Court File and Parties
Court File No.: DFO: 97-1643-B1 Date: 2012-03-16 Ontario Court of Justice
Between: Nancy Helen Abernethy Applicant
— And —
Christopher Warren Peacock Respondent
Before: Justice Marion Cohen
Heard on: November 29, 30 & December 1, 2011
Reasons for Judgment released on: March 16, 2012
Counsel: Mr. James Herbert, for the Applicant Mr. Howard Warren, for the Respondent
Judgment
COHEN, J.:
Introduction
[1] Pursuant to section 51 of the Family Law Act, an agreement which has been filed with the Court can be varied under section 37 of the Act as if it were an order of the Court. This is a judgment after a retrial on an application to vary the spousal support provisions in a separation agreement. The agreement was signed on April 29, 1997, and filed in this court on October 24, 2007.
[2] At the first trial, the application for variation included several claims, including a retroactive variation of child support, contribution to dental (orthodontic) and medical special expenses, and arrears of section 7 expenses, in addition to the claim for variation of spousal support. On June 30, 2009, after trial, Scully, J. made a number of orders regarding these other issues. He increased spousal support and set a date for termination. The applicant appealed the spousal support orders, and on May 18, 2011, Paisley, J, granted the appeal and ordered a new trial. This is the judgment on the new trial.
[3] On the new trial, the applicant seeks a variation of the spousal support provisions in the agreement effective July 1, 2009. The respondent opposes the claim. He seeks a termination of spousal support as of 2005, repayment of all spousal support paid since that time, and costs.
First Trial Decision
[4] In the summer and fall of 2009, Scully, J. heard the first trial of this matter. At the commencement of his analysis of the evidence and law, Scully, J. referred to the support provisions of the separation agreement:
The aggregate of $2,019 in child support, $300 in spousal support, and $100 towards day care and extra-curricular expenses, with provision for sharing of the latter expenses upon monthly accounting, provided a reasonable monthly funding to the principle household.
[5] On his review of the evidence, Scully, J. found that:
In this case Ms. Abernathy clearly agreed to give priority to child support over her claim for adequate spousal support when negotiating the agreement. …
To reflect and realize the intent of the parties when they entered into the separation agreement and to address the material change in circumstances occasioned by the cessation of child support and the remarkable increase of Mr. Peacock's income, spousal support must be varied. As Mr. Peacock declared his intention to terminate support for Cynthia in September 2007, I have further determined that taking into consideration all the factors in this case, a spousal support payment in the amount of $1,200 per month would be a fair resolution.
[6] Turning to the issue of duration of the spousal support, Scully, J. concluded that:
…The Spousal Support Guidelines suggest that for a marriage of a duration as in this case and considering when the youngest child Heather, completed high school, spousal support ought normally to be limited to 13 years from the date of separation. I believe that the application of the principle is merited. Mr. Peacock's spousal support obligation ought to terminate effective June 30, 2009 when Heather completed high school.
[7] Scully, J's order was appealed to the Superior Court. On May 18, 2011, Paisley, J. determined the appeal. He held that Scully, J. had erred in principle "in failing to expressly consider the exceptions to time limited support set out in the Spousal Support Advisory Guidelines, and in particular, the exception set out at paragraph 12.11 - Section 15.3, which deals with duration of support". The exception referred to applies to the situation where priority has been given to child support in an order or agreement, and the amount of spousal support is less than it would otherwise have been. The section 15.3 exception (referring to section 15.3 of the Divorce Act, of which section 38.1 is the Family Law Act analogue) recognizes that spousal support may have to continue past the time limits in such cases, and may even have to increase upon variation or review as the children cease to be "children of the marriage".
[8] I have determined, for reasons that follow, that the 12.11 – section 15.3 exception applies in this case.
Background
[9] The parties were married in March, 1983, and separated in June, 1996. At the time they married, the applicant was 25 years of age and the respondent was 22. They had cohabited for 18 months prior to their marriage, and the applicant was pregnant at the time the parties wed. Thus, including the period of cohabitation prior to the marriage, they had been together for almost 16 years at the time of separation. The parties have since divorced and the respondent has remarried. The applicant is now 53 years of age and the respondent is 50.
[10] There are three children of the marriage: Colin, born November 5, 1983, Cynthia, born November 17, 1986, and Heather, born January 8, 1991. The children are now adults and no longer dependant. Heather, the last child to remain dependent, completed her education in December, 2011, at which time the respondent's obligation to pay child support terminated.
