Court File and Parties

Court File No.: Brampton 9/10 Date: 2016-10-25 Ontario Court of Justice

Between:

URSULA CREW Applicant

— AND —

PRAFUL LOBO Respondent

Before: Justice A.W.J. Sullivan

Decision on Application for Spousal Support, dated February 20, 2014 and a Motion to Change, dated May 20, 2014

Heard: August 18, 2016

Decision Released: October 25, 2016

Counsel:

• Carol Anne Mathews, for the Applicant
• Self-represented, for the Respondent

SULLIVAN J.:

Introduction

[1] This is the decision in the Application for Spousal Support, dated February 20, 2014, and a Motion to Change, dated May 20, 2014 commenced by the applicant Ms. Ursula Crew, to change the June 01, 2010 order of Justice Pawagi in regards to child support and section 7 costs.

[2] The parties have one child, Jacob Lobo, born September 25, 2004.

[3] This litigation centers around three claims by the applicant as follows:

1. Retroactive recalculation from 2010 of Mr. Lobo's monthly child support payments based on disclosure of his annual income.
2. Section 7 contributions.
3. Spousal support.

[4] The parties consented to resolve this matter by way of a paper hearing with some cross-examination. The parties were asked to file distinct affidavits outlining their evidence. On the day of this hearing, August 18, 2016, the parties provided their main evidence in submissions and each cross-examined the other. This was done in both a thorough and polite manner and this court commends both the applicant and the respondent in the way they conducted themselves during this litigation. It was both courteous and fair.

[5] It is not easy on the parties to revisit financial matters when it comes to issues of retroactive child support and spousal support. A decision will have an impact on the financial affairs of both parties and how they are able to overall manage their lives.

[6] Ms. Crew brought this Motion to Change, principally based on Jacob's special needs. This case is one revolving around the needs of Jacob from birth, today and his near future.

Evidence of the Parties

[7] The evidence of Ms. Crew is that Jacob requires considerable daily assistance. He is 12 years old and according to Ms. Crew he requires constant attention, both for his day-to-day activities as well as his schooling.

[8] According to the information filed, Jacob was diagnosed on June 15, 2010 with Autism Spectrum Disorder (ADS) from the pediatric outpatient services at Trillium Health Services. ADS is a neurological development disorder that covers a wide range of deficiencies and/or delays, with each case being somewhat unique.

[9] Ms. Crew testified that Jacob is prone to emotional meltdowns and can be explosive at school and in the community, which requires her intervention at times. This can be physically and emotionally draining and requires her to work part-time to be able to be available for Jacob. She cannot handle a full-time job at this point. She works part-time driving a school bus.

[10] Ms. Crew believes that as Jacob grows older his challenges will be greater and he will still require her full attention and dedication with assistance and other supports to ensure his full potential.

[11] She argues that Mr. Lobo does not understand and will not commit the time required to address Jacob's needs, as well as the fact that he minimizes Jacob's needs. She would like very much for Mr. Lobo to increase his time with Jacob and share in his care.

[12] Ms. Crew is seeking retroactive recalculation of Mr. Lobo's monthly child support payments backdated to the date of July 2010.

[13] Regarding this point, Mr. Lobo does not necessarily disagree. He recognizes that his yearly income disclosure should have been made and adjustments made each year from 2010. He does, however, ask for a reduction in the amount that he owes.

[14] Ms. Crew is seeking a contribution from Mr. Lobo in proportion to their respective income for special expenses, such as speech therapy and other therapeutic programs that Jacob would benefit from both physically and emotionally to improve his educational potential. She has in place some programs that are subsidized from different government sources but the speech therapy, for example, is not and must be paid for privately according to her evidence.

[15] In terms of spousal support, Ms. Crew is seeking assistance as she believes she can currently only work part-time in order to address Jacob's needs. She states that her current job assists her with the demands required to care for Jacob which are at times overwhelming. She believes she is not at this stage able to commit emotionally and physically to more challenging or full-time employment, although she knows she has the potential to do so and believes that driving a bus is well under her educational level and capacity.

[16] Ms. Crew was asked to serve and file an updated Support Mate spousal support calculation which was done on September 1, 2016. This is found at tab 6 of Volume 5 of the continuing record. It suggests potential monthly spousal support with child support payable of a low range of $912.00, midrange of $1,184.00 and the high level of $1,473.00 per month. Depending on whether spousal support is ordered and at what level, Mr. Lobo's proportionate section 7 contribution costs would be between 70% to 76%.

[17] The parties had an eight-year common-law relationship from June 2001 to April 10, 2009.

[18] Ms. Crew argues that Mr. Lobo has been free to pursue his career full-time while she has not, as she took on the task of caring for Jacob and assuring his needs have been met, which she describes has being like a full-time job.

[19] She argues that Mr. Lobo has had little involvement in Jacob's day-to-day life. He does, however, have Jacob every other weekend from Friday at 8 p.m. to Sunday at 6 p.m. He does not take him on long weekends or during the summer and Christmas on a regular basis because of his job responsibilities. This he recognizes has been an issue.

