Gray v. Gray

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

September 25, 2014

122 O.R. (3d) 337 | 2014 ONCA 659

Case Summary

Family law — Support — Spousal support — Respondent ordered in 1998 to pay spousal support of $800 per month — That amount lower than it otherwise would have been because appellant was receiving very high child support payment — Appellant unable to work after separation because of poor health but having primary responsibility for children — Respondent's income increasing after separation — Appellant's annual income $33,500 and respondent's $169,500 — Motion judge terminating child support in 2013 as children were adults — Motion judge dismissing appellant's motion to increase spousal support — Appellant's appeal allowed — Motion judge erring in determining appellant's need, in finding that she was not entitled to compensatory support and in failing to advert to Spousal Support Advisory Guidelines — Spousal support varied to $2,720 per month.

The parties separated after a 16-year marriage, during which they had four children. In the 1998 divorce judgment, the respondent was ordered to pay spousal support in the amount of $800 per month. That amount was lower than it otherwise would have been in recognition of the appellant's receipt of very high child support payments. The appellant was unable to work after the separation because of her fragile health, but had the primary responsibility for the children. In 2013, the motion judge terminated child support as the children had reached adulthood. The motion judge dismissed the appellant's motion to increase spousal support. He found that she was still entitled to spousal support on the basis of need, but that she was not entitled to compensatory spousal support. He found that her need was no greater than it was in 1998. The appellant appealed.

Held, the appeal should be allowed.

The motion judge erred in determining the appellant's need. The 1998 spousal support amount was plainly not based on her actual need at that time. As the appellant was no longer receiving child support, it was wrong for the motion judge to conclude that her need was no greater than it was in 1998. Moreover, he erred in finding that the appellant's 2012 gross income was $49,563; in fact, it was $33,500. He also erred in finding that the appellant was not entitled to spousal support on a compensatory basis. While she worked throughout the marriage, the appellant made career choices and arranged her work schedule to further family needs. After the separation, the fact that she undertook the bulk of the responsibilities relating to the children enabled the respondent to pursue his career without undue concern for the day-to-day realities of child rearing. During that time, his income increased substantially. His annual income for the purpose of calculating support was $169,500. Finally, the motion judge erred in failing to advert to the Spousal Support Advisory Guidelines ("SSAG") when he set the amount of spousal support. The SSAG apply to variation proceedings. Taking into account the respondent's responsibilities to his second family and the fact that the appellant's ill health necessitated extending the duration of spousal support beyond the time frame suggested by the SSAG, spousal support should be set at $2,720 per month, which was at the lowest end of the SSAG range, to be indexed annually. [page338]

Fisher v. Fisher (2008), 88 O.R. (3d) 241, [2008] O.J. No. 38, 2008 ONCA 11, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, 163 A.C.W.S. (3d) 432, consd

Other cases referred to

Abernethy v. Peacock, [2012] O.J. No. 1203, 2012 ONCJ 145; Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, J.E. 99-703, REJB 1999-11414, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, 44 R.F.L. (4th) 1, 86 A.C.W.S. (3d) 1109; Cassidy v. McNeil (2010), 99 O.R. (3d) 81, [2010] O.J. No. 1158, 2010 ONCA 218, 266 O.A.C. 62; Gray v. Gray, [1998] O.J. No. 2291, 68 O.T.C. 217, 80 A.C.W.S. (3d) 121 (Gen. Div.); Gray v. Gray, [2013] O.J. No. 3880, 2013 ONSC 5478 (S.C.J.); Hickey v. Hickey, 1999 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; Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J. No. 2819, 228 D.L.R. (4th) 376, 174 O.A.C. 76, 38 R.F.L. (5th) 307, 123 A.C.W.S. (3d) 902 (C.A.); Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, J.E. 93-111, 81 Man. R. (2d) 161, [1993] R.D.F. 168, 43 R.F.L. (3d) 345, EYB 1992-67141, 37 A.C.W.S. (3d) 527

Statutes referred to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.], s. 15.3

Family Law Act, R.S.O. 1990, c. F.3, s. 34(5)

APPEAL from the order of Conlan J., [2013] O.J. No. 3880, 2013 ONSC 5478 (S.C.J.) dismissing a motion to vary spousal support.

Bryan R.G. Smith and Sarah Conlin, for appellant.

Carol A. Allen and Megan L. Celhoffer, for respondent.

