissal of her claim for retrospective spousal support. [See Note 5 below]

[59] Second, the trial judge specifically observed that the parties had no "formal" arrangement for child and spousal support. [page96 ]This observation recognized the parties' apparent informal agreement not to pursue either interim child or spousal support. Viewed this way, the trial judge's refusal to award retrospective child support arose, in part, from the parties' informal understanding or mutual acquiescence to the pre-trial status quo. Acceptance of the parties' understanding was open to the trial judge, particularly where their mutual strategy did not result from a power imbalance or impose hardship on the children.

[60] In this case, even absent the benefit of calculations for child and spousal support, and their tax consequences, the trial judgment, at least on the issue of the retrospective child and spousal support, appears to provide a reasonable result. Accordingly, I would decline to interfere with the trial judge's exercise of discretion. I would dismiss both the husband's appeal in relation to retrospective child support and the wife's cross-appeal in relation to retrospective spousal support.

[61] I conclude by observing that in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241, [2008] O.J. No. 38 (C.A.), at para. 103, I commented about counsel "fully" addressing the SSAG. In my view, a "full" argument on the application of the SSAG would generally include provision of calculator worksheets for various scenarios. Those scenarios should be provided to the trial judge and marked as exhibits or aids to the court so that they are available on appeal. When counsel do not provide the trial court with worksheets, or fail to have those calculations before the appellate court, the court cannot be expected to do the calculations on their behalf. [See Note 6 below]

(e) Prospective spousal support

[62] In his appeal, the husband argues that the trial judge's award for prospective spousal support of $1,200 monthly for five years should be set aside and the wife's claim dismissed. In her cross-appeal, the wife argues that the trial judge erred in failing to award her a larger amount of spousal support retrospective to the date of separation and in limiting the duration of prospective spousal support to five years.

[63] I consider this aspect of the appeal mindful of the deference owed to a trial judge's discretionary support decision and also mindful of the factors and objectives set out in s. 15.2(4) and (6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): [page97 ]

Factors

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall 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 arrangement relating to support of either spouse. . . . . .

Objectives of spousal support order

(6) An order . . . 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.

[64] Unfortunately, the trial judge's reasons did not directly address the important threshold issue and pre- condition to an award for spousal support: entitlement. The only explanation the trial judge gave [at para. 11] for a spousal support award was that the wife had established "a need for spousal support at least during the period that Louise has either completed her education or gone on her own". It appears to be for the same reason that the trial judge restricted the spousal support award to five years, which was the amount of time that Louise would likely need to complete her undergraduate education. There is an obvious problem with this reasoning: "need" is only one factor relevant to entitlement to an award of spousal support. It does not encompass the other objectives and factors that a court is mandated to consider under the Divorce Act.

[65] Even though a recognition of the factors and objectives informing the question might have otherwise been evident from a reading of the experienced trial judge's reasons in conjunction with the record as a whole, in light of the trial judge's exclusive reference to "need", which amounts to an error in principle, it is necessary for this court to satisfy itself that the wife properly established the necessary prerequisite of entitlement. In my view, there is sufficient evidence in this record to do so. [page98 ]

[66] The husband argues that the wife is not entitled to spousal support on the basis of Calvert v. Stewart, [2009] O.J. No. 528 (S.C.J.); however, the facts in Calvert differ significantly from the facts in this case. In Calvert, the wife was a physician. The husband was paying her child support. She sought additional child support as well as spousal support. In dismissing her claim for spousal support, the trial judge specifically found that the marriage did not hamper the wife's career, which he described as "her passion". In any event, the trial judge also observed, at para. 66, that, after the deduction of child support from the husband's income, there was not much difference in the parties' net incomes.