[11] Prior to the birth of children the applicant worked as a waitress. She did not graduate from high school, but completed a bridging program which enabled her to be admitted to university. She stated she earned only a few credits at university. During the marriage, until the birth of the third child, she did some waitressing, housecleaning and home day-care, earning minimal income.
[12] The respondent has a high school diploma. He was partway through a business program at the time of the marriage and completed it "two years in". Shortly after the marriage he entered the family business, Estelle Designs, which wholesales knitting goods and giftware items, and he remains with the company to date. During the marriage he ascended from working in the warehouse to a management position in the company. In 1996, the year the parties separated, the respondent's annual income was $54,395, and the applicant's annual income was $7,004.
The Separation Agreement
[13] On April 29, 1997, the parties entered into a separation agreement. They agreed to share joint custody of the children, with the applicant having primary residence, and the respondent exercising alternate weekend and midweek access. The agreement provided that the respondent would pay monthly child support in the sum of $603 per child, $2,019 in all. The child support obligation included sharing of post-secondary educational, daycare, extra-curricular, medical and dental expenses for the children. The respondent was to pay monthly spousal support of $300. The support orders were indexed to increases in the cost of living. Although the agreement was negotiated on the eve of the introduction of the Child Support Guidelines, the parties considered it financially optimal to remain under the previous regime, which allowed for deductibility of child support, and inclusion of support payments in the applicant's income for tax purposes.
[14] The agreement included a provision for mediation of disputes which required the parties to exhaust negotiations prior to initiating court proceedings. I would note that no such process was undertaken by the parties prior to the current litigation, however nothing material turns on this. Justice Scully concluded mediation was not realistic given the relations between the parties and I agree with him.
[15] The spousal support provisions in the separation agreement read, inter alia, as follows:
Periodic Spousal Support
- The wife is currently employed as a waitress and intends to enroll in a ten week course for Dental Chair Side Assistant in the fall of 1997. Commencing on the 21st day of April, 1997, and on the same day of each subsequent month, the Husband (or his estate) will pay to the wife for her support, the sum of $300.00 per month until such time as the wife enrols full-time in the said course, at which time the support shall increase to $500 per month where it will remain until the earlier of the following event occurs:
(a) the wife obtains employment at a salary of $20,000 a year or greater; or
(b) the parties meet to review the quantum of spousal support in March of 1998.
The agreement provided for a variation of support based on a material change in circumstances. The material change clause reads as follows:
- The amount of support in paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 28 may be varied by a written and witnessed agreement or by application to the court if there is a material change in the circumstances of the parties or the Children.
[16] The applicant did not take the Dental Chair Side Assistant training course. Although I was invited to draw a negative inference from this fact, I decline to do so.
I have considered the narrow time frame in which the applicant was expected to take the course after having been home full-time with the children for 13 years, as well as the many responsibilities attendant on raising three children, the applicant's efforts to maintain part-time employment, her need to establish a new home for the children, and the continuous financial pressures she was under. The applicant stated she could not afford daycare, which is quite possible. I have also considered the applicant's testimony that she could not afford the expense of the dental chair course because she was falling into debt as a result of the respondent's failure to pay special expenses. In all of these circumstances, I am not surprised that she chose not to take the course.
[17] There was a great deal of discussion in this case about other purported breaches of the separation agreement by the applicant. If the alleged breaches are relevant, and I do not find them so, I find they were adequately explained. It is true that the applicant did not disclose to the respondent that her income exceeded $20,000 during several years as she was obliged to do under the agreement. He of course did not disclose to the applicant "the very significant increases" in his income, nor did he increase his support payments, as found by Scully, J. In any event, I do not condone the applicant's failure to advise the respondent of her change in circumstances, nor do I condone the applicant's apparent effort to alter the payment amount on a support cheque. What I will say is that her actions are consistent with the general theme of her testimony, which was that she was desperately trying to raise the three children on a limited income.
[18] There was also a great deal of discussion about child-related issues. While access was a source of continuing irritation and stress on both sides, I do not find the history of this struggle relevant on the application. The applicant was always the primary parent. The respondent never applied for sole custody of the children - he conceded he "was able to get access over time" and never brought a motion. Having heard the testimony of both parties, I find they both contributed to the ill will that existed between them.
