ONTARIO COURT OF JUSTICE DATE: 2023 01 19 COURT FILE No.: SUDBURY D-216-20
BETWEEN:
DEBORAH MANARY Applicant
— AND —
NIGEL SMART Respondent
Before: Justice Leonard Kim
Heard on: September 26, 27 and 28, 2022 Reasons for Judgment released on: January 19, 2023
Counsel: Melissa Sullivan, for the applicant Shawn Hamilton, for the respondent
KIM J.:
1: OVERVIEW
[1] The applicant, Deborah Manary, has brought an application seeking spousal support from the respondent, Nigel Smart, on a compensatory and non-compensatory basis. A trial was held on September 26, 27 and 28, 2022. The evidence consisted of voluminous materials including affidavits and financial statements submitted by both parties combined with their viva voce testimony over the course of those three days.
[2] On the second day of this trial, certain concessions were made by the respondent. This left us with the main issue to be decided being the quantum of spousal support the respondent should pay the applicant on an indefinite basis. What also remains in dispute is the issue of retroactivity specifically when those payments should come into effect.
[3] The general position of the parties can be summarized as follows.
2: POSITION OF THE APPLICANT
[4] While the parties were together, the respondent worked in a variety of different types of employment and was often in between jobs. Not long after the parties began their relationship, the respondent started his own landscaping business and took out a $30,000 loan to establish this business. After a short period of time, a large sum of debt accumulated, and the business was unable to continue. The respondent then commenced employment at Westbrook Floral where he assisted in building green houses. In 1996, the applicant’s father passed away leaving her with an inheritance in the amount of $100,000 in addition to property. That same year the couple used $60,000 of the applicant's inheritance on a down payment to purchase a farm in Smithville.
[5] After four years of cohabitation, the parties married in 1996. At the time, it was mutually agreed that the applicant would be a stay-at-home mother taking on the various domestic duties within the home and caring for the children of this union. On […], 1998, the couple's daughter Janie Deborah Smart was born. Although Janie is almost 25 years old today, she suffers from a developmental disability and is heavily dependent upon the applicant to care for her day-to-day needs. Janie was diagnosed with this disability at the age of four when the parties were together. This disability has prevented her from establishing independence and earning an income. Medical and educational documents filed in this trial confirm that Janie's overall functioning is in the extremely low range. Exhibits attached to the affidavit of Deborah Manary dated June 17th, 2021, confirm that she is unable to maintain financial skills or executive functioning. Those records conclude that she will need permanent guidance for support of life skills. She has never been able to leave the care of the applicant mother, and this is not expected to change. Janie currently receives support from the Ontario Disability Support Program (ODSP) in the form of $1072.00 per month.
[6] The applicant alleges that in 2004 when the respondent began working for Fairview Contracting in Smithville, he began to be unfaithful towards her. She alleges that he engaged in an extramarital affair with another woman and became addicted to cocaine. These events allegedly took place when the respondent left the family home for approximately six months. The respondent then returned home and the relationship with the applicant rekindled. Suffering another financial set back, the couple lost their farm because they were unable to pay for expenses.
[7] The respondent then commenced employment as a truck driver for Contour Trucking and the couple moved into a home together in Smithville. However, the respondent left that job and began working at the Ohsweken First Nations reservation for a tobacco manufacturing company.
[8] Following this, the respondent became a business partner in an energy drink company named “Bomb" based out of Hamilton. In 2015, when the couple returned from a two-week vacation in Trinidad and Tobago, they discovered that the respondent was being removed as a business partner from this company.
[9] He had suffered major financial loss due to this failed business venture with business associates who later threatened violence against him. This caused the respondent to be under a great deal of stress. In 2015, the respondent experienced heart trouble and required medical intervention in the form of open-heart surgery.
[10] The parties sold their home in Saint Anne, Ontario in 2016 leaving nearly $65,000 in trust with the lawyer who represented Mr. Smart in the civil litigation stemming from the failed business venture involving the energy drink. As a joint owner of the property that was sold, the applicant has not received any information as to what happened to those funds that were provided to their real estate lawyer in 2016 as part of the sale of their home. Threats to their lives and concern for their own safety prompted the parties to move to the town of Monetville in the District of Sudbury in 2018. This community is unfamiliar to the applicant and their special needs daughter. They have no family roots in the north region.
[11] At this time, the respondent became employed with a company called Safeline, however, was laid off shortly thereafter. He then began working for Gervais Forestry where he was also laid off. Subsequent to this job, he then secured employment with Sutherland Contracting as a truck driver. The applicant asserts that the respondent has a pattern demonstrating an inability to maintain consistent and reliable employment over the years of their cohabitation.
[12] The applicant states that she has been seasonally employed at a lodge on Lake Nipissing over the summers of 2018 and 2019. However, due to the COVID-19 pandemic, that lodge was unable to offer her seasonal employment for the summer of 2020. She expresses that she is struggling to pay rent, along with other utilities and costs associated with their current housing that was a product of the respondent moving her and their daughter to this rural northern Ontario community.
[13] In March 2019, the respondent informed the applicant and their daughter that he would be leaving them to move in with another woman in Monetville. It was at this point, the parties agreed to mutually separate. Shortly thereafter, the respondent no longer resided with this other woman in Monetville but the parties remained separated.
[14] According to the applicant, less than a month after their separation, the respondent purchased a new 2017 Jeep motor vehicle, which required him to pay approximately $800 per month. News of this vehicle purchase was quite disappointing to the applicant considering that she is financially struggling while taking care of their special needs daughter. As for their own means of transportation, the applicant relies on an older vehicle that is in poor condition. Transportation is a key factor because in the rural community of Monetville, the nearest grocery store is dozens of kilometers away.
