Court File and Parties
Date: June 19, 2017
Court File No.: D90288/16
Ontario Court of Justice
Between:
Salim Matti Acting in Person Applicant
- and -
Zina Odish Respondent
Amal Nayyar, for the Respondent
Paulina Sbrocchi, Agent, for the Assignee, City of Toronto
Heard: June 14 and 15, 2017
Justice S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the applicant's (the father's) child support obligations for the parties' two children (the children) and about spousal support.
[2] The respondent (the mother) asks the court to impute the father's annual income at $65,000 for support purposes. She asks that the father pay her the Child Support Guidelines (the guidelines) table amount of child support, being $966 each month, and pay his proportionate share of the children's special and extraordinary expenses, pursuant to section 7 of the guidelines (section 7 expenses). The mother also seeks an order for spousal support in the amount of $824 each month.
[3] The mother asks that the orders for the guidelines table amount of child support and spousal support be made retroactive to January 1, 2016. She is content that the father start paying towards the children's section 7 expenses starting on July 1, 2017.
[4] The mother is presently on social assistance (Ontario Works). She assigned her interest in support to the City of Toronto (the assignee), effective November 1, 2016. Ontario Regulation 228/16, s. 8 amends subsection 54 (1) of Ontario Regulation 134/98, made pursuant to the Ontario Works Act, 1997. This amendment provides that starting on February 1, 2017, any child support payments the mother receives are not deducted from her social assistance payments. This amendment does not change the treatment of spousal support. The City of Toronto, by virtue of the assignment in interest, will collect any spousal support awarded, as long as the mother remains on Ontario Works.
[5] The assignee supports the requests made by the mother.
[6] The father asks that his child support payments be based on an annual income of $40,000. The monthly guidelines table amount at this income is $579. He is prepared to pay his proportionate share of the children's section 7 expenses. The father asks that the mother's claim for spousal support be dismissed. He also asks that support only be ordered on an ongoing basis. Lastly, the father asks the court to impute the mother's annual income at $15,000, for the purpose of the support calculations.
[7] Only the parties testified. Their oral evidence was in addition to their affidavits and financial statements filed. The parties are commended for preparing a detailed Statement of Agreed Facts about non-contentious facts.
[8] The issues for this court to determine are:
a) What are the incomes of the parties for the purpose of the support calculation, and in particular, should income be imputed to one or both of them?
b) Is the mother entitled to spousal support?
c) If so, what should be the amount and the duration of the spousal support ordered?
d) When should the support orders start?
e) How should support arrears, if any, be paid?
Part Two – Background Facts
[9] The mother is 38 years old. The father is 43 years old.
[10] The parties were both born in Iraq.
[11] The parties were married on April 30, 2005 in Turkey.
[12] The parties came to Canada on March 9, 2006.
[13] The parties had the two children together. They are now 7 and 8 years old.
[14] The father was the primary wage earner for the family and supported them. The mother looked after the home and the children.
[15] The mother worked part-time as a server in a banquet hall until 2008. She has not worked since then.
[16] The father operates a company doing hardwood floor installation and finishing. He is the sole shareholder, director and employee of the company.
[17] The parties separated on November 5, 2015.
[18] The children have remained with the mother since the separation. The father visits with them on Sunday afternoons.
[19] The mother's mother (the maternal grandmother) lives with her and the children. She is 65 years old and in receipt of disability benefits of $1,000 each month.
[20] The father lives on his own.
[21] The father issued this application on February 22, 2016 seeking access to the children.
[22] The mother filed an Answer/Claim on March 30, 2016 claiming custody and child and spousal support.
[23] On October 19, 2016, on consent, Justice Carole Curtis granted final custody of the children to the mother and made a temporary access order. She ordered the father, on a temporary without prejudice basis, to pay child support to the mother in the amount of $508 each month, starting on November 1, 2016. This was based on the father's self-declared 2015 income of $35,000. She also made an order that the father provide the mother with detailed financial disclosure.
[24] The father did not pay any support prior to the temporary order being made. According to the records of the assignee, he was $1,016 in arrears of the temporary order as of the date of trial.
[25] On April 4, 2017, the parties agreed to make Justice Curtis' temporary access order final.
[26] The parties agreed at the outset of the trial to additional incidents of custody and minor changes to the April 4, 2017 access order. These changes will be included in this order.
Part Three – Incomes of the Parties
3.1 Legal Considerations
[27] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
[28] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).
