CITATION: Gordon v. Wilkins, 2020 ONCJ 115

DATE: February 28, 2020

COURT FILE NO. D30066/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

MARY GORDON

BRAD BERNS, for the APPLICANT

APPLICANT

• and -

PAUL WILKINS

ACTING IN PERSON

RESPONDENT

HEARD: FEBRUARY 24, 2020

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] This motion was about the applicant’s (the mother’s) claim for child and spousal support against the respondent (the father).[^1]

[2] The mother asks that the father’s annual income be imputed at $150,000 for the purpose of the support analysis. She seeks temporary spousal support from him in the amount of $1,993 each month and temporary child support for the parties’ two children, ages 9 and 7, in the amount of $2,190 each month, inclusive of special expenses pursuant to section 7 of the Child Support Guidelines (the guidelines). She asks that the support order be effective as of October 1, 2019.

[3] The father has worked as a personal injury lawyer. He says that he has earned no income since his licence was revoked by the Law Society of Ontario for professional misconduct in August 2019 and that he cannot afford to pay any support at this time.

[4] The issues to be determined on the mother’s motion are:

a) What income, if any, should be imputed to the father for the purpose of the support analysis, and in particular, for the time period after his licence was revoked due to his professional misconduct?

b) How much temporary child support should the father pay to the mother?

c) Is the mother entitled to spousal support?

d) If so, how much spousal support should the father pay to her on a temporary basis?

e) When should the temporary support order begin?

Part Two – Background facts

[5] The mother is 42 years old. The father is 41 years old.

[6] The parties cohabited from January 2011 until September 2016. They never married.

[7] The parties had the two children together.

[8] The children have always lived with the mother. The father has had limited contact with the children since August 2018. The parties agreed on February 24, 2020 that the father would have temporary supervised access with them.

[9] The father advised the court that he will have a child with his girlfriend in May 2020. He said that he presently lives with and is supported by friends.

[10] The mother is employed as a customer service manager. She earns annual income of $40,950.

[11] The mother issued her application on January 24, 2019.

[12] On April 2, 2019 a hearing panel of the Law Society of Ontario found that the father had engaged in professional misconduct and/or conduct unbecoming a licensee. It concluded that the Law Society had established that the father misappropriated $76,742.90, more or less, of funds to be held in trust, contrary to Rule 3.6-10 of the Rules of Professional Conduct. It also held that the father had failed to maintain the proper books and records of his law practice.

[13] The events giving rise to the disciplinary proceeding took place between January and March 2016, while the father was practising as a sole practitioner in personal injury law. According to an agreed statement of facts filed at the hearing, during that period the father removed $76,742.90 from trust in 19 transactions which he noted as “bank errors.” The money was transferred to his firm’s general account, which was then in overdraft, to pay business expenses. In addition, between November 2015 and June 2016, when the father hired a new bookkeeper, he did not maintain monthly trust reconciliations and comparisons.[^2]

[14] On August 19, 2019, the father’s licence was revoked. He was also ordered to pay the Law Society of Ontario its costs in excess of $42,000. See: Law Society of Ontario v. Wilkins, 2019 ONLSTH 109.

[15] The father’s motion to stay the revocation of his licence was dismissed. See: Law Society of Ontario v. Wilkins, 2019 ONLSTA 23.

[16] The father has appealed the decision to revoke his licence. No date has been set for the appeal.

[17] The father paid the mother support of $930 each week from the date of separation until September 10, 2018. He then stopped making support payments. From January to May of 2019, he paid the mother $750 each month. Since that time, he has not made any support payment to her.

[18] The father paid the mortgage on the family home until he sold it in September 2019. The mother and children were living in the home until it was sold. The mother paid for the utilities.

[19] The mother’s motion was first returnable on September 20, 2019. The father, who was represented by counsel at the time, did not file any responding material. He sought an adjournment that was opposed by the mother. The court granted the adjournment on terms, including:

a) The mother would have temporary custody of the children.

b) Pending the return of the motion, the father was to pay the mother $8,000 for the support of her and the children; the sum of $4,000 to be paid on or before September 25, 2019 and the sum of $4,000 on or before November 1, 2019. The court indicated it would allocate these sums between child and spousal support on the return of the motion.

c) The father was given an extension until September 30, 2019 to file his Answer/Claim, Form 35.1 affidavit and financial statement.

d) The father was given until November 12, 2019 to file his responding material to the mother’s motion.

e) Costs were reserved to the return of the motion.