[20] For example, Ms. Crew testified that Mr. Lobo could not assist her in December 2014, when she asked him to care for Jacob for three days as she had surgery and needed to recover. Mr. Lobo indicated at that time he could not take the time off work to accommodate this request although Ms. Crew noted that she did not ask him to take time off work but rather simply bring Jacob to and from school.

[21] Mr. Lobo, in his affidavit of July 28, 2016, located at tab 4 of Volume 5, argues that Ms. Crew has the ability to work in the area of human resources and business management as she had done so when they both worked together for a company called ADP Canada. He argues that in 2006 Ms. Crew was promoted to the position of Business Analyst. In 2007 she decided to go on stress leave. It was around this time that the relationship grew difficult. In June 2008 Ms. Crew obtained her real estate license and according to Mr. Lobo he had hoped that this would signal the end of their difficulties.

[22] He recalls in 2008 that there was a joint decision to withdraw Jacob from daycare as they could not afford this cost. The way he remembers the situation is that Ms. Crew made little effort to establish a real estate practice and in December 2008 she obtained her current position as a part-time bus driver. It was shortly after this that he recognized it was not her intention to return to full-time employment and the relationship ended shortly thereafter when he separated from Ms. Crew on April 10, 2009.

[23] Mr. Lobo argues that at best Ms. Crew's request for spousal support is based on her need and he notes that she has not provided an expert report that would support her claim that she needs to be available for their son Jacob, therefore maintaining this part-time work as a bus driver.

[24] Mr. Lobo argues that the doctor's note found in Ms. Crew's affidavit, entered as Exhibit 'A' from Dr. Nemtean, is not an expert report in the field of child psychology or child autism and that this doctor's letter is an unqualified report pursuant to 20.1 of the Family Law Rules. Mr. Lobo argues that this report is an informal opinion and not of a medical report contemplated by Rule 20.1 (9). Nor has Dr. Nemtean provided an acknowledgment of his duty as an expert under form 20.1 of the Rules and therefore he has failed to comply with the basic requirements of the Evidence Act, and therefore the court should not accept this report as evidence.

[25] Mr. Lobo also argues that the report of Dr. Jonathan Beard fails for similar reasons as noted above.

[26] Mr. Lobo, in his evidence, suggests that Jacob is mildly autistic and that his son's level of care is considerably lower than a child with severe autism. Mr. Lobo does concede that Jacob requires close supervision as he is given to impulsivity and that Jacob does require assistance at his school to help monitor his behavior.

[27] He believes that Ms. Crew has not provided evidence of her care obligations towards Jacob that would preclude her from performing full-time employment and there is no evidence showing how often she is called to the school and other specifics that would support her claim that Jacob requires the day-to-day attention consuming her time or rendering her unable to be self-sufficient and work full-time.

[28] Mr. Lobo underlines that he and Ms. Crew share Jacob on weekends.

[29] He states that Jacob, as an autistic child, would have benefit of funding from several provincial, federal and city funding programs. He does, however, not provide evidence as to what these programs might be.

[30] Mr. Lobo believes that any alleged need for support by Ms. Crew is due to the lack of her efforts to secure employment commensurate with her age, ability and experience. He argues that there is no connection between Ms. Crew's support application and the relationship that ended and that she has an obligation to provide support for herself in accordance with her needs. He also notes that this support request was started some four years after the separation and did not stem from the relationship breakdown.

[31] In terms of his child support obligations, all agree that Mr. Lobo has lived up to his obligations and paid based on the initial amount ordered. Mr. Lobo does not argue with the fact that there needs to be a recalculating of child support owed each month from the 2010 order.

[32] Mr. Lobo indicates that he believes that given the delay in bringing the Motion to Change, some four years from the last order, any retroactive request dating back some six years now could potentially mean that he owes arrears of $17,600.00, which far exceeds his financial ability to pay and would create a hardship. Mr. Lobo does not present a hardship calculation under the provisions in the Child Support Guidelines but argues that he feels he can pay an amount of child support arrears owing of $4,483.92 in installments of $200.00 per month. When questioned on how he came to this figure, Mr. Lobo said he felt this was a reasonable number but no other explanation was provided.

Cross-Examination of the Parties

Cross-Examination of Ms. Crew

[33] Mr. Lobo questioned Ms. Crew from which the following were the most significant pieces of evidence that this court considered relevant to the issues at hand:

[34] When asked what her efforts have been to gain full-time employment, Ms. Crew indicated that given their son's needs, she is required to be available in a flexible way and her current part-time work as a bus driver provides this flexibility.

[35] She indicated that it gives her some mental space. She felt that driving a bus is beneath her intelligence and capabilities. She felt this was a transitional job and as well this job allows her to be available for Jacob during difficult times which occur at school on occasion and also permits time to take him to appointments.

[36] Ms. Crew testified that Jacob looks towards her for everything each day and that during the school week he starts preschool at approximately 7:30 a.m. and there is some afterschool care until about 6 p.m.

[37] When questioned why their son is in pre and afterschool care it was noted that before school was important for him as she begins work early. She described how Jacob often plays in isolation and that he relates well to younger children and is quite sympathetic and empathetic towards them.