[15] The applicant believes that the respondent currently resides with his new romantic partner, Cathy Mercier, in North Bay, and that he benefits financially by sharing with her day to day living expenses. She asserts that the respondent falsely represents the true nature of this romantic relationship as one of a landlord-tenant arrangement and points to photos in his Facebook Messenger account that strongly suggest that Mr. Smart and Ms. Mercier publicly present themselves to be a married couple.
[16] Further evidence of the true nature of the relationship between the respondent and Ms. Mercier can be found in exhibit 5, which are the Desjardins Insurance documents. Those documents were accessed by the applicant from the respondent’s Facebook Messenger account in approximately June of 2020. They show that insurance documents provide a coverage summary and financial needs analysis for Catherine Mercier and Nigel Smart, the respondent. This financial needs analysis represents Ms. Mercier and the respondent to be married to each other as part of a spousal financial assessment with Desjardins Insurance.
[17] There is also evidence of an automobile insurance policy for a 1998 Lexus naming both of these individuals as insured parties for this single vehicle at a common address from April 2020 to April 2021.
[18] The applicant states that she has consistently been the primary caregiver of their special needs daughter who has been struggling with a developmental disability from a young age. Her evidence is that she has been a loyal and loving spouse and mother to the respondent and their only daughter. She also takes the position that she had sacrificed a potential career in order to be able to care for Janie and ensured that their daughter had access to the best resources available to encourage her to reach her full potential. The applicant presents herself as a committed and generous volunteer at their daughter’s school which formed the backdrop of a supportive educational experience for their child as she developed over the years. Her characterization in this regard is supported by a letter from Janie’s former school teacher.
[19] By agreeing to stay at home to raise their daughter when they were married in 1996, the applicant indicates that she sacrificed her potential to earn a living wage and gain valuable work experience. These sacrifices permitted the respondent to advance his career over the years to reach his full potential and earn a significant income outside the home.
[20] The applicant is currently 60 years old and surviving on part time minimum wage employment cleaning homes in a bilingual community with little roots and support. On top of this, she bears the sole responsibility to financially support the parties’ adult daughter who cannot live independently and requires constant support to manage her own finances and make decisions in her own life. The applicant’s work experience has been limited to low paying minimum wage jobs at a convenience store, local lodge, and briefly as a bank teller. She indicates to the court that her lack of French language skills poses as a barrier to obtaining employment in the bilingual community of Monetville.
[21] The cost of rent and other basic living expenses as filed in the applicant’s financial statement reveals that her monthly rent is $1200.00. Utilities and household expenses total $960.00 per month and expenses related to transportation, health and personal expenses amount to $321.00 per month. It appears the applicant's monthly income is less than her monthly expenses. Janie receives financial support from the Ontario Disability Support Program (ODSP) in the amount of $1078.00 per month and contributes $300.00 to $600.00 per month towards rent. Janie also contributes $250.00 per month for utilities and household expenses. The applicant submits that even with Janie’s contribution, the two of them are experiencing financial hardship due to the separation.
[22] The applicant points to a history of the respondent withholding financial information to reveal his true level of income. She also points to text messages in October 2020 sent by the respondent to their daughter at the time the respondent received notice from Mr. R. Dupuis, her prior lawyer, of an intention to seek spousal support. According to the applicant, those text messages paint the respondent as an unwilling contributor to spousal support and reluctant to provide his financial disclosure to her and her lawyer in order to accurately assess his income and commensurate support obligations.
[23] The applicant reminds the court that the respondent is still married to her and was married for 23 years up until their point of separation in March of 2019. She also points to evidence of them cohabitating together prior to their marriage dating back to 1992.
[24] The applicant submits that the respondent is intentionally underemployed in the face of his obligation to earn what he is capable of earning. She argues that the health issues suffered by the respondent do not prevent him from earning a significant income today driving trucks. She points to the rise in his income after the 2015 heart surgery that gradually increased through the years to a peak of $92,718.00 in 2019.
[25] She characterizes the reduction in his income as due to a deliberate choice to work seasonally and a decision to not work full-time where opportunities have been made available to him. Full-time employment as a truck driver year-round like the one offered to him by Superior Propane, would permit the respondent to earn significantly higher than $41,137.00 in 2020 and $44,819.00 in 2021. She argues that the significant drop in income from 2019 to 2020 is an inaccurate depiction of his true income potential and solely due to his knowledge of this spousal support application being commenced.
[26] To this end, the applicant is asking the court to disregard the respondents significantly lower income documented in the years 2020 and 2021. Put another way, her first argument is to have the court rely on the respondent’s income prior to separation in March 2019 which would include the years 2017, 2018, and 2019.
[27] Alternatively, given the significant fluctuation in the respondent’s income between 2017 and 2021, the applicant is asking this court to impute his income by looking at the average amount earned by both parties during those years. Additional factors including the parties’ age, education, expertise, employment skills, health and availability of job prospects should also be considered. An additional important consideration should include an accounting of the applicant’s ongoing care of their special needs daughter indefinitely.
[28] She further asserts that the medical evidence relied upon by the respondent to justify a reduction in income is severely lacking and that the respondent’s credibility as a whole should be rejected in light of his tendency to misrepresent disputed facts, withhold financial information and minimize his employability and historical income.
3: POSITION OF THE RESPONDENT
[29] At the outset of this three-day trial, the respondent’s legal position on the issue of spousal support entitlement evolved. The pleadings in the continuing record filed on behalf of Mr. Smart, disputed the applicant's entitlement to spousal support. However, on the second day of this trial, Mr. Hamilton, on behalf of his client, conceded the issue of entitlement leaving only the issue of quantum for this court to decide.