[20] The father did not comply with the filing deadlines. He also did not pay the mother anything towards the support order.

[21] The motion returned to court on December 4, 2019. The father no longer had counsel. He had served but had not filed an Answer/Claim and Form 35.1 affidavit. He had not served or filed his financial statement. He sought another adjournment. This was granted, with the return date peremptory on him. He was given until December 20, 2019 to serve and file his financial statement. Costs of the appearance were reserved to the return of the motion.

[22] The father did not file his financial statement or his responding affidavit prior to the motion. He was permitted to file his materials at the hearing of the motion.

Part Three – Income of the father

3.1 Legal considerations – imputing income

3.1.1 General principles of imputing income

[23] 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 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

[24] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the party’s reasonable education or health needs?

3. If not, what income is appropriately imputed?

[25] 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.

[26] 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.

[27] 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.

[28] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. See: Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23.

[29] 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 enjoyed 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, 2006 26573 (ONCA).

[30] Income can also be imputed for the determination of spousal support. See: Rilli v. Rilli, 2006 34451 (Ont. SCJ). It can also be imputed on a motion. See: Kowalik v. Kowalik, 2011 ONSC 1551.

3.1.2 Disclosure responsibilities of a self-employed person

[31] 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 13554 (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; Njoki v. Gitomeh, 2016 ONSC 5012.

[32] The self-employed 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) 2002 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ).

[33] 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 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.).

3.1.3 Imputing income to persons who are earning less than they should be earning due to their own reckless behaviour or misconduct

[34] In this case, the mother is not submitting that the father is presently earning annual income of $150,000. She is asking the court to impute income in this amount to him on the basis that this is income that he could and should be earning.

[35] Justice Alex Pazaratz reviewed the legal considerations for imputing income to a person who, due to their own misconduct, is not earning what they are capable of earning in Rogers v. Rogers, 2013 ONSC 1997. Excerpts from this decision are as follows:

39. Section 19 of the Child Support Guidelines allows the court to impute such income to a spouse as it considers appropriate in the circumstances, which circumstances include:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

40. The list of categories set out in section 19 is not exhaustive. The court has the discretion to impute income in circumstances that are not only analogous but also those in which imputation would be consistent with legislative intent. Bak v. Dobell (2007) 2007 ONCA 304, 86 O.R. (3d) 196 (C.A.)

41. The wording of section 19 of the Guidelines is open-ended (“which circumstances include”), indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can and should be imputed. Riel v. Holland (2003) 2003 3433 (ON CA), 67 O.R. (3d) 417 (C.A.).

42. Many cases have held that where a payor quits his or her employment, their previous level of income will continue to be imputed to them, irrespective of whether they have become unemployed or employed at a lower wage. At the other end of the continuum, the caselaw has generally held that where a payor loses employment through no fault of their own, the resulting change in income will generally constitute a material change in circumstances, justifying adjustment of the support order.

43. In some cases, it is difficult to determine if a payor is a victim of unfortunate financial circumstances, or whether he or she is the author of their misfortune.

44. But in the Applicant’s case, there is no uncertainty as to cause and effect. He may not have quit his job. But he created and controlled the circumstances under which his job was terminated. He made conscious decisions to do things – illegal things – with the full knowledge that his reckless and anti-social behavior would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.

[36] In Rogers, Justice Pazaratz found that the father was intentionally unemployed due to his own reckless behaviour, without reasonable excuse. He imputed the base income that the father had previously earned for support purposes.

[37] Many courts have taken a similar approach.

[38] In Luckey v. Luckey, 1996 11217 (S.C.J.), the court did not reduce a support order when the payor lost a job for assaulting a co-worker.

[39] In Sherwood v. Sherwood, 2006 40795 (SCJ), the court did not reduce a support order when a payor was fired for his own misconduct.