The judgment of the court was delivered by

LAUWERS J.A.: —

A. Introduction

[1] The respondent, James David Gray, brought a motion to change to eliminate child support for the children of the marriage since they are all now adults, with retroactive effect. Mr. Gray also sought to eliminate the obligation to pay spousal support and, in the alternative, a continuation of spousal support at $800 per month, indexed, as set by Thompson J. in the 1998 divorce judgment.

[2] The appellant, Kathleen Janet Gray, sought an increase in spousal support from $800 per month to $4,302 per month, also with retroactive effect. The interim order of Herold J. on April 30, 2012 terminated child support, but increased spousal support to $3,000 per month. [page339]

[3] The motion judge conducted a trial. He terminated child support, and found that Mr. Gray had overpaid child support in the amount of $75,044. By order dated August 26, 2013 [ [2013] O.J. No. 3880, 2013 ONSC 5478 (S.C.J.)], he ordered spousal support to continue at $800 per month, indexed, and found that Mr. Gray was in arrears of spousal support in the total amount of $79,807.32. He ordered Ms. Gray to pay $5,000 in costs. The result was a virtual offset.

[4] Ms. Gray appeals. I would allow the appeal and, in particular, require Mr. Gray to pay spousal support at the low end of the range established by the Spousal Support Advisory Guidelines ("SSAG"), for the reasons set out below.

B. Background

(1) Relevant facts

[5] The appellant and respondent were married in June 1980. They had four children: a daughter, K, born April 9, 1981; a son, A, born February 18, 1983; a son, W, born October 27, 1988; and a son, J, born November 9, 1990.

[6] The parties separated, either in December 1994, when, according to Mr. Gray, they ceased to be in a conjugal relationship, or in July 1996, when Mr. Gray served Ms. Gray with a petition for a divorce. There was a protracted battle about spousal and child support, which was complicated when Mr. Gray filed for bankruptcy in 1998. He is still an undischarged bankrupt.

[7] Mr. Gray is now remarried and has three young children with his new wife. He lives in Indiana, U.S.A. He owns two homes, one in Indiana and one in Collingwood, Ontario, both with substantial mortgages. The Collingwood home is listed for sale at $684,000. Since 2005, his employment income has been $144,500 gross, plus a bonus that has averaged about $25,000. Mr. Gray's remuneration was paid in Canadian funds until July 2012, when he began working in Indiana. At the time of trial, he had almost $90,000 in investments and savings.

[8] Ms. Gray has not worked out of the home since she was admitted to the hospital for a suspected heart attack on December 31, 1994. She was ultimately diagnosed with leukemia and her health remains fragile. She receives long-term disability benefits and CPP benefits. Her annual income is currently about $33,500. She lives in the former matrimonial home in Meaford, which has about $67,000 in equity. She owns other assets, such as a timeshare in Hawaii and title to a cottage in Ontario. She has admitted that her current financial situation is affected by [page340] the fact that she paid to send the children of the marriage to private schools.

(2) The litigation history

[9] I set out only the elements of the litigation history relevant to this appeal. Thompson J. issued the final order/ divorce judgment on May 21, 1998 [[1998] O.J. No. 2291, 68 O.T.C. 217 (Gen. Div.)]. Paragraph 4 of the judgment required Mr. Gray to provide spousal support:

THIS COURT ORDERS AND ADJUDGES that the Petitioner shall pay spousal support to the Respondent in the amount of $800 per month commencing May 20, 1998. This quantum of support is less than is required by the Respondent but is ordered in accordance with 15.3(2) of the Divorce Act. This spousal support shall be indexed in accordance with section 34(5) of the Family Law Act.

[10] Thompson J.'s reasons did not surface until after the argument of the motion to change, although they are reported at Gray v. Gray (1998), supra. With respect to the spousal support award, he explained, at para. 39:

Mrs. Gray is entitled to spousal support. I have concluded that an appropriate amount would be the sum of $800 per month commencing May 20, 1998. This is less than I would have awarded but the needs of the children must take precedence.

[11] Paragraph 5 of the judgment required Mr. Gray to pay child support:

THIS COURT ORDERS AND ADJUDGES that commenc[ing] on May 20, 1998, and on the 20th day of each subsequent month, the Petitioner shall pay to the Respondent child support in the amount of Two Thousand Three Hundred and One Dollars ($2,301.00) for the four (4) children of the marriage, being One Thousand Nine Hundred and Fifty-One Dollars ($1,951.00) as base child support, and Three Hundred and Fifty Dollars ($350.00) per month towards the children's' special and extraordinary expenses. The base quantum of child support is based on the Petitioner's base annual income of One Hundred and One Thousand, Nine Hundred and Eighty-Two Dollars and Ninety-Two Cents ($101,982.92).