[67] In this case, the wife argues entitlement to spousal support on the basis that she subordinated her career to that of the husband. In the early years of the marriage, the family moved three times due to the husband's education and employment. As a result of these moves, the wife's employment was restricted at times to part-time substitute teaching. In addition, the wife took approximately three years out of the paid workforce to care for the two boys as well as apparently a further year to set up the family's home in Hamilton. The evidence also suggested that the parties' circumstances may have required the wife to forego graduate studies. The evidence disclosed that the wife suffered health issues during the marriage, including pregnancies that resulted in miscarriages, as well as her breakdown in May 2002. Finally, the wife points to the consequences of the parties' joint decision that she accept her current private-school position, a decision made in the best interests of the children, but with long-term consequences for the wife.

[68] The husband points to his financial circumstances post- separation and argues that the wife is not in need of spousal support because her financial statement showed no shortfall between her income and her expenses. The husband is correct. The wife's financial statement simply matched her current budget to her current revenues. However, the wife testified that her post-separation lifestyle was actually lower than that of the husband. Moreover, I observe, under s. 3.3.2 of the SSAG, the formulae for spousal support are based not on budget, but on "income sharing as the method for determining the amount of spousal support".

[69] Finally, the husband argues that the wife did not enjoy an elevated lifestyle because, as found by the trial judge, the parties lived frugally. However, this argument ignores the fact that the wife would have benefited from the parties' joint incomes, even if the parties gave priority to their children and their mortgage [page99 ]during the marriage. In addition, the husband's argument also ignores the obvious expectation that, once the children were grown, their joint incomes would benefit them both. Over the 23 years of their marriage, the parties' expectations and interdependency would have evolved into an economic merger of their interests. [See Note 7 below] That merger, together with the wife's somewhat compromised career path, meets the threshold of entitlement to spousal support.

[70] I turn to the duration of spousal support. The applicable "Custodial Payor" formula, set out in s. 8.9 of the SSAG, presumes that spousal support for the wife would be indefinite (duration not specified). This presumption arises for two reasons. First, the duration of the parties' marriage exceeded the 20 years for indefinite support referenced in the SSAG. Second, the circumstances of this case met the "rule of 65", set out in s. 7.5.3 of the SSAG, because the wife's age of 48 at the time of separation and the 23-year duration of their marriage add up to 71. I observe that the SSAG presumptions regarding duration and age simply reflect case law awarding indefinite support in long-term marriages where dependency on lifestyle is established and recognize that a spouse's age at separation is relevant to the person's ability to become self- supporting.

[71] The trial judge in this case did not award indefinite support. Even when combined notionally with the pre-trial period of 4.5 years, a total of 9.5 years of spousal support is not "indefinite". The trial judge did not explain why he did not order indefinite support, apart from his reference to the wife's "need" during the five years she would likely be paying child support. Given the "economic merger" between the parties, the uncertainties [page100] surrounding the wife's employment and the husband's security of employment, I see no basis to time-limit spousal support. Accordingly, I would accept this ground of cross-appeal and vary spousal support to remove the termination date, understanding of course that the husband is free to seek to revisit ongoing entitlement on a variation application, particularly on an application to terminate support.

[72] I turn to the issue of the appropriate amount of spousal support. The Custodial Payor formula of the SAGG produces a lower range of spousal support than would be provided by the application of other formulae. This is because the formula was developed to recognize the obligations that fall on the custodial parent, the custodial parent's responsibility for post-separation childcare and the priority to be given to child support, as well as the length of the marriage, the usually older age of the remaining dependent children and a non- custodial parent's usual pre-separation contributions to the children's care.

[73] The parties' apparent incomes at trial were approximately $137,000 and $85,000. The closest SSAG calculations provided to this court based on the "Spousal Support Paid By Custodial Parent" formula incorporated an income of $133,754 for the husband and $86,416 for the wife. The calculator worksheet projected spousal support for the wife ranging from $838 monthly to $1,117 monthly. Even using the husband's higher income of $137,000, the $1,200 awarded by the trial judge sits at the high end of the SSAG range.