[40] In Costello v. Costello, 2012 ONCJ 399, Justice Roselyn Zisman did not reduce the payor’s income for support purposes when he lost his job due to impaired driving charges.

[41] In Billingsley v. Billingsley, 2010 ONSC 3381, the court chose not to reduce the payor’s support obligation when he was sentenced to 22 months in jail.

[42] In Stoodley v. Klein, 2013 ONSC 3058, the court did not reduce the payor’s support obligation when he lost his employment due to criminal convictions related to assaulting his wife.

[43] This court took a similar approach and did not reduce the payor’s support obligation during his eight-month incarceration for assaulting his wife in S.H. v. R.R.A., 2016 ONCJ 255.

[44] However, the imputation of income to a payor who is earning less income due to their own misconduct or reckless behaviour is not automatic. It remains an exercise of discretion for the court.

[45] In Cote v. Taylor, 2013 ONSC 5428, the court rescinded child support arrears accumulated during the five years the payor was in prison. The court wrote at paragraph 23:

[23] I fail to see any rational basis to impute income to Mr. Taylor while he was incarcerated for five years. There may be situations where a payor is convicted of an offence against his spouse or a family member, or of an offence to defeat creditors, where it would offend public policy to allow an incarcerated person to avoid his support obligation because of his crime. (see Bernard v Bernard, [2208] A.J. No. 302 (A.B.Q.B.) at para 42 and 43). However, the matters for which Mr. Taylor was incarcerated, during which time his support arrears accrued, had no connection with his support obligations. I am not prepared to find that although Mr. Taylor had no ability to pay the support ordered to be paid on December 21, 2000, public policy demands that he not be relieved of his obligation because he is benefitting from his criminal act.

[46] In S.M. v. M.T., 2018 ONSC 6011, Justice P. MacEachern chose not to impute income to a payor who had been incarcerated for 18 months and would not be able to earn the same level of income after his release from jail. She wrote the following at paragraphs 44 and 45:

[44] This matter is not a situation, in contrast to some of the other decisions, where the Respondent’s present incarceration is related to conduct that was motivated by an intention to evade his child support obligation. Although the law in Ontario, under the Drygala v. Pauli decision of the Ontario Court of Appeal, is that there is no need to find a specific intention to evade child support obligations before income can be imputed, the lack of such an intention may still form part of the circumstances the court may consider in determining whether it is appropriate to impute income.

[45] Based on all of the circumstances before me, I find that it is not appropriate to impute income to the Respondent for the purpose of paying child support. The Respondent has no ability to pay child support at this time. The consequences of making a child support order that the Respondent has no means of paying exposes the Respondent to further enforcement measures due to non-payment, which ultimately exposes him to the risk of further incarceration. Such a result does not serve the interests of justice, does not provide a fair and just result, and does not assist the best interests of K.

[47] The court is also not bound to impute income at the payor’s previous income level if it decides to impute income due to the payor’s reckless behaviour or misconduct. It can impute income in an amount different than what the payor had been earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773.

[48] In Samaroo v. Monasar, 2016 ONCJ 47, where a payor had unjustifiably quit his job in 2014 and had not found comparable employment by the time of trial, this court decided to maintain the payor’s support obligation from the time he quit his job, and only reduce it beginning in February, 2016. This was determined to be a fair balancing of the consequences of the payor’s decision to quit his job.

[49] In Malcolm v. McGee, 2017 ONCJ 357, where a payor was fired from their job due to his misconduct, this court wrote at paragraphs 46 and 47:

[47] The court must determine how to allocate the consequences of the father’s poor decisions. The mother argues that the father should bear the entire cost of these decisions – the child should not receive any less support.

[48] The court agrees with the mother to some extent. However, at a certain point, an existing order can become unrealistic and unjust due to a payor’s changed circumstances – no matter if those changed circumstances were caused by the payor’s misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order.

[50] In Malcolm, the court balanced these factors by maintaining support at the father’s prior income level for seven months before reducing it to reflect his actual income.