[12] Thompson J. clearly intended that child support take into account both Mr. Gray's base salary and his bonus. He elaborated, at para. 49 of his reasons:

In the event that the husband receives a bonus from his employer over and above his base salary of $101,982 per annum, he shall forthwith advise the wife, in writing, of this event. Child support shall then be determined on a retroactive basis for the 12 month period immediately preceding the receipt of the bonus. Child support shall be determined by adding the base salary received by the husband and the bonus received, to ascertain the gross annual income from employment for the 12 month period preceding receipt of the bonus. The Child Support Guidelines shall be applied using the gross [page341] annual income figure to determine the child support payable for the 12 months preceding the payment of the bonus. Any support arrears created by this calculation shall be payable effective the date the bonus was received.

[13] The parties came before Thompson J. again years later. On November 10, 2004, he issued a complex order relating to spousal support arrears, child support arrears and ongoing child support obligations. The order was silent about ongoing spousal support but did not alter the 1998 judgment which required such support.

[14] Thompson J. issued another order on January 7, 2005 providing that Mr. Gray "shall pay to [Ms. Gray] as child support the sum of $3,429 per month".

[15] The record is clear that Ms. Gray ignored Mr. Gray's efforts to have the child support obligation adjusted as the children aged. He then brought the motion to change. Herold J. issued a temporary order on April 20, 2012 terminating child support, on consent. He increased spousal support, not on consent, to $3,000 per month, effective May 1, 2012. He noted in his endorsement that

It is clear from the material filed that Mother is just getting by while receiving over $3,000/month in child support . . . I am completely satisfied that Mother needs, and father has the ability to pay interim spousal support of $3,000 per month.

C. The Decision Below

(1) Child support

[16] There is no dispute between the parties that the child support ought to have been reduced over time. K graduated from university in 2005, and child support for her should have terminated September 1, 2005. Their eldest son, A, graduated from university in spring 2007 and the motion judge set May 1, 2007 as a reasonable date to terminate child support for him. He added, at para. 87, that for W and J, "the safest, most reliable and most fair termination date to use is that decided by Herold J. -- April 30, 2012". As noted, the motion judge did the calculations and found that Mr. Gray had overpaid child support in the amount of $75,044. The parties do not dispute the motion judge's determination of this issue or his calculation.

(2) Spousal support

[17] The motion judge rejected Ms. Gray's request for spousal support on a compensatory basis, at para. 66. He found, however, [page342] at para. 67, that she was entitled to spousal support on a needs basis:

But I am satisfied on balance that there remains currently an entitlement to spousal support by Ms. Gray on a need basis. Her current income is a small fraction of what the marital standard of living was prior to separation. Her current income is a small fraction of Mr. Gray's. Her health remains precarious. I have no reason to impute any income to her. And she has very limited assets of a known value.

[18] The motion judge went on, at para. 76:

Ms. Gray's need for spousal support is no greater today than it was in May 1998. In fact, with the recent increase in her LTD benefits and the ages and stages of her children, it is arguable that her need is somewhat less.

[19] The motion judge ordered, at para. 77, that the $800 per month in spousal support, indexed, as ordered by Thompson J. in his May 20, 1998 judgment, be continued.

[20] The motion judge found that Mr. Gray's arrears of spousal support were $79,807.32. These arrears accrued because of confusion as to whether the 2005 order of Thompson J. for $3,429 included the $800 per month in spousal support. The motion judge found that spousal support was not included in that order, so that the spousal support ordered in the 1998 divorce judgment continued in force. The parties do not dispute the calculation of this number, which was derived with the assistance of the Family Responsibility Office, taking into account the indexing provided for in the original order.

D. The Issue

[21] The sole issue is whether the spousal support ordered by the motion judge was adequate in light of the law as applied to the facts.

E. The Standard of Review

[22] This court should not overturn a support order "unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong": Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, at para. 11.

F. Analysis

[23] In my view, on the evidence accepted by the motion judge, the spousal support amount of $800 per month, indexed, is clearly wrong, due to a number of errors in principle and a significant misapprehension of some of the evidence.