[29] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
[30] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
If not, what income is appropriately imputed?
[31] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[32] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[33] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[34] The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).
[35] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654 (OCJ), paragraphs 140 and 141.
[36] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[37] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O'Connor, [2006] O.J. No. 1660 (Ont. Fam. Ct.). This principle also applies where the person's employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184.
[38] Self-employed persons have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 31 R.F.L. (5th) 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo.
[39] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616 (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140 (Ont. S.C.).
3.2 The Mother's Income
[40] The father seeks to impute the mother's annual income at $15,000. He claims that she is deliberately unemployed and is capable of working part-time.
[41] The father did not meet his onus to impute income to the mother for the following reasons:
a) The mother has been out of the workforce since 2008.
b) The parties agreed that the mother would stay at home with the children and manage the household while the father supported the family. The father accepted that the mother would not work when they were together.
c) In 2010, the mother suffered a back injury in an accident. The father acknowledged the mother's back problems, but still felt she could work. The court accepted the mother's evidence that her back injury is significant. She presented as a credible witness. The mother said that she is in constant pain and can't stand or sit for long. Her pain gets worse if she has to perform any physical work. She wears a lumbar belt to ease the pain and provided proof of the medications she is taking that help her manage it. The mother provided some corroborative medical evidence from her family doctor. The doctor wrote that the mother has multilevel degenerative disc disease at the lumbar spine with radiation to both lower limbs.
d) The mother has limited job skills. She worked for short periods of time in a factory and as a server at a banquet hall prior to 2009. These were minimum wage jobs. These jobs also required physical labour that would be very difficult for her to perform now. The mother has limited ability in English and only a high school education from Iraq. It would be very difficult for her to obtain clerical work in Canada.
e) The mother's child-care responsibilities also impair her ability to work. The father only takes the children for 4 hours each week and often returns them home early. The father acknowledged that the mother has asked him to take the children for longer and he has refused. He explained that the children want things from him and he can't afford it. It would be very difficult, even without her injuries, for the mother to work on weekends, as suggested by the father. The maternal grandmother has her own physical disabilities and would not be able to manage the children. The cost of any child care would likely offset the minimum wage income the mother could earn working part-time.
[42] The mother receives $13,785.48 annually from Ontario Works. The sum of $8,160 is attributable to her and the balance is allocated by Ontario Works for her children. This information is relevant to the calculation of section 7 expenses. It is not relevant to the calculation of spousal support as public assistance monies aren't included in income for the purpose of the Spousal Support Advisory Guidelines (SSAG).
3.3 The Father's Income
3.3.1 Evidence and Position of the Parties
[43] This was the most contentious issue in the case.
[44] The mother seeks to impute the father's annual income at $65,000. She alleges that the father's business earns additional undeclared cash income, is deducting expenses actually paid for by third parties and is deducting the father's personal expenses. The father denied this.
[45] The mother deposed that while they lived together, the father operated much of his business in cash. She said that he paid all of the family's expenses, which were about $3,600 each month. It would take net income of $47,000 a year to maintain this lifestyle. The father denied ever earning this level of income.
[46] The mother stated that in the summer of 2015, the father came home one day with cash of $80,000. She said that she took half the money, but after they argued, she returned it to him. She does not know what has happened to this money. The father said that the mother is making this up.
[47] The mother also alleged that the father had a second job working as a bartender at a banquet hall and that he was not declaring this cash income. The father admitted that he had this second job while he lived with the mother. He said that he would work on one or both days on weekends. He said that he could make up to $150 a day in cash tips. The father said that he quit this job when he separated from the mother as he no longer wanted to work 7 days a week.
[48] The father deposed that he has worked as a hardwood installer and finisher for several years. While he lived with the mother, he ran an unincorporated business as a subcontractor.
[49] The father incorporated his business at the start of 2016. He testified that he now deals directly with his customers. He said that almost all of his work is done for government customers.
[50] The father has structured his business so that the corporation pays him a salary. In 2016, the corporation paid him $21,462.
[51] The corporation hired one other employee in 2016 and paid him about $18,000. The father testified that this employee was laid off in December, 2016.
[52] In his financial statement sworn on June 7, 2017, the father deposed that his annual salary from the corporation is now $30,720. The other employee has not been rehired.
[53] A review of the father's income tax returns shows that the gross profit from his business is steadily increasing each year, from $52,390 in 2013 to $73,323 in 2016.