[74] If the trial judge settled on the high end of the range (and reduced its duration) as a result of "restructuring" under the SSAG, his reasons do not explain the factors relevant to such a decision. In addition to "need", which he did consider, the trial judge was required to consider the duration of the parties' marriage, their joint contributions, the disadvantages explained by the wife from the marriage and its breakdown, the financial consequences of the separation to the husband and the other factors mandated by the Divorce Act. Had he considered those circumstances, he would not have awarded support at the high end of the range. In particular, in my view, the high end of the range is not appropriate in light of the husband's obligations for Louise and the wife's relatively high level of income.

[75] Accordingly, in all the circumstances of the parties, I would vary the amount of spousal support payable by the husband to the wife to the lower end of the range and award $950 monthly, payable indefinitely. I emphasize that "indefinitely" only means that no termination date will be set at this juncture. [page101]

(f) Trial costs

[76] Following a three-day trial, the trial judge awarded the wife costs in the amount she requested of $24,590.35. In his brief initial and supplementary endorsements explaining this award, the trial judge concluded, since the wife was successful at trial, that she was presumptively entitled to costs by virtue of rule 24(1) of the Family Law Rules, O. Reg. 114/99. In deciding that the wife was the successful party, the trial judge observed that the prospective payment of child support (for Louise) was not contested.

[77] The husband argues that the trial judge erred in awarding costs to the wife because she was not the more successful party and because, contrary to the trial judge's statement in his supplementary endorsement, the wife contested child support at trial and was unsuccessful on that issue. He further argues that the costs of litigating child support should not fall upon a custodial parent. Finally, he argues that the trial judge erred in his quantification of costs. He asks that the costs award at trial be set aside and that he be awarded trial costs fixed at $12,000.

[78] I will review each of the husband's arguments on this issue mindful that a costs disposition is entitled to considerable deference and will only be overturned on appeal where the trial judge has made an error in principle or is plainly wrong. I am also mindful of the factors set out in rule 24(11) of the Family Law Rules.

24(11) A person setting the amount of costs shall consider, (a) the importance, complexity or difficulty of the issues; (b) the reasonableness or unreasonableness of each party's behaviour in the case; (c) the lawyer's rates; (d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.

[79] First, the husband argues that the trial judge erred in finding that the wife was the successful party at trial. I do not agree. The wife's obligation to pay s. 3 and s. 7 child support was obvious. The amount of s. 3 support was presumptively in the amount of the Guidelines. There was no dispute about the wife's income. [page102]

[80] One of the primary issues was the amount of s. 7 expenses and whether the wife had met her support obligations. The trial judge concluded that she had. In the result, the trial judge denied the husband retrospective child support and the wife retrospective spousal support, but awarded the wife prospective spousal support. In these circumstances, it was open to the trial judge to conclude that the wife was the more successful party at trial and to award her costs of the proceeding.

[81] Second, the husband argues that the costs burden of litigating child support should not fall on the custodial parent. Indeed, in M. (C.A.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181, [2003] O.J. No. 3707 (C.A.), Rosenberg J.A. observed, at para. 42, that a relevant consideration under rule 24(11)(f) is the financial circumstances of an unsuccessful custodial parent, and particularly the impact of a costs award on the interest of a child. Nonetheless, a parent is not absolved from a costs disposition simply because he or she is the custodial parent, particularly where the court is not persuaded that the child's best interests would be negatively affected. In this case, the fact that the husband was a custodial parent was a relevant factor. However, the impact of a costs disposition on the children would be, at most, minimal in light of their circumstances.

[82] Finally, the husband argues that the amount of costs awarded was excessive and outside the parameters of the parties' reasonable expectations, even accepting the flexibility that a court has in considering the rule 24(11) factors. The husband advances two grounds for this position. First, he argues that the wife's bill of costs improperly included attendances at conferences and other court appearances where no costs were allowed. This argument is based on rule 24(10), which specifically requires the judge who deals with a step in a case to decide the question of entitlement to costs. This court in Islam v. Raham, 2007 ONCA 622, [2007] O.J. No. 3416, 228 O.A.C. 371 (C.A.), observed, at para. 2, "that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue". In that case, the trial judge had improperly allowed costs where there was no order for costs or costs were not awarded for those appearances.