[24] In the circumstances, using the logic of Lang J.A. in Cassidy v. McNeil (2010), 99 O.R. (3d) 81, [2010] O.J. No. 1158, 2010 ONCA 218, at para. 39, [page343] in my view, "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".

[25] Consistent with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the trial judge considered two distinct conceptual bases for entitlement to spousal support: on the basis of need and on a compensatory basis. (The contractual basis is not relevant.)

The needs basis

[26] I would agree with the motion judge that Ms. Gray is entitled to spousal support on a needs basis. But the motion judge's determination of her actual need was wrong in fact and in principle.

[27] One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J. No. 2819 (C.A.), at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses.

[28] In the case before us, Ms. Gray's health prevents her from working. This is relevant to the assessment of her needs. As stated by the Supreme Court in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, "in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less" (at para. 48).

[29] In fixing monthly spousal support at $800, indexed, the motion judge made the following comments, at paras. 34-35:

Ms. Gray testified that the $800.00 per month in spousal support ordered by Thompson J. in May 1998 was less than what she was entitled to but ordered nonetheless so that more money went to the children for their support.

It is noteworthy that paragraph 4 of the said Judgment in May 1998 does include these words: "this Court orders and adjudges that the Petitioner shall pay spousal support to the Respondent in the amount of $800.00 per month commencing May 20, 1998. That quantum of support is less than is required by the Respondent but is ordered in accordance with 15.3(2) of the Divorce Act". [page344]

[30] In my view, the motion judge's observations in these paragraphs are logically inconsistent. It is plain from the wording of the 1998 order of Thompson J. that he was awarding an amount of spousal support that was lower than he might otherwise have ordered, because the child support payments were so high. He recognized, consistent with s. 15.3 of the Divorce Act, which is cited in his order, that there is financial synergy that benefits the spouse who has custody of the children and receives child support.

[31] The spousal support amount in 1998 was plainly not based on Ms. Gray's actual need in 1998. It was therefore wrong for the motion judge to conclude that her need in 2014 is no greater than it was in May 1998 and that her need now is properly measured by that amount of $800 per month, as indexed.

[32] In determining the need of the recipient, it was also incumbent on the motion judge to make a finding as to the appellant's income. The motion judge found that, according to Ms. Gray's June 2013 financial statement, her 2012 gross income was $49,563. This number was comprised of $1,022.70 per month in CPP, plus $1,315.31 gross per month in LTD benefits and a small amount of investment income. Her disability income discontinued shortly after trial when she began receiving her pension of $1,600 per month. She says the figure used by the motion judge mistakenly includes her $20,966.99 in spousal support.

[33] I would agree with the appellant that the motion judge erred, at para. 78, in finding Ms. Gray's income to be $49,563 annually, since that figure included spousal support. There is no evidence to suggest that her disability payments are tax free. I would accept the appellant's calculation of Ms. Gray's income at approximately $33,500 per year.

[34] By overstating the appellant's income, the motion judge's analysis of need was faulty. The needs of Ms. Gray can only be ascertained if measured against an accurate picture of her income. Ms. Gray's budget, as found in her financial statement, is not extravagant, nor does it reflect the lifestyle the parties enjoyed prior to separation. She has reasonable expenditures relating to housing, utilities and groceries. Her personal and health-related expenses are modest.

[35] The only portion of her budget on which the appellant was cross-examined related to her payment of the parties' son's credit card and her charitable donations. The respondent also notes that Ms. Gray's debts, including the mortgage, might be significantly less had she not spent improvidently on private schools. [page345]

[36] Ms. Gray's budget shows monthly expenditures of $5,571. The motion judge noted, at para. 67, that Ms. Gray's income provides a small fraction of what the marital standard of living was prior to separation, and that Mr. Gray's income far exceeds hers. While some of her monthly expenses may have been diminished had she not incurred debt associated with paying for private schools or otherwise supporting adult children, her need is well beyond a spousal support award of $800 per month. Setting apart her mortgage payment and her payment on her son's credit card, her budget shortfall would be more than $2,000 per month.

The compensatory basis

[37] I would also disagree with the motion judge's conclusion, at para. 66, that Ms. Gray is not entitled to spousal support on a compensatory basis. His reasoning is simply conclusory. His statement, at para. 80, that the marriage was anything but "traditional" does not offer any analysis of the economic consequences of the marriage or its breakdown, as the Supreme Court intended in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107, at paras. 41-42.