[38] She described how at one point his former school had taken Jacob out of the Peel Lunch and after School Program (PLASP) which caused difficulties, however Jacob's current school, Riverside School, asked that he be reregistered and involved in this program as it is recognized to assist him with the formal day setting when he comes to school. It should be noted that Mr. Lobo pays for this program for Jacob.

[39] Ms. Crew testified that Jacob had an emotional meltdown in March of this year. He is getting bigger physically and is strong. She described his current height at 5'4" and weighs about 100 pounds and on one occasion at school he began throwing chairs and was showing signs of violence. Ms. Crew was called and when she arrived, there were approximately five teachers in attendance. When questioned about how often this might occur at school she indicated approximately three to four times. On one occasion Jacob hit another child and he was warned about this.

[40] In his classroom he does have some supports, a Ms. Connelly, and he does work with the modified Individual Educational Program (IEP). He needs extra assistance with English language reading and comprehension. He gobbles up a lot of information and all agree that Jacob has the ability to retain information and the fact that he does have quite a large body of knowledge about different topics, but he has trouble relating this knowledge in a contextual way to other parts of his educational experience and knowledge.

[41] Jacob remains emotionally and socially delayed.

[42] The next year is going to be important to Jacob as it is a transitional year to grade 7 and 8 in a new school where he will be working in a "contained classroom" environment. This will be at Camellia Public School. The idea is this new school will hopefully make him more independent, which according to Ms. Crew, is not there yet as he has trouble following his present schedule. It is hoped that the "contained classroom" environment will help Jacob focus at tasks at hand.

[43] Ms. Crew was not shy in indicating that she felt, as Jacob's mother and caregiver, that she is an expert in terms of his needs.

[44] Mr. Lobo asked about how at times Jacob has missed his medication and this needs to be monitored. Ms. Crew indicated that even while on medication; at times it does not eliminate the possibility of Jacob having a meltdown over things such as food or the texture of food.

[45] Ms. Crew spoke about how she encourages Jacob to take his own medication as he needs to manage this on his own. However, she monitors this each morning. She did admit that on occasion he does not take his medication.

Cross-Examination of Mr. Lobo

[46] Mr. Lobo was questioned about any additional time that he has taken to assist Ms. Crew in Jacob's needs. He was asked when was the last time he took Jacob on vacation. Mr. Lobo indicated that that was some two years ago when he took one week off and he recalls that he had his son on vacation in 2012, 2013 and 2014 but not 2015 and 2016.

[47] He did admit that it is rare that he has taken an extra weekend other than the regular schedule of access, which is every other weekend and he does have his son over Christmas and during some of March break. He did admit that his job is a high-stress job that consumes a lot of his time, including some time on weekends regularly.

[48] Mr. Lobo was quite candid in that he recognizes that Ms. Crew is an excellent mother to Jacob.

[49] He was asked about how Jacob is when he spends time with him on weekends. Mr. Lobo stated that during the overnights, from Friday to Sunday which is two nights, at times there is some difficulty with Jacob sleeping; however Mr. Lobo approaches the situation by lying down with his son. He indicated that he prefers to try alternative approaches to assist Jacob when in need rather than relying simply on medication.

[50] He does not see the meltdowns that were described by Ms. Crew; however, he does admit that there are significant challenges.

[51] When asked if these challenges might be different as Jacob gets older, Mr. Lobo felt that Jacob is getting better. He does recognize that Jacob has the ability to gather and retain specific knowledge on a variety of topics but that Jacob has difficulty relating that information into his day-to-day life and often he needs to be brought back to a task at hand in his daily routine.

[52] When asked if he could spend more time with Jacob, he admitted that he wants to but he cannot presently because of his extended work hours.

[53] Mr. Lobo explained that he works long hours and then also puts in time at home. There is also time on Sunday when he works from home because international markets are opened earlier, given the difference in the hours of operation. He admitted while he's doing his job it would be difficult to assist in caring for Jacob as he is on the phone quite a bit. He agreed that he has not offered respite care to Ms. Crew.

[54] He felt that if their son is in daycare from 7:30 a.m. to 6 p.m. there is no reason why Ms. Crew could not look for a full-time job.

[55] He did acknowledge that he has not been to Jacob's school recently and the last time was in 2013 and that he hasn't attended a parent-teacher night for Jacob.

[56] When asked about the section 7 expenses for Jacob, in particular speech therapy, Mr. Lobo testified that currently he is paying $1,200.00 per year as general section 7 costs and is not certain where this money is going. He said he needs to understand how that money is being spent.

[57] Mr. Lobo acknowledged that he owes retroactive child support based on his increased income as set out in the Child Support Guidelines, and that if need be he would borrow funds to make up the difference although managing this would be difficult.

In terms of why he did not provide his updated income tax returns to adjust his monthly support payments over the last six years, Mr. Lobo testified that he did not know exactly why this did not occur, other than the fact that possibly communication with Ms. Crew has not been good.