Facts Subsequent to the Agreement
[19] Subsequent to the separation, the applicant worked part-time in the food service industry. She was forced to limit her hours to attend to the children's needs. Her income remained modest. In 2000 she obtained permanent employment with CanWest, however she left this employment to move to London, Ontario, where she had obtained employment selling radio advertising. When the income from this employment proved inadequate, she established her own company, doing much the same work. Unfortunately this plan met with little success.
[20] The separation agreement provided that the matrimonial home was to be sold and the proceeds divided. The home was subsequently sold. The applicant used her share of the proceeds to purchase a new home for herself and the children. She later sold this house and moved to London, Ontario, where she again purchased a house for herself and the children. The applicant used her funds from the various house sales to pay off debts and to cover expenses for the children, including expenses related to their extra-curricular activities, orthodontic work, and university education. In this regard, I note that Scully J. ordered retroactive payments for special expenses, including extracurricular activities, Heather's soccer and orthodontics, as well as retroactive table support from 2005. Scully, J. also ordered a lump sum payment to Cynthia for the costs of her post-secondary education from 2004 to 2008 in the amount of $16,300. Scully, J. found that the applicant had contributed $24,000 to Cynthia's education.
[21] During the marriage, the applicant's income ranged from nil to $7,004. The respondent's income from 1993 to 1996, the first years available in evidence, was in the $54,000 range. The following table agreed upon, (with immaterial exceptions) between the parties, shows their annual incomes after separation:
| Year | Applicant | Respondent |
|---|---|---|
| 1997 | $11,015 | $47,235 |
| 1998 | $8,634 | $48,101 |
| 1999 | $4,701 | $54,443 |
| 2000 | $22,967 | $56,107 |
| 2001 | $25,054 | $54,724 |
| 2002 | $29,178 | $59,241 |
| 2003 | $37,893 | $71,184 |
| 2004 | $37,376 | $93,250 |
| 2005 | $20,923 | $141,744 |
| 2006 | $3,729 | $127,134 |
| 2007 | $7,798 | $134,459 |
| 2008 | $0 | $128,983 |
| 2009 | $6,825 | $113,190 |
| 2010 | $1,408 | $121,811 |
[22] The applicant's current financial statement shows an annual income of $29,085. The largest source of her monthly income is child support: In 2011 she was receiving $976 per month. This support terminated December, 2011. The applicant is currently working at two jobs. She was employed in 2011 by H and R Block for the 2010 tax season (January to May), earning $3,398. She will have the same employment in 2012. She is completing a tax course to better enable her to find work in this area. She is also working in retail sales at Bombay Company where she is earning $10.25 per hour. As of November, 2011, she had earned $2,276 from this work. She also earned $7,575 from her consulting business, and $1,644 from her company. She shows monthly expenses of $3,320.
[23] The respondent remains an employee and minority shareholder in the family company. The gross sales of Estelle Designs are over $2,000,000 per year. Retained earnings are in the $4-500,000 range. The respondent has remarried. His wife is a store manager and earns $40,000 per year. His financial statement shows expenses of $11,700 per month. He shows current income as of November, 2011, of $119,612. The combined family income is approximately $160,000.
Conclusions on the Evidence
[24] A great deal of the respondent's case involves blaming the respondent for her failure to become self-supporting. In particular, he strongly criticizes her for leaving her employment with CanWest. The respondent argues that he is being asked to be an insurer of the applicant's poor choices, and that she is "a low wage earner" not because of the impact of the marriage but as a result of this decision (among others). He maintains that she has sheltered under the separation agreement instead of seeking to improve her condition.
[25] In my view, the applicant's decision to leave CanWest and take up residence with the children in London, while possibly a mistake in retrospect, was within reason. The applicant felt the job was a "dead end." She saw no prospects for advancement in the company, and she was not improving her skills. She secured a job with Standard Radio as a commission sales representative before she resigned from CanWest. She believed her employment would be equally remunerative, and life in London would be less expensive for herself and the children. The applicant should not be punished for this decision.
[26] The respondent presents himself as responsible and "unblemished" in meeting his financial obligations. In fact, as I have indicated, Scully, J. ordered $32,500 in retroactive child support as well as the payment of $16,300 towards Cynthia's university costs. If the applicant can be said to have sheltered under the agreement, as the respondent argues, so can the respondent.