3.3.2 Difficulties with the Father's Evidence
[54] The evidence revealed that the father's claim that his business rarely operates in cash was false. He initially denied being paid in cash at all. When the mother produced evidence of cash deposits into his personal account, the father acknowledged that on rare occasions he would be paid in cash by private customers. He claimed that he had no more than 2 to 3 private customers a year. The mother also produced many of the corporation's expenses that were paid for in cash. The father acknowledged that he would sometimes pay the corporation's bills in cash if there were insufficient funds in its bank account to pay them.
[55] The mother then presented the father with a number of supplier invoices that were paid for by credit card. None of these credit cards matched the father's credit card. The father explained that on occasion his private clients would directly pay for the supplies. The mother's counsel then pointed out that these invoices were paid through 11 different credit cards. The father could not explain this – the logical inference being that the father had far more than 2 or 3 private clients paying directly for supplies.
[56] The father acknowledged that his corporation deducted some costs paid for by his private customers. He said that he has now instructed his accountant to fix this and only deduct expenses paid by the corporation. These payments made by third parties came to over $2,000.
[57] The father's revenue statements do not reveal income received from most of these private clients.
[58] On cross-examination it was established that some cash payments from private clients were being deposited into the father's personal account. The court finds that the father was not reporting cash income received from several of his private clients.
[59] In addition to the supplier invoices where the form of payment (whether by cheque or credit card) and the payor could be identified, there were many supplier invoices where the form of payment and the payor could not be identified, leading to an inference that either the father or his customers paid for these supplies in cash. This category of costs amounted to over $7,300. The father had been asked in pre-trial questioning to provide proof that these invoices were actually paid by his business. He never did this. The mother submits that the entire amount of these invoices should be added back to the father's income.
[60] The father produced his corporation's statement of profit and loss for 2016 (P & L statement). The corporation deducted $3,750 for subcontractor expenses. The father could not identify in his financial disclosure any payments made in 2016 to subcontractors, despite having been requested by the mother to produce this prior to trial.
[61] The father was ordered to produce copies of all his personal and bank account entries. He represented at the start of his testimony that he only had one business account and one personal account. This became a moving target at trial. It became apparent the father had a second personal account. He was asked to bring complete statements for the second day of trial – partial statements were provided. He then testified that he had another U.S. money account, but he did not produce any statements from that account. He then added in cross examination that he might have another personal savings account. No statements were provided.
[62] The father did not produce the financial disclosure within the timelines ordered by the court. Instead, he did a massive document dump of all his business invoices and expenses (a massive amount of disorganized and unnumbered pages) just prior to trial. He also did not produce his personal bank account records from January to May of 2016.
[63] The father failed to provide a complete or comprehensible record of his personal and business affairs.
[64] An adverse inference is drawn against the father due to his failure to make timely, complete and comprehensible financial disclosure.
[65] It became apparent in an effective cross-examination by the mother's counsel that the father was mixing monies between his personal and business accounts and writing off personal expenses through his business.
[66] The P & L statement indicates that the corporation had vehicle expenses of $5,386 in 2016. The father acknowledged that this vehicle was used for both personal and business purposes.
[67] The P & L statement shows insurance expenses of $2,520 in 2016. The father was only able to identify about $1,900 of these expenses that were related to the business.
[68] The P & L statement claims meal and entertainment expenses of about $3,000 in 2016. The father acknowledged this was primarily used to pay for his lunches. A review of his invoices indicates invoices claimed for clothes, groceries and several LCBO purchases.
[69] The P & L statement claims about $570 in 2016 for internet and phone expenses. These were used for both personal and business purposes, but fully deducted through the business.
[70] The father's evidence about his assets was also a constantly moving target. In his financial statement sworn on June 7, 2017, he deposed that he had $50 in his only declared personal bank account. At trial, he revealed that he also had $1,000 in an undisclosed U.S. bank account. Later in his cross-examination, the father was again asked how much money he had in his bank accounts. He indicated that he had $1,000 in his personal bank account. He then said he had another $5,000, for a total of $6,000.
[71] The father claimed that his business is slowing down in 2017. He provided no evidence of this. His corporation is paying him an increased income in 2017.
[72] The father states that he no longer wants to work as hard and does not expect to earn as much income in the future. He said that he wants to protect himself from a back injury and wants to have time to remarry. These statements, as well as his failure to pay any support in 2016 until November, reveal that supporting his family is a low priority for him.