[58] In closing comments on behalf of Ms. Crew's counsel, Ms. C. Mathews, she argued that the evidence shows that Mr. Lobo has little insight into what is required to manage Jacob's needs on a daily basis. Ms. Mathews suggested that Mr. Lobo is quick to conclude that Jacob's needs are minimal and that therefore there is no issue with Ms. Crew finding full-time employment or better employment. Ms. Mathews argued on behalf of Ms. Crew that this position is an uninformed one and that Mr. Lobo has not taken the time to speak with the professionals, either at Jacob's school and/or Jacob's doctors about his son's real needs.

[59] In Mr. Lobo's closing comments, to his credit, he agreed that he has not spent extra time with Jacob.

[60] He argues that although he owes retroactive monthly child support, he requests, however, that the court would not order that he pay the full amount owed.

[61] In terms of section 7 costs, he would want first to have an agreement on what these are before incurring the costs and that paying more than he currently does would be a hardship, although he did not make a classic hardship calculation argument.

[62] In terms of spousal support, he argues that he does not have the ability to pay based on his current income and that Ms. Crew should have made this request some six years ago and it is unfair to do so today.

The Law and Analysis

[63] The legislation that this court considered is found in the Family Law Act [FLA]:

Section 1 (1) specifies who are spouses. Section 29 extends this eligibility for support to two people who have lived together continuously for three years or who have lived together in a relationship of some permanency and have a child together.

[64] Section 30 of the FLA states that:

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30 ; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).

[65] Subsections 33 (8) and (9) deal with the purpose of spousal support and with the factors that must be considered in making an order. The subsections are as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8) ; 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependent's and respondent's current assets and means;

(b) the assets and means that the dependent and respondent are likely to have in the future;

(c) the dependent's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependent's and respondent's age and physical and mental health;

(f) the dependent's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures;

(h) any legal obligation of the respondent or dependent to provide support for another person;

(i) the desirability of the dependent or respondent remaining at home to care for a child;

(j) a contribution by the dependent to the realization of the respondent's career potential;

(k) Repealed : 1997, c. 20, s. 3 (3).

(l) if the dependent is a spouse,

(i) the length of time the dependent and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed : 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependent to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9) ; 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

[66] In Halliday v. Halliday, [1997] O. J. No. 5241, 37 RFL (4) 192 (Ont. C. A.) the court directs that part three of the FLA charts a course which a trial judge must follow in determining whether a spouse is entitled to support and, if so, the amount of support in the form of support. The trial judge must:

a) determine whether the claimant was a spouse within the meaning of s. 29;

b) consider the respective needs and capabilities of the parties under s. 30;

c) consider the purpose of the support order that s.33(8) and, in determining the amount and duration of support in relation to need, consider all the circumstances of the parties, including the factors stipulated in s 33(9); and

d) choose from the various forms of support contained in s.34(1) in awarding support.

Arrears in Child Support and Section 7 Needs

[67] Regarding the arrears owed in child support, given Mr. Lobo's increase in salary over the past six years, he concedes that he owes these payments, but requests the court set less arrears owing.

[68] As noted earlier, Mr. Lobo, in his pleadings, does not argue with the fact that there should have been a recalculation in his monthly child support payments each year based on an increase in annual salary.

[69] There is no argument that there has been a material change in that year after year Mr. Lobo's salary changes and that because of effectively what has been noted as poor communication between the parties, annual adjustments in child support payments have not been made each year.

[70] In paragraphs 76 through 83 of his affidavit, dated July 20, 2016, Mr. Lobo sets out the calculations that he believes are the most accurate in establishing the arrears owed in child support as being $14,963.04 as of August 1, 2016.

[71] This court has considered Mr. Lobo's request that the arrears that he owes in child support be set substantially lower than the amount noted above, considering the adjustment through November 1, 2017, given Mr. Lobo's 2016 monthly payment set at the Child Support Guideline table amount of $830.36.

[72] This amount of money would have offered Jacob and Ms. Crew some benefit on an annual basis if it had been paid. Jacob might have been able to take advantage of a program in the community or an event with his mother that would have been advantageous to him. A child remembers special occasions in the summer where they simply are able to have fun or learn something new that they take with them for the rest of their life. Although potentially a small amount each month to a parent's budget, to a child, being able to participate in a program and/or activity might have a lifelong impact on that child. This court does not want to suggest that Mr. Lobo has not been paying monthly child support. He has, but not at the level that he should have.

[73] In considering Jacob's needs and each of the parents' overall financial situation, this court does not see why Mr. Lobo should not pay the arrears owing. He did intimate that he might be able to take out a loan to do so, although he did indicate that any extra payments would be a burden on his budget.

[74] Considering the above, the court sets Mr. Lobo's arrears in child support owing at $14,963.00 to be paid either in full within 30 days of this order or at the amount of $500.00 per month commencing November 1, 2016 payable to Ms. Crew through the Family Responsibility Office. A support deduction order shall issue.

Section 7 Expense

[75] With regards to the section 7 expenses requested by Ms. Crew, the court finds that the request for speech therapy would be in Jacob's best interest and a legitimate section 7 costs that the family would have found a way to pay for if they remained together as a couple and are capable of doing this now.