[30] The respondent agrees that he began cohabitating with the applicant at the end of the year in 1992 and the couple married in October 1996. He also agrees that the couple separated in March of 2019. However, he disputes that when the couple first cohabitated, they resided in the applicant parents’ family residence. From his perspective, this is inaccurate, and the parties resided in the applicant's rental apartment in Ancaster, Ontario in 1992 and then a rented home in Beamsville, Ontario. In his mind, he contributed his fair share of expenses.
[31] The respondent has outlined an extensive employment history commencing with Ciccarelli and Sons and then a landscaping company known as Smart Scapes. The latter was a failed business venture to which he places some blame upon the applicant for refusing to help him to grow that business. He then went on to work at Westbrook for a few years which provided a stable income and an established credit history in order to obtain a mortgage.
[32] When their daughter Janie was born in 1998, the respondent admits that the parties agreed that the applicant would stay home to care for their daughter and that he would be the main provider for the household. However, part of that agreement also required the applicant to work once their daughter commenced school. He takes the position that the applicant always had an excuse for not seeking employment and expresses that he did his equal share of taking care of Janie and completing household chores while the family was united.
[33] He points to the applicant’s gambling habit due to bingo as a reason for bills not being paid and the couples’ overall financial problems the parties incurred over the course of their marriage.
[34] The respondent admits that he made a business investment in Bomb Energy Drink but that his business partners were corrupt. He explains that the applicant was a willing participant in this business venture and had full access and knowledge of the financial state of their bank account. He explains that a lawsuit was commenced as part of this dispute with the business partners and his lawyer withheld approximately $65,000.00 in trust pending the outcome of this litigation.
[35] He deposes at paragraph 16 of his affidavit of June 10th, 2021, that this lawyer was disbarred by the Law Society of Ontario and that the Society was still withholding these funds. He states that the applicant is well aware that he has tried on numerous occasions to recover these funds to no avail.
[36] Like the applicant, the respondent cites safety concerns from the business partners of Bomb Energy Drink as a source of stress resulting in the respondent’s health deteriorating.
[37] He describes a defining medical event as a life-threatening heart attack that required open heart surgery in 2015 for a quintuple bypass.
[38] Due to the seriousness of the heart issues he was experiencing, he was hospitalized for some time in Hamilton and required a recovery time of approximately 6 to 12 months. At the time, he urged the applicant to find employment to help pay the bills, but she did not make any attempts to do so. Although he could not work in manual labour, even while recovering from heart surgery, the respondent submits that he was actively searching for employment. The couple eventually sold their house in the Niagara Region and relocated to Monetville in northern Ontario. He characterizes the move as a mutual decision that the applicant willingly agreed to as part of a much-needed change of scenery.
[39] At some point, the Respondent landed a job at Safeline and worked with this company for over two years but was laid off due to a shortage of work. Within a few weeks the respondent then commenced seasonal employment with Gervais Forestry as a truck operator at Henvy Inlet. After being laid off from that job he was able to secure employment at Sutherland Contracting driving a water truck.
[40] The respondent vigorously disputes any element of infidelity and denies any prior addiction to illicit drugs such as cocaine. He does, however, admit to a brief period of cocaine use during a narrow time frame and expresses regret for this. He also explains that he moved in with a female neighbour as his relationship with the applicant began to deteriorate and he was forced out of the home. According to the respondent, the applicant was experiencing emotional distress and explained to him that she needed her own space and wanted to separate. He characterizes himself as a victim of physical violence and aggressive conduct from the applicant and that rumors were circulated across their community that he was having an affair with this female neighbour whom he moved in with on a temporary basis.
[41] It is at this time that he states that he purchased a 2017 Jeep partly as a form of temporary accommodation while he was going to school to upgrade his driver’s license in order to commence employment as a truck driver with Sutherland Contracting.
[42] The respondent submits that currently, his work is seasonal and that he has suffered financially due to the onset of the COVID-19 pandemic. He explains to the court that his life has changed as a result of suffering a major medical event requiring heart surgery back in 2015. It is this event that has changed his life and limited his ability in the type of work that he can take on because the only type of work that he can do his physical labour.
[43] The respondent explains that his financial circumstances have been challenging to say the least in recent years. He submits that the applicant has assets accumulated during the course of their 27-year relationship that should be taken into account in her financial circumstances.
[44] The respondent initially disputed entitlement for spousal support and claimed in his pleadings that the applicant and his daughter should be able to care for themselves.
[45] He asserts that the applicant has had more than ample opportunities to gain work experience and progress her career. He believes that she is still capable today and that combined with their daughter’s ODSP benefits, the spousal support owed is significantly less than what the applicant seeks.
[46] Due to his ongoing health issues, the respondent has provided evidence that he is on modified duties with his current employer, Miller Paving. The respondent has been employed by this company since May of 2021 and earns a wage of $23.00 per hour at 40 hours per week. The nature of this employment is one of a truckdriver that is directly involved in the paving of asphalt during the seasonal months each year. However, this employment is of a seasonal nature and the respondent has a pattern of being laid off come November of each year and recommencing employment in May. Upon being laid off from seasonal employment, the respondent has applied for employment insurance to sustain him during the intervening months.
[47] The respondent takes the position that he is not capable of earning more than $44,819.00 per year. He also argues that the applicant has not conducted a meaningful search for employment to improve her personal financial circumstances, which she is fully capable of.
[48] The respondent submits that his income be imputed at $63,275.00 and the applicant’s at $17,000.00. This would result in a monthly payment of spousal support of $720.00.