[73] The father provided no evidence, such as a medical report, to support his statement that he has to reduce his work load due to health reasons.
[74] The father was not a credible witness. His evidence kept changing when he was faced with evidence contradicting him. He was evasive and at times unnecessarily argumentative. He claimed not to work for cash, but the evidence showed that he has a history of working for cash and continues to do so.
[75] The court finds that the father's corporation earns additional unreported income, has improperly deducted expenses it did not pay and has improperly deducted many of the father's personal expenses from its income.
3.3.3 Imputation of Income to the Father
[76] This leads to the issue of how much income to impute to the father.
[77] The mother submits that she could justify imputing an annual income to the father of $75,000, but is willing to have it assessed at $65,000.
[78] The corporation's P & L statement for 2016 shows gross income of $107,335, gross profit of $73,323.23 (after deducting cost of goods sold) and expenses of $59,441.80, leaving a net income for the corporation of $13,881.43.
[79] The court will make the following adjustments to this statement:
a) $8,800 will be added back as undeclared cash income. This is based on 11 clients at $800 per customer. This might be a conservative estimate of undeclared cash income earned by the corporation.
b) The amount of $2,000 will be added back as costs of goods sold improperly deducted, as these supplies were actually paid by credit card by the father's private customers.
c) The amount of $3,500 will be added back from costs of goods sold that were deducted from gross income. This amount is under 50% of the total costs in the invoices identified by the mother, where the form of payment and the payor was not identified. The father could not prove that these costs of goods sold were paid by the corporation.
d) The amount of $1,500 will be added back from subcontractor payments deducted from gross income, as the father could not identify the payments made. This is about 50% of the total amount deducted by the corporation for this category.
e) The amount of $600 will be added back from the insurance expenses deducted, as the father could only identify $1,900 of these expenses that were attributable to the business.
f) The amount of $1,325 will be added back from the vehicle expenses deducted, as the father would have used the vehicle about 25% of the time for his personal use.
g) The amount of $2,000 will be added back from the meals and entertainment expenses deducted, as the evidence established that many of these expenses were for personal use.
h) The amount of $200 will be added back from the telephone and internet expenses deducted, representing the father's approximated personal use.
[80] These adjustments add $19,925 to the corporation's net income in 2016. The adjusted amount of net income for the corporation is now $33,806.43 for 2016. The court finds that it is reasonable for the corporation to retain earnings of $5,000 to meet future obligations. The balance of $28,506.43 should be attributed to the father's income. When the father's salary of $21,461.61 is added to this amount, his 2016 income comes to $49,968.04. The court notes that this income is comparable with the income the mother stated the father earned ($47,000) when they lived together.
[81] However, the analysis of the father's income does not end there. It is appropriate in these circumstances to gross-up the father's income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (SCJ).
[82] A software analysis shows that the gross-up of the father's income brings his 2016 income to $59,677.
[83] The corporation started paying the father a higher salary in 2017 ($30,720). The income gross-up will be less than in 2016, since the father is declaring more income. The software analysis shows that the gross-up of the father's income brings his 2017 income to $56,649.
[84] The mother submitted that the father could also still be earning income as a bartender at the banquet hall on weekends. He was mostly paid in cash at this job. The father quit this job upon separation. If this was the father's only job, the court would have no difficulty imputing this income to the father. However, the father is already working full-time at his business and earning a good income. It is not reasonable to expect him to take on a second job and work 7 days each week. See: Poulin v. Poulin, 2002 BCSC 1374; Houghton v. Houghton, 2000 MBQB 86; Aboagye v. Sakyi, 2012 ONCJ 56.
[85] No additional income will be imputed to the father for his having left his second job.
Part Four – Spousal Support
4.1 – Entitlement
4.1.1 Legal Considerations
[86] Section 30 of the Family Law Act 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.
[87] Subsection 33 (8) of the Family Law Act sets out the purposes of spousal support and subsection 33 (9) sets out the considerations for the determination of the amount, if any, and duration of spousal support. The court has considered these subsections in making its decision.
[88] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.
[89] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the SSAG, entitlement to support must first be established.
[90] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement. See: Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.
4.1.2 Analysis
[91] The mother established an entitlement to support on both a compensatory and non-compensatory basis.