[76] This court does agree with Mr. Lobo that before any section 7 costs are incurred, the parties should discuss and agree before incurring the cost and one parent cannot simply incur the cost and expect the other parent to pay this without first consultation and agreement.

[77] This court's order for Jacob's section 7 costs is that there may be one every six months or one per year, in addition to the before and after-care that Jacob receives now through PLASP. The parties will need to first agree on what this would be before incurring the costs. Ms. Crew will provide to Mr. Lobo a receipt for the section 7 costs which he will pay within 15 days of receiving the receipt to the Family Responsibility Office. In 2016/17 Jacob may participate in speech therapy and such a program shall be located by Ms. Crew in consultation with Mr. Lobo. The parties will share proportionate to their incomes all section 7 costs as agreed to using support calculation software program to calculate each of their contribution; this includes the PLASP program that is currently being paid completely by Mr Lobo.

Spousal Support

[78] It is agreed that the parties cohabitated from approximately June 2001 to April 2009 at which time Mr. Lobo declared that the financial stresses in the relationship made it untenable for him to continue residing together. As he put in his pleadings, it was a separation that was irreconcilable.

[79] After the separation, Jacob resided, as he does today, with his mother, visiting with his father.

[80] Jacob's needs are that of an autistic child. The parties differ, however, about the level of his needs and whether Ms. Crew is required to be available to Jacob during the day or whether she could hold down a full-time job as effectively Jacob is cared for before school and after school and at school.

[81] Mr. Lobo argues that at the time the parties lived together they were both working for a large human resources and business management company called ADP Canada. In 2007 Ms. Crew resigned from this work. Mr. Lobo seems to recognize that there was stress and office politics involved that caused Ms. Crew to resign. Shortly after, Ms. Crew obtained her real estate license but this never took off and in December 2008 she began working in her current part-time work as a school bus driver.

[82] Mr. Lobo recognizes that when Ms. Crew filed her initial application in 2010, at the time, amongst other relief, she did ask for spousal support. The parties eventually settled through negotiations and it was his understanding that she had withdrawn her claim for spousal support.

[83] There is nothing in the final Minutes of Settlement or Order that the claim for spousal support was withdrawn. Mr. Lobo feels that now, some five years after separation, it is unfair to make such a claim and that at best, Ms. Crew's claim should not be considered as compensatory or contractual. At best, it is limited to need although on this issue Mr. Lobo argues that as Ms. Crew has been able to get by thus far, there is no needs-based claim.

[84] He further argues that Ms. Crew has not provided evidence of any limitations that would limit her ability to work full-time.

[85] Mr. Lobo argues that Ms. Crew has not provided an explanation for the delay in applying for spousal support and that Ms. Crew was not financially dependent on him during the relationship and that her claim is based solely on the difference between their respective incomes and not due to economic hardship that is a result their relationship breakdown.

Delay in Bringing Spousal Support Claim

[86] In regards to Mr. Lobo's submission that effectively Ms. Crew's spousal support claim should be dismissed for delay, the following should be considered:

[87] In MacKinnon v. MacKinnon (2005), 75 O.R. (3d) 175, the Ontario Court of Appeal directs that a support claim is properly considered from the time it is brought and delay does not necessarily vitiate a spousal support claim.

[88] Section 16(1) of the Limitations Act, 2002 provides there is no limitation period for claims of support under the FLA.

[89] In Robson v. Robson (2006), ALBQ 34 (Alta. Q.B.) at paras. 19 and 20, the court concluded that a delay in seeking spousal support does not preclude an award of support. Further, while there may be a presumption the claimant has no need, this presumption may be overcome by the facts of the case:

Although the parties were separated by April 2002, the Applicant did not request court-ordered spousal support until November 2004, in response to Dr. Robson's commencement of divorce proceedings. While this represents a delay of over two years, I agree with counsel for Ms. Robson that this delay should not substantially prejudice Ms. Robson's entitlement to support today. As Rideout J. stated in Rupert v. Rupert, (1999), 207 N.B.R. (2d) 177 (Q.B.), courts are reluctant to eliminate a spouse's claim for support on the basis of delay. Delay in prosecuting a claim for spousal support may affect an applicant's entitlement to retroactive support, but it should not preclude an award of support from the date of application or trial: M (L.L.) v. M. (D.A.) 2002 ABQB 724, (2002), 325 A.R. 201, 2002 ABQB 724 at para. 11.

While there may be a presumption that a spouse who has failed to apply for support in a timely fashion must be able to take care of herself, this presumption may be rebutted by the facts in each case: Rupert at para. 24. Ms. Robson had available for her support an unequal division of the proceeds of the sale of the Rhode Island home between April, 2002 and November, 2004. During that period of time, Dr. Robson was employed part-time and living off his portion of the sale proceeds and his cashed-in pension.