[49] Alternatively, the respondent submits that his 2020 income of $44,819.00 and Ms. Manary’s income of $20,156.00 for that same year, produces a range of options that might also be appropriate. Those options are $771.00 (low), $899.00 (mid) and $933.00 (high), and effectively provide the court with adequate discretion to take into account the applicant’s ongoing care of their special needs adult daughter.
[50] He denies being romantically involved with Ms. Mercier and characterizes this relationship as one of a landlord-tenant. He states at paragraph 24 of his affidavit dated June 10th, 2021, that he resides in North Bay and rents a room from her along with other boarders in that same home.
[51] The cost of his rent is $700.00 per month add an additional $700.00 for utilities and other household expenses. He also requires $200.00 per month for transportation, and a total of $1400 per month that includes a combination of health, personal and other expenses which includes spousal support payments of $720.00 per month.
[52] According to the respondent, during the course of their 27-year relationship, the parties experienced financial hardship at various times. The reason for the financial difficulties were due to a failed business venture with former business partners as well as inconsistent employment opportunities available to the respondent.
4: THE INTERIM ORDERS FOR SPOUSAL SUPPORT
[53] The applicant firmly asserts that she has not yet received any spousal support from the respondent to date. There are two interim orders issued in these proceedings ordering the respondent to pay spousal support and to be enforced by the Family Responsibility Office. The first interim order was issued by Justice Buttazzoni on consent and without prejudice on July 20, 2021. The first monthly payment of $568.00 was due on August 1, 2021.
[54] The second interim order was issued by Justice Klein after a contested motion on March 14, 2022. His Honour ordered the respondent to pay spousal support in the amount of $720.00 per month effective April 1, 2022, based upon an imputed annual income of $63,275.00 for the respondent and $17,000.00 for the applicant.
[55] The respondent submits that the lack of receipt of any spousal support to date is on account of administrative delays as the payments transition through FRO and through no fault of his own.
5: LAW AND ANALYSIS
[56] Section 33(8) of the Family Law Act, R.S.O. 1990, c. F.3, states the purposes of a spousal support order. They are listed 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) .”
[57] The factors to be considered in determination of the amount of spousal support are listed in s. 33(9) of the Family Law Act:
33 (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 dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’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 dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed : 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant 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 dependant 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).”
[58] The rule of 65 (age plus duration of marriage (if at least 5 years)) for the without child formula, usually results in no time limit for support. SSAG Advisory Guide; Djekic v. Zai, 2015 ONCA 25.
6: HISTORY OF FINANCIAL DISCLOSURE BY THE RESPONDENT
[59] There is a documented history of the respondent explicitly refusing to provide financial disclosure to the applicant and her counsel. This is evidenced in the affidavit of Deborah Manary dated June 17th, 2021. Upon coming to the realization that the applicant was seeking spousal support in a letter from her counsel dated October 26, 2020, the respondent almost immediately objected to her claim. On October 29th, 2020, Mr. Smart sent the following text message to their daughter Janie who resides with the applicant:
“So this is what your mother’s up to now she's going to sync us both good luck bitch."
[60] Mr. Smart then called counsel for the applicant, Mr. R. Dupuis, on November 9, 2020. The full nature of this discussion can be found at paragraph 51 of the applicant’s affidavit dated June 17, 2021. Counsel for the applicant explained to Mr. Smart that he requires proper financial disclosure in order to determine an appropriate amount of spousal support claim. In response, Mr. Smart stated to this lawyer that he “would never receive his financials.”
[61] On the same day, Mr. Smart then sent another text message to their daughter which included an offer to pay $400.00 of spousal support per month. In that message Mr. Smart also stated, “I will not give my financials up to no one that won't even talk to me this is ridiculous…”. It is worth noting that this expression by the respondent to their daughter was a response to an offer to settle by the applicant's lawyer and a request by that lawyer for financial disclosure in order to determine a proper spousal support amount owed by the respondent.
[62] Subsequent to this message is another text from Mr. Smart to Janie offering to Ms. Manary a proposal to settle this matter for $500.00 per month. Nowhere in his message does he indicate a willingness to comply with the request for financial disclosure from Ms. Manary’s legal counsel.
[63] These statements from the respondent demonstrate a determined intention to suppress necessary financial information that both parties required in order to accurately assess his spousal support obligations to the applicant.
[64] The opposition to the requested financial disclosure must be viewed in conjunction with Mr. Smart’s financial statements and affidavits before me. During cross examination, it became evident that Mr. Smart has demonstrated a habit of underestimating his income. For example, his sworn financial statement dated January 11, 2021, documents a total annual income of $12,120.00. This may have been a careless oversight on the part of Mr. Smart in signing this financial statement and filing it with the court record.
[65] However, there is further evidence of inaccurate financial disclosure contained in the respondent’s affidavit sworn November 17, 2021, that states his annual income to be $29,176.76, when in fact his actual 2021 income was $44,819.00 – a discrepancy of more than $15,000.00.
[66] Adding to the inaccuracies in the respondent’s financial status is a complete omission of the 2017 Jeep in his financial statement, either as a prior asset he benefitted from or a subsequent debt. While this is no longer an asset for the respondent at trial, as demonstrated in the Trial Management Conference Brief located at Tab 11 of the Applicant’s Trial Record, both the respondent and Mr. Hamilton did not disclose the status of its existence despite repeated request from Ms. Sullivan. The unwillingness to disclose the purchase and possession of a 2017 Jeep, its current status at the time requested and subsequent repossession adds to the respondent’s tendency to conceal his financial assets to the applicant.
[67] With respect, the above conduct of the respondent combined with the explicit text messages sent to Janie in November 2020 upon realization that the applicant was seeking spousal support leaves me with little faith that Mr. Smart would be transparent and honest with this court.