[38] The purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. In Moge v. Moge, at p. 861 S.C.R., para. 70, the Supreme Court explained the principle behind the compensatory model of support as follows:

Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.

[39] The evidence in this case supports an entitlement to compensatory support. The appellant was employed as a flight attendant at the time of marriage. The parties had four children between 1981 and 1990. Ms. Gray gave evidence that her employment as a flight attendant functioned well for her family because she would only get paid for the hours she worked. She enjoyed her work and felt it offered the best benefits to the family as well as time at home. This meant that she could arrange her schedule to accommodate child care responsibilities. Both parties acknowledge that she planned her schedule to fly on weekends, when Mr. Gray was available for child care. [page346] In addition, she took frequent unpaid leaves of absence, some related to giving birth and others to have time off at home.

[40] At the time of separation, the children were 15, 13, eight and five years old. Ms. Gray had custody of the children, while Mr. Gray had access one evening a week and every other weekend. Post-separation, Ms. Gray was unable to return to work for health reasons. However, it is clear that she undertook the bulk of the responsibilities relating to the children. Her labour on the home front during these years enabled Mr. Gray to pursue his career without undue concern for the day-to-day realities of child rearing. During this time, Mr. Gray's income increased substantially.

[41] As noted, the trial judge's reasons are conclusory. He does not appear to account fully for the factors set out above. On the evidence, her career choices and her work schedule were taken to further family needs. An award of compensatory support is warranted based on the responsibilities undertaken by both parties during the marriage and post-separation.

The application of the SSAG

[42] The SSAG are neither legislated, nor binding. However, they are a useful tool with which to measure the quantum and duration of spousal support. The motion judge referred to the SSAG but did not advert to them when he set the amount of spousal support. He seemed to see his task as setting the SSAG numbers for the next review of spousal support, but not the review that he was engaged in.

[43] This court commented in Fisher v. Fisher (2008), 88 O.R. (3d) 241, [2008] O.J. No. 38, 2008 ONCA 11, at para. 96, that the SSAG only apply to initial support applications, and not to variation proceedings. Fisher was not a variation proceeding that entailed consideration of s. 15.3 of the Divorce Act. At the time of Fisher, the final publication of the SSAG had not been released. The July 2008 SSAG publication contemplates that the guidelines have a role to play on variation. The SSAG expressly comment that it should be possible for either spouse to apply to cross over from the "with child support" formula to the "without child support" formula, to affect the amount of spousal support ordered.

[44] The approach taken by Cohen J. in Abernethy v. Peacock, [2012] O.J. No. 1203, 2012 ONCJ 145 is appropriate in the current case. As in Abernethy, Ms. Gray is entitled to support on a need and compensatory basis. The 1998 support order was deliberately lower than it ought to have been in recognition of her receipt of child support, as permitted by s. 15.3 of the [page347] Divorce Act. In such circumstances, the SSAG offer a valuable tool in assessing a reasonable amount of spousal support, and should be routinely consulted. The motion judge erred in failing to do so.

[45] In some cases, there are complicating factors that must be considered before a court applies the SSAG wholesale. Complicating factors that courts ought to consider include variations based on the post-separation income increase of the payor, or situations with second families. In such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.

[46] There is no basis on which to interfere with the motion judge's finding that the figure of 16 years should be used as the length of the marriage/cohabitation. But the motion judge then made errors in identifying the incomes of both parties. As discussed above, Ms. Gray's spousal support ought not to have been included in her income. Her annual income is therefore approximately $33,500.

[47] As for Mr. Gray's income, I would agree with the appellant that the motion judge erred, at para. 78, in not including Mr. Gray's regular bonus in the calculation of his income. While the figure of $144,500 is appropriate for Mr. Gray's base pay, the figure of $25,000 should be added to account for his regular and predictable bonus. Mr. Gray's annual income for the purpose of calculating support is $169,500.

[48] The result of those inputs would be to set the range of spousal support under the SSAG at somewhere between $2,720 to $3,627 per month.

[49] The duration of support is also an issue that ought to be contemplated under the SSAG. For a 16-year marriage, with the incomes of these parties, the SSAG suggest support for a duration of eight to 16 years from the date of separation, subject to variation and possibly review. The motion judge declined to terminate spousal support, and instead granted an indefinite award, subject to review. He noted that Ms. Gray continued to need support, based on her income and precarious health. I agree in this instance that support ought to be indefinite until a review occurs as a result of a material change in circumstance.