3.2 Analysis of the father’s evidence

[51] The father ran his law practice through his solely-held corporation – Paul Anthony Wilkins Professional Corporation.

[52] The father filed personal notices of assessment indicating that his line 150 income for both 2017 and 2018 was $70,000. He told the court at the hearing of this motion that his income declined when his troubles with the Law Society of Ontario began.

[53] The father said that he has been unable to work since his licence was revoked in August 2019. He said that the Canada Revenue Agency (CRA) has placed a lien on his business account. He said that he owes the CRA about $550,000. He said that he owes the bank $250,000 for his line of credit. He claimed to have credit card debts of $23,000 and that he owes the Law Society of Ontario $45,000.

[54] The father told the court at the motion hearing that he plans to file for bankruptcy.

[55] The father filed several job applications he has made since August 2019 to work in the insurance claims field. He said that he has not received any job offers. He told the court that he is being financially supported by friends.

[56] The father told the court at the motion hearing that he sold the family home in September 2019 for about 1.25 million dollars. He claimed that he only cleared $60,000 from the sale of the home and that he paid a debt with that money.

[57] The father was generally not credible and the court found his evidence to be unreliable.

[58] The court does not accept that the father only earned $70,000, as he claimed, in 2017 and 2018.

[59] The father significantly delayed in providing the mother with any financial disclosure. When he did provide financial disclosure, it was woefully incomplete. In particular:

a) He did not comply with a number of extensions to file his financial disclosure.

b) He did not provide complete copies of his 2016 to 2018 personal income tax returns.

c) He did not provide his 2017 and 2018 corporate returns.

d) He provided no income information for 2019, personal or corporate.

e) He did not provide any meaningful backup documentation to establish his revenue and expenses.

f) He provided no evidence about the sale of his home, including a statement of adjustments showing the sale price and how the proceeds were disbursed.

g) He provided no evidence about the debt he claimed to have paid from the proceeds of the sale of his home.

[60] The father was represented by counsel until the fall of 2019. He was advised by the court about his disclosure obligations yet chose to disregard them. The court finds the father’s failure to provide meaningful financial disclosure in a timely manner to have been deliberate and an attempt to avoid his support obligations. It draws an adverse inference against him.

[61] A review of the 2016 reassessment for the father’s corporation shows revenue of $2,187,229, salaries paid of $1,037,915 and net (after-tax) income of $340,324. The father’s personal 2016 notice of reassessment showed income of $210,000. The father provided no explanation or meaningful documentary evidence about how these figures were arrived at.

[62] The 2016 corporate reassessment showed that the father had a thriving legal practice. He was clearly earning much more than $70,000 each year. The father did not provide an acceptable explanation or any supporting documentation that would lead the court to accept that he had such a significant drop in his income after 2016. The court agrees with the mother that it strains credulity that the father earned exactly $70,000 in both 2017 and 2018.

[63] It appears from the disclosure provided by the father that he has not been properly remitting HST/GST and payroll deductions to the CRA and has not been paying his personal and corporate taxes. On November 25, 2019, the CRA sent him a letter indicating that it was seeking income tax arrears from him of $47,017. On December 4, 2019, the CRA sent two letters to him indicating that they are considering assessing him for $232,736 for unpaid GST/HST and $232,736 for unpaid source deductions as the sole director of his corporation.

[64] The father provided no explanation about why his debts are significantly higher than his assets, even taking the CRA claims out of the equation. He was earning substantial money, not remitting HST and source deductions and was underpaying his taxes. Where did all of his money go? Absent a viable explanation, the logical inference at this point is that the father is hiding money.

[65] The father’s credibility is hurt by the revocation of his licence to practise law due to professional misconduct arising out of his misappropriation of trust funds.[^3]

[66] The father’s credibility is also hurt by his conduct in this case. He stopped paying support to the mother in May 2019 (although he did pay the mortgage on the family home until September 2019). He did not pay any of the $8,000 the court ordered him to pay to the mother for support. He said that he received $60,000 from the sale of his home in September 2019 and gave none of it to the mother for support. He has actively avoided providing the mother with meaningful financial disclosure. He has delayed this process and has tried to avoid his support obligations.