[68] I have considered the disclosure of the respondent’s bank account that includes identical amounts in two consecutive financial statements filed in these proceedings. On January 11, 2021, Mr. Smart’s financial statements depicts his assets to be reduced to a bank account with Royal Bank of Canada (RBC) with a balance of $24.86. On March 9, 2022, his financial statement also notes a balance in the identical amount of $24.86 in an RBC account as his sole asset. The subsequent financial statement from the respondent dated September 8, 2022, documents this same account to have a balance of $62.47.
[69] Given the nominal amount in this bank account, I do not place any weight on the apparent oversight on the part of the respondent to update the quantum of the RBC bank account in his financial statement of March 9, 2022. What this evidence does tell me is that Mr. Smart appears to be living from pay cheque to pay cheque. This is a consideration that I must take into account when I balance the amount of spousal support he should pay to the respondent on an ongoing basis and towards arrears, if any.
7: $65,000.00 HELD IN TRUST BY THE SOLICITOR
[70] As indicated by the respondent, he explains that a lawsuit was commenced as part of a business dispute with partners regarding an energy drink and that his lawyer withheld approximately $65,000.00 in trust pending the outcome of this litigation. This was money that the applicant was also entitled to.
[71] The respondent deposes at paragraph 16 of his affidavit of June 10, 2021, that this lawyer was disbarred by the Law Society of Ontario and that the Society was withholding these funds before it was paid out to another party involved in the civil litigation with Bomb Energy Drink. He states that the applicant is well aware that he has tried on numerous occasions to recover these funds to no avail.
[72] Mr. Hamilton attempted to elicit additional evidence in the form of double-hearsay from the respondent during his examination in chief on this point at trial. However, when questioned as to the source of this information, Mr. Hamilton conceded that there were no conclusions the court could draw from this information. As a result, there is no admissible evidence before me that provides an explanation as to what happened to the $65,000.00 that was held in trust by the solicitor representing the respondent in the civil action with his former business partners and Bomb Energy Drink.
[73] The respondent maintains that he does not have access to this money and that his lawyer held these funds in trust prior to being disbarred by the Law Society.
[74] As a whole, when it comes to trying to understand what happened to this significant sum of money that both parties were entitled to, the respondent’s explanation is lacking in detail and logic. The Law Society is the governing body of all lawyers in Ontario and seeks to maintain a standard of professional responsibility and ethics in the practice of law. For $65,000.00 to go unaccounted for so many years without an explanation from the lawyer representing him or from the Law Society is highly unlikely. Mr. Smart’s evidence does not have a ring of truth given the obligations the Law Society has to the public as a governing professional body for lawyers in Ontario. Glaring omissions and specifics with respect to this lawyer that was in his view, disbarred by the Law Society, is the identity of the lawyer or any evidence from the Law Society website confirming this lawyer was in fact disbarred. Another glaring omission is the lack of any correspondence from the Law Society proving that they were previously holding these funds in trust and for what purpose.
[75] I find Mr. Smart’s explanation for the missing $65,000.00 to be fabricated and hold him accountable for those missing funds. The vagueness of the explanation provided is additional evidence of him attempting to avoid his personal responsibility in meeting his spousal support obligations to Ms. Manary and Janie. I find that he has not disclosed the full explanation to the court with respect to where this $65,000.00 is today, whether it still exists to begin with and if it is legally accessible.
8: RELATIONSHIP WITH CATHERINE MERCIER
[76] The respondent takes the position that Catherine Mercier is nothing more than a landlord to him. He denies being romantically involved with Ms. Mercier and characterizes this relationship as one of a landlord-tenant. He states at paragraph 24 of his affidavit dated June 10, 2021, that he resides in North Bay and rents a room from her along with other boarders in that same home.
[77] On the other hand, the applicant believes that the respondent is involved in a romantic relationship with Ms. Mercier and lives with her and another roommate. This is important for the purposes of determining the quantum of spousal support due to the potential for shared expenses between the respondent and Ms. Mercier within their common household. Depending upon the nature of their relationship, a more accurate picture of what the respondent can pay for spousal support could be revealed. Going further, if the respondent is in fact involved in a romantic relationship with Ms. Mercier, this would not only impact the quantum of spousal support, but it would also provide the court with a clearer view of the level of credibility owed to the respondent in these proceedings given his evidence to date.
[78] The applicant’s affidavit dated November 26, 2021, contains evidence that directly contradicts the respondent’s characterization of his relationship with Ms. Mercier. Exhibit “A” shows Mr. Smart's Facebook profile picture depicting Ms. Mercier cuddling up to him from behind and leaning her head against his while wrapping her arm around his chest. According to the applicant, Mr. Smart has referred to Ms. Mercier as “babe" in front of their daughter and that it is common knowledge that Ms. Mercier is Mr. Smart's girlfriend.
[79] Additionally, the applicant deposes at paragraph 14 of this affidavit that Ms. Mercier had expressed that she was going to have the respondent commence spousal support payments as soon as he got his job back under control and went back to work. The message from Ms. Mercier goes on to state that the respondent’s intention is now to “go to court.” This message is attached as exhibit “B” to the affidavit of Deborah Manary dated November 26, 2021.
[80] The explanation provided by the respondent with respect to the nature of his relationship with Ms. Mercier is not credible. I note that the respondent did not introduce any direct evidence from Ms. Mercier herself in these proceedings, as was his prerogative. The evidence we do have on this specific issue does not support his assertion that Ms. Mercier is nothing more than a landlord to him.
[81] The photograph of the respondent and Ms. Mercier cuddling together and publicly posted on his Facebook Messenger social medial profile, depict a couple, and speaks for itself. Individuals do not usually post pictures of their landlords cuddling with them on their individual social media profiles. These profiles are a form of identity for the account holder. What this photo attached as exhibit “A” to Ms. Manary’s Affidavit of November 26, 2021, truly tells us is that Mr. Smart wanted as many people in the public to know, that he and Ms. Mercier were together as a couple in a dating relationship.