[83] Second, the husband argues that the trial judge erred in awarding the wife her costs essentially on a substantial indemnity basis. He argues, citing Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 37, that a judge should fix a "fair and reasonable" amount within the parties' expectations, [page103] not simply the actual costs of the successful litigant: see, also, M. (C.A.), at para. 42.

[84] Regarding the first argument, the trial judge does not explain either explicitly or inferentially why the wife would be entitled to costs of conferences and appearances where costs were not awarded or reserved. On the other hand, the husband does not provide an amount attributable to such appearances, nor can one be discerned from the record before this court. In addition, the wife's bill of costs was already substantially reduced to reflect the bifurcated nature of the custody and support proceedings. Accordingly, I would not give effect to this argument.

[85] Regarding the second argument, I do not accept that the trial judge's award is equivalent to substantial indemnity costs in light of the bifurcated bill submitted at trial. Moreover, the trial judge's award is entitled to considerable deference. This is because the trial judge alone is in a position to observe the parties and weigh the factors set out in rule 24(11). Those factors include the reasonableness of the parties' behaviour as well as attempts to settle. On the record, the husband appears to have held the upper hand throughout. He chose not to provide the wife with a list of s. 7 expenses and tacitly accepted their pre-trial informal arrangements. He did not respond to the wife's offer to settle despite the fact that this case, which was not complex, cried out for a reasonable settlement. In these and all the circumstances of the case, in my view, it was open to the trial judge to arrive at his disposition of costs. I see no basis to interfere with his exercise of discretion.

Result

[86] I would allow the appeal and cross-appeal only to the extent of varying the order of the trial judge to provide for spousal support in the amount of $950 monthly payable without a set termination date. I would otherwise dismiss the appeal and cross-appeal.

Costs of the Appeal

[87] While the husband achieved some degree of success regarding costs, the wife was more successful on the substance of the appeal. In those circumstances, I would award costs of the appeal to the wife fixed in the agreed-upon amount of $15,000, inclusive of disbursements and GST.

Appeal and cross-appeal allowed in part.

Notes

Note 1: At trial, the wife's counsel also questioned the fairness of the spreadsheet system, in particular regarding the sharing of certain vacation expenses, which she alleged favoured the husband. In any event, those expenses are not material to the outcome of this case.

Note 2: Although Jeffrey gave a very global account of his overall costs at trial, the husband does not appear from the record before this court to have previously, or ever, provided a breakdown of the boys' university costs to the wife. Certainly, none was included in the record on appeal.

Note 3: On appeal, the amount claimed is $46,500.

Note 4: The husband's financial statement suggests $143,000 to $146,000 in 2007 income, but his counsel claimed the proper amount to be $137,000, after accounting for the taxable benefit for Thomas' tuition and medical/dental and other claims.

Note 5: I observe that the different tax treatment of child and spousal support was not an issue developed in this case.

Note 6: These reasons do not consider the situation where the parties are self-represented, as that scenario does not arise on these facts.

Note 7: The SSAG explain the concept of economic merger, in s. 7.2, as follows: "We use this term to capture the idea that as a marriage lengthens, spouses merge their economic and non-economic lives more deeply, with each spouse making countless decisions to mould his or her skills, behaviour and finances around those of the other spouse . . . The length of marriage then determines the extent of the claim to be protected against this loss of the marital standard of living . . . On this view entitlement to non-compensatory support arises whenever a lower income spouse experiences a significant drop in standard of living after marriage breakdown as a result of loss of access to the other spouse s income, with amount and duration resolved by an individual judge's sense of fairness. Merger over time incorporates this broad view of non-compensatory support and provides some structure for quantifying awards made on this basis. It takes account not just of obvious economic losses occasioned by the marriage, but also of the elements of reliance and expectation that develop in spousal relationships and increase with the length of the relationship." (Footnotes omitted)