[27] Only the applicant and the respondent testified in this case. It is clear that the animus between the parties persists, and to a degree this coloured the testimony of each. Nonetheless, I have not found it difficult to determine the facts essential to determining this application. My conclusions are as follows:
The marriage was "traditional." The applicant remained at home and took responsibility for the domestic aspects of the marital life. The applicant was the primary caregiver of the children, and the respondent was the primary breadwinner. This was not disputed;
The decision that the applicant would stay home, rather than place the children in daycare, was clearly mutual;
The applicant has no post-secondary education and developed no marketable skills during cohabitation;
The applicant had no meaningful or substantial employment during the marriage. I find this circumstance occurred not because she lacked the will or the desire to work, but because her services were required to look after the needs of the three children;
The respondent obtained a post-secondary degree during the marriage;
The respondent was fortunate to have a family business to employ him. He began at the bottom, in shipping and receiving, and continued a steady climb to a management position. He was unencumbered by the daily concerns of looking after three children;
At the time of the separation, the children were young, 12, 9, and 5, and the applicant continued to be absorbed with their care. She was limited in the hours she could work, and in her ability to focus on her own advancement;
The applicant's financial stresses were exacerbated by the respondent's under payment of section 7 expenses – a matter that was only resolved with Justice Scully's decision;
Similarly, child support was only adjusted to conform to the respondent's income by Justice Scully's decision in 2009. These funds were not available to the applicant when she needed them.
[28] In the result, I find that the respondent was able to rely on the applicant's assumption of domestic and child-care responsibilities during the marriage, and after separation, so that he could devote himself to working hard and advancing in the business, which he did. The marriage and the separation did not hinder his progress in the business. The effect of the marriage and the separation was to improve the respondent's economic prospects and to impair the applicant's.
[29] I accept the applicant's evidence that she has been seeking to improve her position – she has set up her own company, she has found employment, and she is attempting to improve her skills. Nonetheless at this time she has not achieved reasonable self-sufficiency.
[30] The respondent has climbed the corporate ladder, and it is likely that he will run the company when his parents fully retire. His income has increased steadily. His second wife is employed and is not a dependent. The family income is $160,000. The respondent is no longer responsible for child support and has the capacity to pay spousal support.
Analysis
1. Material Change in Circumstances
[31] The separation agreement contained a material change of circumstances clause. It does not contain a clause releasing claims to further spousal support. Since the date of the agreement, the respondent has enjoyed a significant increase in his income. The applicant has not met with the same success. The termination of child support leaves her without adequate means to support herself. Both the termination of child support, and the substantial increase in the respondent's income, are sufficient to establish a material change in the circumstances of this case. Thus the Court may consider a variation in spousal support.
2. Entitlement
[32] Before addressing the issues of quantum and duration of support, I wish to address the applicant's entitlement to a variation of spousal support. I find that the applicant's entitlement in this case is established under the theories of entitlement articulated in Bracklow: (1) compensatory, (2) contractual, and (3) non-compensatory.
[33] The applicant's contractual entitlement arises under the separation agreement, which, in providing for spousal support, and for a variation based on material change, acknowledged that the applicant was entitled to spousal support over time. As I have indicated, material change has been proven.
[34] The applicant's non-compensatory entitlement arises from need. The applicant is not currently self-sufficient. She does not earn enough income to support herself. The applicant's income was $7,004 when the agreement was negotiated and $6,825 when support was terminated, with variations in between which I have set out above. The termination of child support leaves her impoverished.
[35] Finally, I find a strong compensatory claim in this application. In the case of Roseneck v Gowling, [2002] O.J. No. 4939, the Ontario Court of Appeal described compensatory support as follows:
[61] Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse's career and loss of economic opportunity sustained as a consequence of raising children. This is particularly applicable where a property division is insufficient to achieve this result: see Moge, supra, at pp. 843-49 S.C.R. Where a spouse has the capacity to be self-sufficient but the spouse's ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared: Linton v. Linton (1990), 1 O.R. (3d) 1, 75 D.L.R. (4th) 637 (C.A.). As pointed out by Carol Rogerson in "Spousal Support Post-Bracklow: The Pendulum Swings Again" (2001) 19 C.F.L.Q. 185 at p. 191, the compensatory principle fits most comfortably the situation where, as a result of having children, the parties have developed an interdependency and merger of their economic lives.
[36] The respondent asserts that his employment and advancement were not in any way dependent on the assumption of responsibilities by the applicant during the marriage. He says he could have achieved the same success even if he had full responsibility for the children. He argues that his success arose from his own diligent work, the improvements in the market for his goods, and because he was in a family company.