[90] Delay itself is not a bar to a claim for spousal support. However, delay can be a factor where there is an understanding by one party that a claim for spousal support would not be started after division of property. Morgan v. Morgan, 2006 NLTD 6, [2006] N.J. No.9 (NLTD)

[91] Delay does not bar a claim for spousal support, provided there is a reason for the delay and events that have transpired since the delay. Walker v. Greer, [2003] O.J. No. 3396 (SCJ).

[92] Van Rythoven v. Van Rythoven: while a factor to be considered, delay is not fatal to a claim for spousal support: see Hillhouse v. Hillhouse, (1992), 43 R.F.L. (3d) 266 (B.C.C.A.). In view of the delay, the court found that it would not be fair or equitable to make the award retroactive. That is the same solution adopted by the British Columbia Court of Appeal in Hillhouse.

[93] In addition, a spouse's economic hardship can arise from that spouse's reduced standard of living after separation.

Economic Hardship

[94] Fisher v. Fisher, 2008 ONCA 11, 47 R.F.L. (6th) 235 (Ont. C.A.): economic hardship can arise from the wife's reduced standard of living after the separation. Also: Barraco v. Scott, 2011 CarswellOnt 8325 (Ont. S.C.J.): Need and standard of living can serve as proxy measures for ascertaining loss of economic opportunity arising from a long traditional marriage. Ross v. Ross (1995), 16 R.F.L (4 th ) 1 N.B.C.A.) at para. 7.

Entitlement

[95] All factors under ss.30 and 31 of the FLA must be carefully considered by the court in light of the objectives of spousal support listed in s.30. The objectives must be balanced in the context of the facts of the case. The court must exercise its discretion in order to relieve the adverse consequences and economic hardship that results from marriage or its breakdown. No single objective, including economic self-sufficiency, is paramount.

[96] As noted by the Supreme Court of Canada in Moge v. Moge, [1992] 3 S.C.R. 813 at para. 79:

The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage or [page 867] its termination which adversely affect the economic prospects of the disadvantaged spouse. ...

See also Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, Bracklow v. Bracklow, [1999] 1 S.C.R. 420 and Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303.

[97] The Supreme Court of Canada in Bracklow outlines three conceptual bases for entitlement to spousal support: compensatory, contractual and non-compensatory. In this case, there is no contractual basis for spousal support.

[98] In Bracklow, the Supreme of Court of Canada discussed the concepts of compensatory and non-compensatory spousal support as follows:

39 ...Under the Divorce Act, compensation arguments can be grounded in the need to consider the "condition" of the spouse; the "means, needs and other circumstances" of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and "the functions performed by each spouse during cohabitation", which may support the same argument. ...

40 ... To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

41 Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments -- are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. "[E]conomic hardship . . . arising from the breakdown of the marriage" is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6) (a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6) (c) as a separate consideration from s. 15.2(6) (a). Thus, Rogerson sees s.15.2 (6) (c), "the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage", as an explicit recognition of "non-compensatory" support ("Spousal Support After Moge", supra at pp. 371-72 (emphasis in original)).

42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act -- to promote economic self-sufficiency -- may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse's lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.

[99] A careful review of the condition, means, needs and other circumstances of each party in this case, along with the objectives of spousal support, results in a finding that Ms. Crew is entitled to spousal support on both a compensatory and a non-compensatory basis.

[100] The SSAG set out following examples of economic disadvantage:

1. Home with children full-time or part-time
2. Secondary earner
3. Primary caregiver of the children after separation
4. Moving for payor's career
5. Support for payor's education or training
6. Working in family business

[101] This court must consider all the factors as set out above in the FLA, ss. 30 and 31, in light of the objectives of the spousal support listed. The objectives must be balanced in the context of the facts of this case. The court's obligation must be to exercise its discretion in order to relieve any adverse consequences and economic difficulty in hardship that result from the breakdown of the relationship. No single objective, including economic self-sufficiency, is paramount.

[102] Mr. Lobo argues that this court should not give any weight to the two doctors' letters provided by Ms. Crew as evidence of any alleged occupational limitations that Ms. Crew might have.

[103] Mr. Lobo argues that the letter of Dr. Nemtean and the letter of Dr. Jonathan Beard do not meet the criteria of Rule 20.1 of the Family Law Rules as expert evidence.

[104] Mr. Lobo points out that Dr. Nemtean has not prepared a medical report that could be considered an expert report and specifically he is not an expert in the field of child psychology, and in particular, child autism, and therefore he is unqualified to provide evidence on the subject such as job modification and the extent of financial support needed for Jacob's care, and any limitation of Ms. Crew to work and become self-sufficient.

[105] Is argued that Dr. Nemtean's specialty, as a general family medical practitioner, does not qualify him to make statements regarding occupational limitations or adjustments to one's occupation to accommodate for caretaking obligations for Jacob. It is also noted that the doctor had not undertaken the acknowledgment of his duty as an expert and provide a form 20.1 as required by the Rules.

[106] Mr. Lobo argues that Dr. Beard also did not comply with any of the requirements of Rule 20.1 and that the report of Dr. Beard was not properly served and filed and does not comply with section 52 of the Evidence Act in that the consultation report filed is unsigned.