3.3 Determination of father’s income

[67] The court accepts that there has been a reduction in the father’s income since his licence was revoked. He can no longer work as a personal injury lawyer. This was not an attempt by him to avoid his support obligations.

[68] The reduction in the father’s income is directly attributable to his own misconduct and reckless behaviour. The court finds that he is deliberately unemployed by his own actions, without reasonable excuse. Income should be imputed to him.

[69] It is likely, based on the evidence produced at this point, that the father earned annual income well in excess of $200,000 from 2017 until his licence was revoked in August 2019. This is even without grossing up his income for paying taxes on a lower reported income to the CRA.

[70] It appears that the father had the ability to pay significant support to the mother from the proceeds of the sale of his home and chose not to do so.

[71] The father has limited his job search to insurance claims positions. He should be widening this search and working.

[72] Balancing these factors, the court will impute the father’s income at $150,000 (the figure sought by the mother) for the purpose of the temporary support calculation for the period from October 1, 2019 until March 31, 2020. Starting on April 1, 2020, the father’s annual income shall be imputed at $100,000 for the purpose of the temporary support calculation. This recognizes the reality that the father is no longer earning $150,000.

[73] This order will take the place of the support terms in the court’s September 20, 2019 order.

[74] The monthly guidelines table amount for two children at an income of $150,000 is $2,077. At an income of $100,000 it is $1,471 each month.

[75] These findings are made in an effort to have a just temporary support regime. At trial, the court will hopefully have the benefit of comprehensive financial information about the father and the evidence will be more thoroughly examined. The trial judge will be better positioned to determine whether imputation of income at this level should be changed.

Part Four – Special expenses

[76] The children attend at daycare, before and after school, so that the mother can work. The mother pays a total of $6,400 for this expense during the school year.

[77] The mother also spends $3,290 for camp for the children during July and August.

[78] The court finds that these are eligible childcare special expenses pursuant to section 7 of the guidelines. They are necessary in the best interests of the children and are reasonable expenses.

[79] The guiding principle set out in subsection 7 (2) of the guidelines is for the parties to contribute to section 7 expenses in proportion to their incomes. The court sees no reason to deviate from the guiding principle in this case.

[80] The court must next determine what amount of spousal support, if any, the father is to pay to the mother, in order to calculate the parties’ proportionate sharing of the section 7 expenses.

Part Five – Temporary spousal support

5.1 Entitlement

[81] Section 30 of the Family Law Act (the 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. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

[82] 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. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, 1999 715 (S.C.C.).

[83] On a temporary motion, the support claimant is required to establish a prima facie case for entitlement: See: Politis v. Politis, 2015 ONSC 5997 at paragraph 15.

[84] The court in Politis reviewed the principles applicable to an interim motion for spousal support at paragraph 14 as follows:[^4]

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;

2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;

3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;

4. The courts should not unduly emphasize any one of the statutory considerations above others;

5. On interim applications the need to achieve economic self-sufficiency is often of less significance;

6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines (SSAG) unless exceptional circumstances indicate otherwise;

7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[85] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: See: Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.).

[86] The father in his affidavit wrote:

I absolutely will not pay any spousal support even if and when I obtain employment.

[87] The mother established her entitlement to temporary spousal support on both a compensatory and non-compensatory basis.

[88] Prior to the birth of the parties’ first child, the mother worked as a teacher earning annual income of $40,000. The parties agreed she would stay at home after the child was born.

[89] In 2015, the father paid the mother a salary of $611 each week from his corporation. He increased this to $932 each week after they separated. This stopped on September 10, 2018.

[90] The mother found work as a data entry clerk on October 10, 2018, earning $16 per hour. This job ended on November 27, 2018.

[91] The mother was unemployed until October 25, 2019, when she started her current job as a customer service manager.

[92] The father has had little contact with the children since August 2018. The mother has been their sole caregiver.