[37] The respondent also denies that the applicant suffered any damage to her earning capacity as a result of the marriage. He adamantly denies responsibility and chooses to blame the applicant for her poverty. The respondent argues that at the date of the marriage the applicant had completed all of the educations she intended to have and had no plans to continue with her education. He submits she did the same sort of work after the marriage as she had done prior, and never indicated any intention to upgrade her skills. He states that she was always in the workforce, either full or part-time, yet he refuses to acknowledge that the applicant was making reasonable, if unsuccessful, efforts to become economically self-sufficient.
[38] The respondent focuses on the CanWest job as if that is the only factor affecting the applicant's financial situation. The submission made by respondent's counsel that the applicant's income would have improved significantly had she remained in the CanWest position is purely speculative. Furthermore, the respondent ignores the fact that the applicant has always had a marginal position in the workforce, and that a misstep carries greater consequences for her than it would for him, protected as he has been by his parents' business.
[39] The respondent completed his education during the marriage, and while the children were infants. He started in the family company at the outset of the marriage and has remained there. He began at the bottom of the workplace hierarchy, and, although I did not hear from his parents, considering their requirement that he start work in the warehouse, I am doubtful he would have advanced if he were not prepared to devote time and energy to their business. In this effort he was aided by the applicant's assumption of domestic and child care responsibilities, both before and after separation.
[40] Listening to the respondent testify I was struck by the respondent's refusal or his inability to recognize that the applicant contributed to his success by her assumption of domestic responsibilities. He equates his presence in the home in the evenings or on the weekends with the applicant's day to day full time care of the children. While he recognizes his own financial difficulties in the early years of the separation, he does not acknowledge the applicant's continuing financial struggles to support herself and the children during the years the children grew up in her home.
[41] The applicant states that as a result of her assumption of child-care responsibilities she "forever lost 15 years" and that it "affected the rest of my life." I accept this testimony.
[42] In Moge the Court observed that:
The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being.
[43] The circumstances of the parties in this case are consonant with those described in Moge: The husband and wife agreed upon a traditional division of labour within the marriage. As a result of this arrangement, the applicant suffered economic disadvantages and hardships from the marriage and its breakdown. Her contributions to the marriage were non-monetary and came in the form of work at home: taking care of the household and raising children. There is no dispute about this. The traditional division of labour impaired her ability to maximize her earning potential, while enhancing the earning potential of the respondent. Because the applicant was tending to the domestic sphere, the respondent was free to pursue economic goals. Once the marriage dissolved, the applicant was left with a diminished earning capacity while the respondent's was embellished. This is so notwithstanding that his employers were his parents.
[44] Furthermore, it is important to remember that the economic consequences of the marriage do not end with the separation of the parties. Not only was the applicant affected by the arrangements during the marriage, she was also impacted by the arrangements afterwards. The applicant's difficulties were exacerbated by her enduring responsibility for children of the marriage. As the court stated in Moge:
The diminished earning capacity with which an ex-wife enters the labour force after years of reduced or non-participation will be even more difficult to overcome when economic choice is reduced, unlike that of her ex-husband, due to the necessity of remaining within proximity to schools, not working late, remaining at home when the child is ill, etc.
[45] Moge stands for the proposition that in circumstances such as these, spousal support may be a way to compensate such economic disadvantage.
[46] In the result, I conclude that the applicant is entitled to a variation of support. There has been a material change in circumstances. The applicant is entitled to a variation of support. Her entitlement is based on contract, on need, and on compensation.
3. Quantum and Duration – The SSAG
[47] Once entitlement is established, the SSAG may be consulted on the issues of quantum and duration. I have considered submissions from counsel for the applicant based on the SSAG. In Fisher, which was delivered prior to the release of the final version of the SSAG, Lang, J.A. stated that the Guidelines "only apply to initial orders for support and not to variation orders". In making this statement, in my view, the Court was making a descriptive, rather than a prescriptive, statement. It is now clear that the SSAG have a role to play in variation applications. In "The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version", dated July 1, 2008, the authors of the SSAG state:
The Advisory Guidelines "do apply" on variation and review. How they apply depends on the issues raised on the particular application to vary or to review.
[48] In this case there are few of the complexities adverted to by the authors, such as the impact of re-partnering, re-marriage and second families. As both Scully, J. and Paisley, J. found, the SSAG is a "useful tool" in this case.