[82] Furthermore, the content of text messages from Ms. Mercier to the applicant also supports my conclusion that she is more than a landlord to the respondent. Mr. Smart presented both in his materials in these proceedings and in the witness box, as an intelligent and well-spoken man. The court does not have any concerns with respect to his level of sophistication or understanding of his financial circumstances. Yet, the text message above from Ms. Mercier to the applicant regarding his ability to pay spousal support is consistent with a girlfriend or spouse, speaking on behalf of the two of them as a singular entity. I see no other reason why Ms. Mercier would be involved in these discussions to the degree of detail that is documented in exhibit “B”, of the applicant’s affidavit dated November 26, 2021.
[83] In consideration of the above evidence, the court finds that Nigel Smart and Catherine Mercier to be a couple living together in an intimate partner relationship in a common residence in North Bay. From this, the court also infers that the respondent shares his monthly expenses with Ms. Mercier in the context of this intimate partner relationship.
[84] Regrettably, I find that Mr. Smart has made a deliberate attempt to mislead this court by presenting his relationship with Ms. Mercier to be one of a landlord tenant arrangement as part of his broader efforts to minimize his financial ability to support the applicant through a spousal support order. On the contrary, the evidence overwhelmingly supports Ms. Manary’s assertion that the respondent is in fact romantically involved with Catherine Mercier and that this union of households and expenses has and continues to provide the respondent with a significant financial advantage over the applicant, post separation.
9: DESJARDINS INSURANCE POLICY
[85] As I have already found, the respondent’s Facebook Messenger profile and text messages from Ms. Mercier to the applicant strongly support that the Respondent is romantically involved with Ms. Mercier and has been for some time.
[86] If I am wrong in my conclusion, there is additional evidence that supports this finding. Exhibit 5 on the trial consists of three screenshots taken from the respondent’s Facebook Messenger account June 2020, in what we often referred to as the “Desjardins Insurance” documents in this trial. These documents consist of the following:
Coverage Summary for a Life Insurance Policy, noting Catherine Mercier as the policy owner. This document lists both Ms. Mercier and the respondent as named individuals for a “Life Term 20” life insurance policy. It also includes an initial total monthly premium amount as provided by Desjardins Insurance.
Financial Needs Analysis for Spousal, providing the names of Ms. Mercier and Mr. Smart, their dates of birth, marital status, and whether they are smokers. The two individuals have listed a common phone number and common address in North Bay.
An Automobile Policy actively listing Ms. Mercier and Mr. Smart as common policy holders for a 1998 Lexus GS 300 4D with a vehicle identification number, including dates of coverage liability and deductible amounts. Also important is the fact that both parties are listed as insured individuals with this common vehicle at a common address in North Bay.
[87] I have considered the explanations provided by the respondent both in his affidavit and in his testimony before me in this trial.
[88] I am also mindful of the expressed denial by the respondent of the following statement submitted by the applicant in her Request to Admit, at paragraph 27, dated August 29, 2022:
“I, Nigel Smart, have, at some point in time, been in a relationship with Catherine Mercier.”
[89] In the respondent’s Response to Request to Admit (Sept. 14, 2022), at paragraph 3, he specifically denies that the statement above is true.
[90] However, in court the respondent testified that his relationship with Ms. Mercier was initially romantic upon meeting her online but that he is no longer is in an intimate relationship with her today.
[91] Under cross-examination, the respondent described these statements in the Request to Admit as “trick questions”. Upon careful examination of the above relevant portions of the Request to Admit and Responses from the respondent, these statements are clear and straightforward. There is nothing confusing or tricky about them. It is evident that Mr. Smart has become confused in his own string of dishonest statements regarding the true nature of his relationship with Mr. Mercier and the significance of the Desjardins Insurance policy with her.
[92] Furthermore, during cross-examination, Mr. Smart repeatedly denied that Ms. Mercier and he had initiated a life insurance policy quote and were simply presented with this assessment from the Desjardins representative in an unsolicited manner. However, while being questioned by Ms. Sullivan, Mr. Smart later admitted that it was Ms. Mercier who requested a life insurance quote from the insurance representative at Desjardins but that he did not want to have anything to do with this.
[93] Those are two very different answers coming from the same witness on the same inquiries. I am left with no option but to state the obvious; that Mr. Smart’s statements both in the witness box and in his affidavit and Responses to Request to Admit, lacks credibility and reliability and must be rejected.
[94] The Desjardins Insurance documents as a whole provide additional circumstantial evidence that the respondent has not been truthful with this court regarding the nature of his relationship with Ms. Mercier. His responses are both confusing, unreliable and minimizing. I also find the respondent’s testimony to be inconsistent with what the evidence proves, that he is in fact in a romantic relationship with Catherine Mercier and they reside together in a common household in North Bay. Household expenses and transportation costs are being shared by both individuals which in effect, provides the respondent with additional financial support available to him.
10: OVERALL CONCLUSIONS REGARDING THE CREDIBILITY OF NIGEL SMART
[95] The court discourages any intentional deprivation of financial information from being disclosed to parties when that information has the potential to impact the ability to effectively identify a fair and reasonable quantum of spousal support. This is precisely what the respondent has exhibited in numerous situations referenced above. A pattern of withholding relevant financial information from the applicant is consistent throughout the respondent’s dealings with her upon separation. I have also found his characterization of the nature of his relationship with Ms. Mercier to be completely false and a deliberate attempt to mislead this court with a view to minimize the quantum of support that he may be capable of paying the applicant.