[92] The mother's compensatory claim for spousal support is based on the roles she assumed during the marriage. The parties agreed that the mother would stay at home after the birth of the second child, raise the children and manage the household. This delayed the mother from upgrading her education or possibly advancing at work. The mother continues to be the primary caregiver (almost exclusively) for the children. This role will compromise her ability to earn income in the future. She will be the parent who needs to be available to meet with teachers, take the children to medical appointments and arrange their activities. It will likely affect the jobs she can take and the hours she can work.
[93] The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. There is a large disparity in the incomes of the parties. The father acknowledged that the mother was completely dependent upon him during the relationship. The mother is now on Ontario Works. She has no present ability to support herself. She is partially disabled due to her back issues. Her standard of living has been significantly reduced because of the breakdown of the relationship. At times, she has defaulted in her rent payments. She relies on family to supplement her social assistance income. She will continue to suffer an economic disadvantage from the breakdown of the marriage.
4.2 Duration and Amount
4.2.1 Legal Considerations
[94] The Court of Appeal in Fisher, supra, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:
[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.
[95] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.
[96] In Mason v. Mason, supra, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:
[122] Further, in The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs "is the problem of unsophisticated use." The authors continue by stating:
For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.
[97] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.
[98] In general, awards in highly compensatory cases tend to be at the longer end of the durational range and those in many non-compensatory cases (e.g. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.
[99] In Wharry, supra, the court did not set a termination date for support when the SSAG set a durational range between 7 and 14 years. The court found that it was not possible to assess on the record when the appellant would have had a reasonable opportunity to recover from the economic disadvantage resulting from the role she played during marriage, and resulting from the breakdown of the marriage. The court stated that it would have to deal with the termination date by a variation application at some future point which would take into account the duration of support suggested by the SSAG, and the amount of support paid (see: paragraph 103). This court followed that reasoning in Barrera v. Barrera, 2016 ONCJ 744 and Watson v. Watson, 2017 ONCJ 24.
[100] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.
4.2.2 Analysis
[101] The software analysis, based on the father's 2016 imputed income of $59,677, shows that the SSAG low range of support is $523 per month. The mid-range of support is $663 per month and the high range of support is $797 per month.
[102] The software analysis, based on the father's 2017 imputed income of $56,649, shows that the SSAG low range of support is $439 per month. The mid-range of support is $585 per month and the high range of support is $734 per month.
[103] The range of support in both scenarios is for an indefinite (unspecified) duration, subject to variation and a possible review, with a minimum duration of five years and a maximum duration of eleven years from the date of the separation.
[104] The mother has a strong compensatory claim for support due to her childcare obligations and the failure of the father to assist in any meaningful way with raising the children. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. It is also an important factor in not time-limiting support on an original application for spousal support. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.
[105] The court will order spousal support of $650 each month and will not time limit the order for the following reasons:
a) The mother has a strong claim for compensatory support.
b) Much of the mother's economic disadvantage lies ahead of her. She will continue to be disadvantaged in the labour market due to her ongoing child care obligations.
c) The mother is partially (at a minimum) disabled from working. This disability existed when the parties were living together.
d) The mother is almost exclusively responsible for child care. The father has refused the mother's requests to assist her more with these responsibilities.
e) There is a significant disparity in the parties' incomes.
f) The father has been living a better lifestyle than the mother and the children due to his failure to pay adequate support.
[106] The software analysis reveals that the father will still enjoy a higher standard of living than the mother after paying the child and spousal support that will be ordered.
[107] The court recognizes that any spousal support award will belong to the assignee as long as the mother is on Ontario Works. This has no impact on the court's decision. The taxpayer should not be assuming any portion of the father's legal responsibility to the mother.
Part Five – Start Date for Support
5.1 Legal Considerations
[108] The mother is seeking a short retroactive support order to January 1, 2016. The court has considered the following legal principles in determining whether to make the retroactive order sought by her.
[109] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
[110] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[111] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[112] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 decided that D.B.S. factors apply, as modified, for spousal support purposes. The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.
5.2 Analysis
[113] The request by the mother and assignee to make support retroactive to January 1, 2016 is very fair. It is a modest retroactive request, as the mother filed her claim in the court on March 30, 2016 and support from that day forward is prospective, not retroactive. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).
[114] The mother did not delay in bringing her application. The father acknowledged that she asked for support about one month after they separated.