G. Disposition

[50] Mr. Gray's income has increased since the time of separation. This increase was facilitated in part by Ms. Gray having primary responsibility for the children following separation. Typically, an entitlement to compensatory and needs-based support would result in an award at the high end of the SSAG [page348] ranges. Despite the SSAG range, I would agree with Mr. Gray that it is not appropriate in this case to simply adopt and apply the SSAG to set spousal support. In this case, there are factors that should keep support towards the low end of the range.

[51] First, Mr. Gray has responsibilities to his second family that must be considered in the overall context. Mr. Gray's second wife is unemployed because Mr. Gray had to move to the United States to keep his job.

[52] Second, in light of Bracklow v. Bracklow, Ms. Gray's ill health necessitates extending the duration of spousal support beyond the time frame suggested by the SSAG, although I observe that she has only received the spousal support to which she is entitled since the interim order of Herold J. in April 2012. Before that, she received only $800 per month of spousal support, an amount much lower than the amount to which she was entitled; she may not ultimately get spousal support for a longer period than is suggested by the SSAG.

[53] In setting the quantum of support, I am cognizant of the need to balance competing interests. At his current income, Mr. Gray is well positioned to provide for his second family, while still paying support at the low end of the SSAG range to Ms. Gray. This would not necessarily be the case if he had a more limited income. Another factor affecting Mr. Gray's means is that he is paid in U.S. dollars. Counsel in this case did not suggest that his income should be adjusted for SSAG purposes to reflect foreign currency. In the absence of evidence, I would decline to make any adjustments to Mr. Gray on this basis, but I note that the exchange rate is currently in Mr. Gray's favour. Nor is there any evidence to address the tax differences, but I infer that these do not prejudicially affect Mr. Gray. It is also apparent that, for years, the quantum of spousal support was lower than it otherwise would have been as a result of having given priority to child support, as contemplated by s. 15.3 of the Divorce Act.

[54] Taking all of the factors together, I would set spousal support at the monthly amount of $2,720, which is at the lowest end of the SSAG range, to be indexed annually in accordance with s. 34(5) of the Family Law Act, R.S.O. 1990, c. F.3. This figure will plainly require Ms. Gray to make some lifestyle choices.

[55] The financial synergy enjoyed by Ms. Gray as a result of the receipt of ongoing child support was terminated when the motion judge ordered that child support for the two youngest children end on April 30, 2012. The obligation to pay spousal support in the amount of $2,720 will therefore be deemed to have commenced on May 1, 2012. Although the motion judge [page349] ended child support for the eldest two children in 2005 and 2007 respectively, I would decline to order spousal support arrears back to this time on the basis that it would cause hardship to Mr. Gray's new family. Any payments made pursuant to the interim spousal support order of Herold J., or the final order of the motion judge, will be credited to Mr. Gray. The calculation of spousal support arrears and child support overpayment, as outlined in paras. 3, 4 and 5 of the motion judge's final order, are not affected by this disposition.

[56] The motion judge ordered a review of spousal support in August 2016, regardless of whether there has been a material change in circumstances. I see no basis on which to adopt an approach in this case that would be different from the norm. Either party should be able to seek a variation if there is a material change in circumstances. Examples of a change of circumstance could include a change in Mr. Gray's employment or an inheritance by Ms. Gray that would affect her needs.

[57] Consequently, I would allow the appeal and make the following changes to the order:

Paragraph 2(a) shall be amended to provide that the respondent, Mr. Gray, shall pay spousal support to Ms. Gray in the amount of $2,720 per month, subject to indexing in accordance with s. 34(5) of the Family Law Act.

The payment of $2,720 per month in spousal support is effective as of May 1, 2012. This means that Mr. Gray shall pay arrears in support for the months elapsed between May 1, 2012 and the release of this judgment (approximately 28 months). Mr. Gray shall be given credit for any payments made after May 1, 2012 on account of the interim order of Herold J., or the final order of the motion judge.

Paragraph 7 shall be deleted, so that either party can bring an application to vary this spousal support order if there is a material change in circumstances.

-- All other terms of the order remain unchanged.

H. Costs

[58] I would order the costs of this appeal be paid by the respondent to the appellant in the amount of $15,000 all-inclusive, and reverse the $5,000 all-inclusive costs order below.

Appeal allowed.

End of Document