[96] Accordingly, I find that the respondent has little credibility with this Court on the factual issues in dispute in these proceedings.
11: CAN THE COURT IMPUTE THE RESPONDENT’S INCOME?
[97] As explained by Justice S. Sherr in L.B. v. P.E., 2021 ONCJ 114 at paras. 164 – 165, a finding of under-employment by a party must be made prior to imputing that party’s income:
“[164] 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, or if they are not reasonably utilizing property to generate income.
[165] 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. CA) .”
[98] The onus is on the party seeking to impute 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: Homsi v. Zaya, 2009 ONCA 322; Tahir v. Khan, 2021 ONCJ 1; E.D. v. J.S., 2020 ONSC 1474.
[99] The law is clear that a payor is intentionally underemployed if he or she chooses to earn less than what he or she is capable of earning: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).
[100] If the court is not satisfied that the payor is intentionally under employed, the inquiry stops there: Tillmans v. Tillmans, 2014 ONSC 6773.
[101] However, if intentional underemployment is established, the onus shifts to the payor to establish an acceptable reason: Jackson v. Mayerle, 2016 ONSC 72.
[102] If the payor cannot establish a reasonable explanation, then the court must decide what income should properly be imputed in the circumstances. A determination of what the payor is capable of earning is warranted: Popp v. D’Entremont, 2019 ONCJ 484.
[103] The court has a broad discretion to impute income where a party is not working to their potential. Considerations include 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 enjoying during the parties relationship. The court should determine what income the payor could earn if he or she worked to capacity: Lawson v. Lawson; Burke v. Poitras, 2020 ONSC 3162; Gill v. Gill, 2020 ONSC 1176.
[104] In the case at bar, the applicant is seeking to have the respondent’s income imputed that would be reflective of a 3-year average for the years 2017, 2018 and 2019 (approx. $79,154).
[105] The respondent, on the other hand, submits to the court that his true earning capacity is reflective of the more recent taxation years of 2020 ($41,137) and 2021 ($44,819) due to the state of his health which limits him to the seasonal job he currently holds as a truck driver at Miller Paving.
[106] The following three questions should be determined by a court when considering a request to impute income: [1]
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of the parties’ reasonable education or health needs?
If not, what income is appropriately imputed?
[107] Here is my analysis of these three questions:
1) Is the respondent intentionally underemployed or unemployed?
[108] Because the respondent has the responsibility to earn what he is capable of earning, the court must look to his previous years of income in order to reasonably assess what this looks like in his individual circumstance. As indicated earlier in my reasons, Mr. Smart has many years of experience in the fields of manufacturing, construction, and truck driving. There appears to be a significant fluctuation in the range of his income going back to 2017. The evidentiary record shows that the respondent’s last five years of income was as follows:
Income from the Respondent 2017: $ 64,299.00 2018: $ 80,446.00 2019: $ 92,718.00 2020: $ 41,137.00 2021: $ 44,819.00 TOTAL: $323,420.00
[109] There was a gradual increase in the respondent’s income in the years 2017, 2018 and 2019. Mr. Smart has proven himself to be capable of earning a significant salary as evidenced in his annual income which peaked in 2019 at $92,718.00. Quite dramatically, in the following year his income drops to less than half of that to $41,137.00 in 2020. In 2021, his income increased only marginally to $44,819.00.
[110] The respondent’s explanation for the significant reduction from 2019 is due to the impact of the Covid-19 pandemic and his health. Currently he works seasonally for Miller Paving operating a truck during the months that company paves roads. This amounts to a limitation of working approximately from May or June to November of each year. For the remaining half of the year, the respondent relies on unemployment insurance.
[111] He testified to being offered a full time job with Superior Propane as a truck driver with slightly less pay than his current employment with Miller Paving. However, he declined to accept that offer and prefers to remain at Miller Paving given the flexibility on the hours that respect his medical condition and the certainty of being called back each work season.
[112] Notably, the court finds that there were no health issues that arose subsequent to the 2015 heart surgery and prior to or during the earning years of 2017 to 2021.
[113] I also find that occasionally, the respondent worked informally in what the applicant described as “under the table” or “cash jobs”. Those alternate sources of employment included plowing snow during the winter months and manufacturing cigarettes on a First Nation reserve illicitly. I explicitly accept the evidence from Ms. Manary in this regard which included in her submission, that even when the respondent was “let go” and found himself in between jobs during their union, he was effective in finding sources of income through other means to support their standard of living.
[114] Upon review of the evidentiary record before me, it is clear to the court that the respondent is capable of earning more than what he earned in the years 2020 and 2021. Even after I consider the impact of the pandemic and the respondent’s bankruptcy, his income during those two years is less than half of what he appears to be capable of earning in light of his income in 2017 to 2019.
[115] Accordingly, I find the applicant has established that the respondent is not earning what he is capable of earning and is intentionally under-employed.
2) If so, is the intentional under-employment or unemployment required by virtue of the parties reasonable education or health needs?
[116] I have found that the applicant has established that the respondent is intentionally under-employed. The onus now shifts to the respondent to establish a reason for his underemployment by virtue of his reasonable education or health needs.
[117] The respondent’s position is that he is justified in working seasonally due to two main reasons:
Seasonal work at Miller Paving is guaranteed, while full time year-round work at Superior Propane may not be; and
Health concerns related to his heart.
[118] The respondent testified in chief that he has decided to limit his employment to seasonal work at Miller Paving because he believes that it would be a more reliable source of income. According to the respondent, Miller Paving would guarantee to call him back each summer to work during the paving season effectively securing approximately 5-6 months of full-time work. He indicated that although he did apply for a full-time position at Superior Propane, he declined to pursue this opportunity given the certainty that seasonal work at Miller Paving would provide.