[115] The father failed to pay any support to the mother from January 1, 2016, until after the temporary court order was made on October 19, 2016. This was blameworthy conduct.
[116] The circumstances of the children were disadvantaged by the lack of support as the mother had to resort to Ontario Works. Their housing was sometimes in jeopardy, as the mother struggled to pay rent.
[117] A small retroactive order will not cause the father hardship that cannot be addressed by a reasonable payment order.
[118] The orders for child and spousal support shall begin on January 1, 2016.
Part Six – Support Calculation and Payment of Arrears
[119] The guidelines table amount for two children at an annual income of $59,677 is $887 each month. At an annual income of $56,649, it is $842 each month.
[120] The child support accumulated since January 1, 2016 is $15,696 ($887 x 12 months = $10,644 plus $842 x 6 months = $5,052).
[121] The spousal support accumulated since January 1, 2016 is $11,700 ($650 x 18 months).
[122] The total support accumulated since January 1, 2016 is $27,396.
[123] The father will be credited with all support payments made since January 1, 2016, as reflected in the records of the Family Responsibility Office.
[124] The mother is also asking that the father contribute his proportionate share of the children's section 7 expenses on an ongoing basis. This is a reasonable request. At this point, this is also a modest request. The children presently don't have section 7 expenses, although the mother may send the children to camp in the summer, as she did last year. Last year, there was a small cost of $240. The father agreed that camp is a reasonable and necessary expense for the children. If one or both children go to camp, the father shall pay 75% of these expenses within 14 days of the mother presenting him with the receipt.
[125] This order will create immediate support arrears for the father. The court will provide him with a reasonable time to pay them, but only for so long as his support payments are in good standing.
[126] The court has taken into consideration in structuring this payment that it is more probable than not, as alleged by the mother, that the father has cash reserves that he is not reporting as an asset.
[127] The father may pay the arrears at $400 each month starting on September 1, 2017. However, if he is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears then owing shall immediately become due and payable.
Part Seven – Conclusion
[128] A final order shall go on the following terms:
a) The father shall pay child support to the mother in the sum of $887 each month, starting on January 1, 2016. This is the guidelines table amount for 2 children, based on an imputed annual income to the father of $59,677.
b) Starting on January 1, 2017, the father shall pay child support to the mother in the sum of $842 each month. This is the guidelines table amount for 2 children, based on an imputed annual income to the father of $56,649.
c) The father shall pay spousal support to the mother in the sum of $650 each month, starting on January 1, 2016.
d) The father shall be credited with all support payments made since January 1, 2016, as reflected in the records of the Family Responsibility Office.
e) The father shall pay 75% of the children's section 7 expenses within 14 days of the mother presenting him with receipts. This will include any child's summer camp expenses.
f) The child and spousal support arrears accumulated until January 31, 2017 are owed to the assignee.
g) Any child support arrears accumulated since February 1, 2017 are owed to the mother.
h) Any spousal support arrears accumulated since February 1, 2017 are owed to the assignee.
i) The father may pay the arrears created by this order at the rate of $400 each month, starting on September 1, 2017. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.
j) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.
k) The Director of the Family Responsibility Office is asked to amend its records in accordance with this order.
l) A support deduction order shall issue.
m) The father shall provide the mother by June 30th each year, starting in 2018, with complete copies of both his personal and corporate income tax returns and notices of assessment.
n) On consent, the court's parenting order of April 4, 2017, shall be changed to include the following terms:
i. The father shall have access to the children at such other times as the parties may agree to.
ii. The access exchanges shall take place at the mother's home.
iii. Transportation arrangements for access are to be the responsibility of the father.
iv. The mother may obtain travel documents, including passports, for the children without the father's consent.
v. The mother may travel outside of Canada with the children for a period of less than 30 days without the consent of the father, provided that she has given written notice of the travel, along with travel itinerary and contact information for the children to the father in advance. For any travel plans in excess of 30 days, the father's written consent shall be required.
[129] If either party or the assignee finds a mathematical error in this decision, or an inputting error in the software calculations attached to it, they may serve and file written submissions by July 4, 2017. The other party will then have until July 14, 2017 to serve and file a written response. Any submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
[130] If either party or the assignee seeks their costs, they shall serve and file their written costs submissions by July 21, 2017. The other party will have until August 2, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.
[131] The court commends counsel for the mother on her excellent presentation of this case.
Released: June 19, 2017
Justice S.B. Sherr