[93] The mother has a compensatory claim for spousal support based on the roles she assumed during the parties’ relationship. She was the primary caregiver for the children prior to the separation and has continued that role after the separation. She left the workforce to care for the children. This enabled the father the time and the flexibility to increase his income-earning ability. He was able to develop his law practice. The mother has compromised her earning capacity because of the roles she assumed in the relationship. If she had continued to work as a teacher, instead of staying at home with the children, she would likely be earning a much higher income at this time.

[94] 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, based on the income imputed to him. She was fully financially dependent on the father during their relationship. The mother has been significantly disadvantaged due to the breakdown of the relationship. Her standard of living has been reduced.

5.2 The amount of spousal support to be paid

[95] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See: D.R.M. v. R.B.M., 2006 BCSC 1921, [2006] B.C.J. No. 3299. Both parties presented the court with SSAG software calculations.

[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] The mother provided the court with an SSAG software analysis based on an imputed income to the father of $150,000 and her income of $40,950. She included special expenses of $9,530 (as opposed to the actual special expense of $9,690) but inputted the amount of $13,000 as a tax deduction related to the expense, when she should only have inputted $9,690. This incorrectly skewed the SSAG ranges and section 7 expense payments in the software analysis that she presented.

[100] The SSAG formula, with the proper tax deduction inputted, indicates that the low range of support is $998 per month. The mid-range of support is $1,597 per month and the high range of support is $2,076 per month.

[101] An SSAG software analysis based on the father’s imputed annual income of $100,000 indicates that no spousal support is payable at the low and mid ranges and that the high range of support is $425.[^5]

[102] The court has considered that a strong compensatory claim will usually result in an award closer to the higher end of the SSAG range. The mother has a strong compensatory claim. The father’s poor conduct in this case is also a factor in ordering a higher amount of support – courts need to send a strong message that support avoidance will not be tolerated. One of the ways to send that message is with costs awards. Another is when the court exercises its discretion in determining support.

[103] The court will order the father to pay the mother temporary spousal support of $1,800 each month starting on October 1, 2019. This shall be reduced to $300 each month starting on April 1, 2020.

Part Six – Special expense payments

[104] The software calculations show that the father’s monthly contribution to the child’s special expense are $24 starting on October 1, 2019 and are increased to $28 each month starting on April 1, 2020.[^6]

Part Seven – Conclusion

[105] A temporary order shall go on the following terms:

a) This order shall replace the support terms contained in the court’s order dated September 20, 209.

b) The father shall pay the mother child support of $2,077 each month starting on October 1, 2019. This is the guidelines table amount for two children based on the father’s imputed income of $150,000. This amount will be reduced to $1,471 each month starting on April 1, 2020. This is the guidelines table amount for two children based on the father’s imputed income of $100,000.

c) Starting on October 1, 2019, the father shall pay the mother $24 each month for the children’s special expenses pursuant to section 7 of the guidelines. Starting on April 1, 2020 this amount shall be increased to $28 each month.

d) The father shall pay the mother temporary spousal support in the amount of $1,800 each month, starting on October 1, 2019. This sum shall be reduced to $300 each month starting on April 1, 2020.

e) These orders are without prejudice to the parties’ ability to claim a different amount and start date for their support claims at trial.

f) A support deduction order shall issue.

[106] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by March 12, 2020. The other party will then have until March 19, 2020 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.

[107] If the mother seeks her costs, she shall serve and file her written costs submissions by March 26, 2020. The father will then have until April 6, 2020 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.

Released: February 28, 2020

_____________________ Justice S.B. Sherr

[^1]: The mother also moved for temporary custody of the children and a supervised access order. These issues were resolved on consent and incorporated into a court order on February 24, 2020.

[^2]: The parties agreed that the court should read the father’s disciplinary cases. The facts set out in paragraphs 12 and 13 above come from these decisions. See: Law Society of Ontario v. Wilkins, 2019 ONLSTH 47, for the decision making a finding of professional misconduct against the father.

[^3]: The father paid back this money.

[^4]: These principles were endorsed in Robson v. Pellerin, 2019 ONSC 6729.

[^5]: The SSAG software analysis is attached to the decision.

[^6]: These low amounts are attributable to the significant benefits and tax credits that the mother receives. The precise calculation is contained in the final schedule of the software analysis.