[107] I agree with Mr. Lobo's arguments in relation to the above-mentioned doctor's reports. I do not accept them as expert reports under the law or the Rules. I have not considered these reports in the context of an expert report as a litigation expert.

[108] I have, however, considered Dr. Nemtean's report and have given it weight as a "fact witness". That is somebody whose evidence is derived from their observation and/or involvement in the underlying facts of a particular case.

[109] I do not consider Dr. Nemtean as a litigation expert who has produced a report and an opinion for the purposes of this litigation. Rather, he has made observations and formed a relevant opinion based on his personal observations and work with Ms. Crew and Jacob which is related to the subject matter of this litigation, but not specifically for the purpose of providing an opinion.

[110] In other words, he has an understanding and insight in relation to Jacob and the level of care that Jacob requires. In addition, the doctor has insight about Ms. Crew's limitations and strengths in providing care to Jacob based on his work with Jacob and Ms. Crew. Refer to Court of Appeal in Westerhof v. Gee, 2015 ONCA 206.

[111] Also from Jewish Family and Child Services v. S.K., 2015 ONCJ 246, it is understood that witnesses who are not experts but who nevertheless have experience may present their observations and conclusions in the form of an opinion. For example, it is usual for social workers in child protection cases to give opinions, based on their education and clinical expertise, about a variety of issues including the quality of a parent and child interactions, emotional state of individuals, appropriate placement and adoption issues.

[112] It is within this legal framework that this court accepts Dr. Nemtean's letter on the challenges faced, at times, by Ms. Crew in caring for Jacob.

[113] Dr. Nemtean is a family doctor and as such is professionally trained and directed to consider Dr. Beard's consultation note, as this is what family doctors do on a daily basis in understanding the overall medical needs of the patient.

[114] Also, there is value in Dr. Beard's consultation report as it was produced some two years ago in 2014 and is a looking glass into the challenges of Ms. Crew in caring for Jacob.

[115] It should also be noted from this consultation report the suggestion to Ms. Crew to accept as much assistance from a local Children's Aid Society that may be able to provide programs and respite care.

[116] This court does not consider this a negative connotation that a family needs assistance from the Children's Aid Society. It is, however, a signal that a family does not have the immediate resources to accommodate all of its needs. Ms. Crew was critical of Mr. Lobo in his not being willing to provide extra finances for certain programs that she claims she wants to register Jacob in. Both parties recognize that their communication has not been the strongest over the years. Further, although touched on, there was no direct evidence filed as to what Ontario government assistance programs might be available to Jacob and no direct evidence from either party that applications were made or could be made in this regard to any Ontario government special-needs programs to address Jacob's needs.

[117] This court finds the following evidence from Ms. Crew's direct testimony and in cross-examination supportive of her claim for spousal support:

a) Prior to separation, Mr. Lobo and Ms. Crew were well aware that they had a child with autism and therefore a child that would require special needs and more attention than other children.

b) Prior to separation, Ms. Crew had stopped her former full-time employment and had taken on part-time employment, spending the majority of her time caring for Jacob.

c) Mr. Lobo was aware that prior to separation Ms. Crew's income was less than his and that this issue was a source of tension between them.

d) Since separation, Ms. Crew has taken on the daily tasks of caring for Jacob which requires constant attendance and a higher level of supervision than most children. Ms. Crew indicates that in part, her relationship with Mr. Lobo deteriorated because of Mr. Lobo downplaying the challenges that Jacob faces and minimizing Jacob's needs. Although this is denied in part by Mr. Lobo, he does in his affidavit of July 20, 2016 state in paragraph 51 that Jacob is "mildly autistic" and in paragraph 56 indicates that Jacob is doing very well at school and is "not severely autistic".

e) Since separation, Mr. Lobo does share every other weekend caring for Jacob from Friday to Sunday afternoon; however the majority of the other free time Mr. Lobo has is not spent with his son, such as extended periods over Christmas and the summer. Mr. Lobo admits that his work does not permit him to do this and therefore it falls on Ms. Crew to do the majority of caregiving with little to no respite care from Mr. Lobo.

f) Mr. Lobo agreed on cross-examination that he has not attended Jacob's school to discuss his developments, yet he claims in his affidavit that Jacob is doing very well at school, that Jacob has an assistant that works with him to monitor his behavior and that generally Jacob is well-adjusted. Mr. Lobo at no time presented any evidence regarding his discussion with the school, when Jacob has required intervention from the staff as well as Ms. Crew and how he needs supervision to follow through with routine daily tasks.

g) Ms. Crew testified that over the years she has been up at night when Jacob had had episodes and that at times, both at home and in the community. Jacob has had difficulties which caused people in the public to judge him as well as the care that Ms. Crew is providing, making it extremely exhausting both physically and mentally for her. The doctors' letters, specifically Exhibit "A" to Ms. Crew's affidavit, clearly indicate that in 2014 Ms. Crew has discussed this issue with the professionals working with her son and how his care at times demands her full attention and exhausts her resources emotionally and physically. The consultation note of Dr. Beard speaks of the need for Ms. Crew to take advantage of any assistance that the local Children's Aid Society can offer, clearly showing the acute need that Ms. Crew has required from time to time, as it is not all families that require assistance from a state agency such as a children's aid society.

