COURT OF APPEAL FOR ONTARIO

CITATION: Squires v. Crouch, 2016 ONCA 774

DATE: 2016-10-24

DOCKET: C61246

Feldman, Epstein and Miller JJ.A.

BETWEEN

Timothy James Squires

Applicant (Appellant/Respondent by way of cross-appeal)

and

Linda Christine Crouch

Respondent (Respondent/Appellant by way of cross-appeal)

Kaitlin A. Jagersky, for the appellant/respondent by way of cross-appeal

Esther L. Lenkinski and Alexandra M. Carr, for the respondent/appellant by way of cross-appeal

Heard: September 27, 2016

On appeal from the order of Justice R. John Harper of the Superior Court of Justice, dated October 2, 2015, with reasons reported at 2015 ONSC 6050.

ENDORSEMENT

[1] The parties were both self-represented at their trial to determine a number of financial issues consequent on their separation and divorce. They are both now represented by counsel on this appeal. In oral argument counsel agreed that if the court would rule on the disputed issues, counsel will use those rulings to conduct the required calculations to arrive at the correct numbers for child and spousal support and arrears.

1) Imputed Income of the Wife

[2] The first issue is how much, if any, income ought to have been imputed to the respondent for the years 2012, 2013 and 2014 for the purpose of calculating support. Both sides agree that the amounts used by the trial judge were based on a misapprehension of the evidence.

[3] The trial judge recognized the respondent’s significant health problems and attempts to retrain for her career during those years. He stated:

Linda has made appropriate efforts to jump start her career given the roles she played in her marriage and the significant impact on her of the marriage breakdown at a time when she was attempting to overcome significant health challenges.

[4] However, he then stated that he was accepting her counsel’s submission that for support purposes, the amounts of $16,000 for 2012, $21,638.00 for 2013 and $20,000 for 2014 should be imputed. This was an error as there was no counsel and we are told no such submission was made.

[5] The appellant asks the court to impute the minimum wage to her for those years as she is a skilled and capable woman with many employment skills. The respondent asks that the court impute no income to her during those years as she was not working full-time, was overcoming her health challenges and took a course to attempt to retrain in 2012.

[6] In our view, the evidence supports the implicit finding of the trial judge that the respondent was not deliberately underemployed during those years. To the contrary, as he stated, she was trying to jump start her career in the face of her significant health challenges. We therefore accept the submission of the respondent that no income (other than her actual earnings) be imputed to the respondent for the purposes of calculating support.

2) Level of Spousal Support

[7] The trial judge awarded spousal support to the respondent in the amount of $2092.00 per month for 2013, 2014 and 2015, stating that given the incomes of the parties and the child residency scheme, the SSAG calculation would suggest the mid-range for spousal and child support. However, we are told that $2092 is in fact above the high range for spousal support.

[8] The appellant submits that the court should reduce the amount to reflect the actual mid-range. The respondent submits that the high range is appropriate using the proper figures for income and taking account of all the circumstances. She submits further that because there is a very significant amount of arrears owing to the respondent by the appellant, the amount awarded by the trial judge should be retained because it would then include an amount toward those arrears.

[9] We agree with the respondent that an amount at the high end of the range is appropriate for spousal support, but we would reduce the amount to reflect the SSAG calculation. While the trial judge suggested a mid-range for spousal support was appropriate, he was relying on incorrect numbers in doing so. We agree that the actual quantum the trial judge ordered more closely reflects the appropriate amount of support than his comment that a mid-range was reasonable.

[10] Although there may well be merit in including an amount for arrears, that would require this court to go beyond correcting errors made and to address the issue as a first instance trial court since the trial judge did not address that issue and we decline to do so.

3) Extraordinary Expenses for Music Lessons (s. 7 Expenses)

[11] The trial judge found that the respondent had paid for the children’s music lessons and that the appellant was responsible for 75% of all extraordinary expenses. The appellant submits that on the evidence, it was the respondent’s mother who paid for the music lessons as a gift to her grandchildren.

[12] We would not interfere with the finding of the trial judge. We are told that the financial arrangements between the respondent and her mother suggested the possibility of reimbursement. As the court held in Lefebvre v. Gowan, 2014 ONSC 6221, [2014] W.D.F.L. 4722, at para. 28, the fact that grandparents help a separated child pay the expenses of the grandchildren does not in the ordinary course absolve the other parent from financial responsibility.

4) Life Insurance and Medical Insurance

[13] The parties dispute whether the life insurance issue was raised before the trial judge. Nevertheless, the appellant has life insurance in place with the respondent named as beneficiary. He is content to have that remain in place and be included in the court order.

[14] The appellant also has medical insurance through his employer. The trial judge ordered that the appellant shall continue to cover the respondent for extended health benefits through his employer, and that if such benefits are no longer covered, the respondent may move to vary support. The respondent asks that this court order that if the coverage is no longer available, the appellant be required to replace it at his expense. We see no error in the trial judge’s decision on this issue and no basis to interfere with it.

Conclusion

[15] Based on counsel’s submissions, we understand that using the above orders, they will be able to recalculate the amounts for spousal and child support and arrears and draft the proper order.

[16] As the respondent had the substantial success on the financial issues in dispute, we award costs fixed in the amount of $15,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“Gloria Epstein J.A.”

“B.W. Miller J.A.”