[49] I will deal with the issue of duration first. The $300 per month provided for spousal support in the separation agreement was clearly inadequate. It is clear that in order to give priority to child support, the parties agreed to an amount of spousal support that was less than it otherwise would have been. They had three young children when they separated, and, given the family income, there was little room left for spousal support. Spousal support was crowded out by child support, to the substantial disadvantage of the applicant. This not uncommon situation was foreseen in the SSAG, and is the reason for the "small amounts, inadequate compensation under the with child support formula" exception. Indeed, the section 15.3 exception recognizes that spousal support may have to continue past the time limits in the precise circumstances of the case at bar.
[50] The applicant is now 53 years of age. Considering this fact, as well as the other circumstances I have described, I am uncertain whether self-sufficiency will be possible for the applicant. Again I refer to Moge:
It is often… totally unrealistic to expect that a 45- or 50-year-old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed
[51] The applicant has not been entirely out of the job market. I believe she is motivated to find reasonable employment and she may be successful either in her current work with H and R Block, or in her consulting business. Nonetheless, I consider it realistic at this time to order support of indefinite duration. The parties will provide each other annually with tax returns and notices of assessment. In the event of a material change in circumstances, either may apply for a variation.
[52] In determining quantum, I turn to the question of whether to including the post-separation income of the respondent in the spousal support calculation. In M. (A.A.) v. K. (R.P.) 2010 CarswellOnt 1139 (Ont. S.C.), Pazaratz J., reasoned as follows:
… I have determined that the Applicant has an entitlement to spousal support on both compensatory and non-compensatory grounds. The compensatory component relates not only to economic disadvantages which the Applicant experienced which delayed and undermined her veterinary career and income. The Respondent also experienced a concomitant economic advantage in that the Applicant's assumption of significant child-related responsibilities at least somewhat enhanced the Respondent's ability to devote time and attention to growing his very profitable business. In this case both parties' incomes have increased since 2004. But the gap between them has continued to be significant. Part of the Applicant's compensatory claim relates to the fact that as a veterinarian her income eventually grew and undoubtedly it will continue to grow - but she still lags behind the Respondent, and perhaps she'll always lag behind - because of the enhancement or head-start the Respondent obtained when his career was given primacy during the early years of the marriage. To simply ignore continuing income gains by the payor, while factoring in changes in the recipient's earnings, would almost inevitably preclude consideration of an important component of a compensatory claim. (pars. 205-207)
I adopt this reasoning. I also have found a strong compensatory element in the case before me.
The respondent is in the same employment he had during the marriage. The applicant's contribution by the assumption of child care responsibilities during the 13 years of marriage, and after the separation, may be seen as causally related to the respondent's continued success and advancement in his career. (Hartshorne v Hartshorne [2009] B.C.J. No. 1050); The respondent's income began to climb significantly in 2003, only 6 years after the separation, and by 2005 had assumed its current levels. While I accept that market forces played a role in the rise of the business during these years, this fact does not negate the respondent's contribution. Thus, in considering quantum, I intend to rely upon the post-separation income of the respondent.
[53] The "User's Guide to the Final Version" of the SSAG states that in cases such as the one at bar:
The without child support formula will be used to redetermine the amount of spousal support. (As for duration, given that the class of cases to which crossover applies will be medium to long marriages, duration will be driven by length of marriage and will be the same under both formulas.). These are cases with strong compensatory claims, as compared to medium-length marriages where there were no children of the marriage. One would thus expect amount and duration to be near the high end of the range. (Emphasis in the original)
[54] I am satisfied that the spousal support must be increased to provide adequate compensation for the applicant. At the date of Scully, J's order, the applicant was receiving $363 per month as spousal support. The respondent's income was found to be on average $126,191. The applicant has produced two calculations of possible ranges of awards based on the SSAG. I am utilizing the calculation based on an income for the respondent of $120,000, a rough equivalence to his income over the last few years. The applicant continues to have an obligation to support herself, and considering her employment history, I find it reasonable to impute minimum wage to her of $20,000.
The child support having terminated, the spousal support must now increase. The support should be at the higher end of the range. The high end of the range in this case, based on the calculations furnished to me, is $2,206 per month.
[55] I am ordering support payments of $1,900 per month, which takes into account the $300 per month which was paid. The order will commence July 1, 2009, and be paid on the first of each month thereafter.
[56] There will be a support deduction order.
[57] Written submissions on the costs of this and the previous proceedings may be made within 30 days and must include a bill of costs.
Released: March 16, 2012
Justice Marion Cohen