[118] Presently Ms. Crew's income is $16,322.00. Mr. Lobo's income is $93,724.00.

[119] Mr. Lobo has been able to pursue his career and he admits that at times his current job is demanding to the extent that he is unavailable to care for Jacob other than every other weekend on a regular basis that he parents his son.

[120] A review of the above conditions, means and needs and the special demands in caring for Jacob as well as the objectives of spousal support as set out in the FLA directs this court to conclude that Ms. Crew is entitled to spousal support on a non-compensatory needs basis.

[121] Effectively, the care for Jacob before the relationship breakdown and since has at times overwhelmed Ms. Crew, making it difficult for her to hold down full-time and more demanding employment.

[122] Her employment has been effectively half-time caring for Jacob and the other half working in her current employment to support herself and Jacob.

Self-Sufficiency

[123] This court is not oblivious to the objective of economic self-sufficiency as set out in the legislation as it applies to Ms. Crew and her current earning potential.

[124] The court is aware that self-sufficiency must be considered in the context of the standard of living previously enjoyed by the parties and their lifestyle prior to separation as stated in the Court of Appeal in Fisher at paragraph 53:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation and that they can reasonably anticipate after separation.

See Linton v. Linton (1990), 10. R. (3D) 1 (C. A.) at p. 27–28.

[125] Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, the standard of living during marriage, the efficacy of any suggested steps to increase the parties' means, the parties likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

Mr. Lobo's Post-Separation Income, Quantum and Duration of Spousal Support

[126] Mr. Lobo argues that any spousal support order is effectively a sharing of his post-separation increase in income and is akin to treating his job as a family asset, "shareable in specie". He indicates that his current income and any new employment are sufficiently disconnected from any efforts during the marriage. He notes that rather than doing so as a matter of course, it is appropriate to investigate whether there is a sufficient relationship between his increased income and Ms. Crew's role during the marriage justifying allowing her to share in the increase. See paragraph 69 of the affidavit of Mr. Lobo dated July 28, 2016.

[127] While this court recognizes in law the argument set out above, it is this court's finding that Ms. Crew has taken on the role during the relationship and after that is directly connected to the relationship and that is the full-time care of the parties' son.

[128] This court might take a different view of the fact that Ms. Crew has made this spousal support request four years after the separation if the facts as established were that the parties shared equally in the responsibility of caring for Jacob, given his special needs. The facts do not support this. Ms. Crew has done this. Mr. Lobo, although a loving father, has not spent the much needed daily time in this regard. He admits he has demanding employment and can devote every other weekend to his son which he has done, but not much more.

[129] Ms. Crew, when questioned by the court, has indicated that the next three years are crucial for her son in that he is entering his teen years, and in a new phase of his schooling. This next period of time will lay the foundation for much of what will assist Jacob as a young adult, in terms of learning to care for himself, both in the community and at home. This in addition to other factors noted above forms the basis on which this court orders that Ms. Crew is entitled to spousal support for a period of three years.

[130] The court has considered the Support Mate calculation provided by Ms. Crew at tab 62, Volume 5. It indicates that given the eight year relationship there would be a range of spousal support suggested between $912.00 and $1,473.00 per month for an indefinite non specified duration, subject to a variation/possible review between a minimum of four to fourteen years.

[131] Considering the evidence above, including the next period of time for Jacob, the delay in Ms. Crew in bringing this spousal support application, her role in caring for Jacob post-separation, her ability in the past to work and level of education and age, the impact of this order on Mr. Lobo, and considering the other aspects of his support obligation to Jacob in monthly support and section 7 costs, the order for spousal support shall be for a defined period of time of three years, commencing November 1, 2016 and ending November 1, 2019 payable by Mr. Lobo to Ms. Crew in the amount of $750.00 per month. A support deduction order shall issue.

Order

Child Support Arrears

[132] Mr. Lobo's arrears in child support owed are set at $14,963.00, to be paid either in full within 30 days of this order or at the amount of $500.00 per month commencing November 1, 2016 payable to Ms. Crew through the Family Responsibility Office. A support deduction order shall issue.

Section 7 Expense

[133] Before any section 7 costs are incurred the parents will discuss and agree before incurring the cost.

[134] Ms. Crew will provide to Mr. Lobo a receipt for the section 7 costs which he will pay within 15 days of receiving the receipt to the Family Responsibility Office.

[135] In 2016/17 Jacob may participate in speech therapy. Such a program shall be located by Ms. Crew in consultation with Mr. Lobo.

[136] Jacob's pre and after-school care shall be considered an ongoing section 7 expense.

[137] The parties will share proportionate to their incomes all section 7 costs set out in this order, and future section costs as agreed to, using a support calculation software program to determine each of their net percentage contribution.

Spousal Support

[138] Mr. Lobo shall pay spousal support to Ms. Crew the amount of $750.00 on the first of each month commencing November 1, 2016 ending November 1, 2019. A support deduction order will issue.

Released: October 25, 2016

Justice A.W.J. Sullivan