[119] From a health perspective, the respondent’s medical challenges stem from open heart surgery in 2015 and required hospitalization in June 2022 where he complained of shortness of breath and a low heartbeat to similar symptoms experienced in September 2022, approximately two weeks prior to trial.
[120] With respect to the 2015 medical event, there is no dispute that the respondent required open heart surgery upon discovery that his arteries were clogged. While the respondent described this event as a heart attack, the applicant states that the respondent complained to the applicant that he was not feeling well and was experiencing fatigue. The applicant recommended that he seek immediate medical attention and it was at that point, doctors realized that his blood pressure was dangerously high and required immediate medical intervention.
[121] There is no objective medical evidence before me confirming that Mr. Smart suffered a heart attack. However, from the court’s perspective, it is immaterial as to whether or not he did. What is clear is that his medical condition was so dire that his arteries were blocked to the point where immediate medical intervention in the form a heart surgery was required.
[122] After heart surgery was completed, the respondent required at least six months of recovery. This significant medical event has been relied upon by the respondent to justify today a reduced income capability that would otherwise be significantly higher but for his heart condition.
[123] More recently, in the summer months leading up to this trial, the respondent was admitted to the North Bay Regional Health Centre (“NBRHC”) for a brief visit, but the evidentiary record as to when he was admitted and for how long is vague. The medical records depict an admission date of June 13, 2022, and also a discharge later that same day. However, that document appears to have been created on June 8, 2022, and the respondent testified to being admitted to the NBRHC for a week in that general time frame.
[124] According to the respondent, the reasons for his admission were due to not feeling well, having shortness of breath and experienced congestive heart failure and a low heart rate. He further testified that his lungs were inflamed and that he felt very weak and that he felt like he was going to pass out.
[125] The respondent pointed to symptoms cited in the discharge document releasing the respondent from the NBRHC after a five-day visit. Those symptoms were described in a list of instructions for Mr. Smart:
“3. If your symptoms return please seek immediate medical attention. These include: increasing shortness of breath, chest pain or pressure, dizziness or light headedness or continue low heart rates < 50 bpm.
4.We have made changes / and / or additions to your medications….
You had an echocardiogram done today. The overread from cardiology is pending…
A note was written to your employer to stay off work until assessed next week. Please refrain from driving until re-assessed next week.”
[126] That letter from Dr. Oyeniran’s office addressed to Miller Paving appears to have been written at the time of discharge, on or about June 13, 2022, stating that Mr. Smart is expected to be cleared to work upon being seen by this physician at some point between June 20-24, 2022.
[127] On June 23, 2022, Dr. Oyeniran provided a letter indicating that Mr. Smart is advised to be off work for the next 3 weeks, and that he will be re-assessed within that time frame.
[128] A further letter dated July 12, 2022 from Dr. Oyeniran confirmed that Mr. Smart was assessed in his office that day and deemed him fit to return to work on July 18, 2022. He also advised that Mr. Smart was to avoid significantly stressful labour for the next 8 weeks.
[129] On September 8, 2022, Dr. Oyeniran wrote that Mr. Smart will be off work for an additional week and reassessed on September 15, 2022 in order to determine if he is fit to return to work. No reason for ordering Mr. Smart off for an additional week is provided.
[130] On September 15, 2022, Dr. Oyeniran confirmed that Mr. Smart was reassessed by him that day. He goes on to recommend that “due to medical reasons,” Mr. Smart be placed on modified duties indefinitely. There is no explanation as to what those medical reasons were to justify this recommendation.
[131] Recent case law from this court is highly persuasive on what evidence is required from a party resisting a claim for imputation of their income based on medical reasons. In Davidson v. Patten, 2021 ONCJ 437 at paragraph 14, Madame Justice C. Curtis outlined the following information that would form a minimum standard of what is required:
i. “Diagnosis; ii. Prognosis; iii. Treatment plan (is there a treatment plan? What is it?); iv. Compliance with the treatment plan; and, v. Specific and detailed information connecting the medical condition to the ability to work (ex: this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).”
[132] With regard to the above factors, I make the following findings of fact:
[133] Diagnosis - I have reviewed each of the medical documents provided by the respondent in these proceedings. There appears to be a glaring omission in that there is a complete lack of a diagnosis of a medical condition. The records raise some suggestions that the respondent may suffer from some form of a heart condition that includes a low heart rate, but this is suggestive, at best, without detailed source documents of any type to assess the extent of a possible problem.
[134] Moreover, throughout those records, there is no actual medical assessment detailing the findings of a physician’s investigation as a result of the respondent’s brief hospitalization in June 2022 or any reason for modified duties in the respondent’s current employment as a truck driver. This includes an omission of what the results might have been for the echocardiogram or any other medical diagnostic procedures that may have been conducted by medical staff on the date of admission, throughout his hospitalization and eventual discharge from the NBRHC on or about June 13, 2022.
[135] During cross-examination, in response to a lack of independent diagnostic evidence presented, the respondent referred Ms. Sullivan to the discharge document from the NBRHC that provided instructions on what to do if the initial symptoms return.
[136] With respect, brief comments in a summary manner in a patient’s discharge sheet are grossly inadequate because they do not provide any core medical evidence related to the circumstances, diagnoses and treatment of the patient while in the care of the hospital. Discharge documents provide the concluding instructions to a patient at the end of a medical visit but can often be taken out of context when the underlying medical records explaining the initial reasons for admission and examination are omitted.
[137] Without the core medical documents that speak to when the respondent was admitted and what assessments were conducted upon admission and what those results were, I am not prepared to find on a balance of probabilities that the respondent was admitted to hospital for a week due to a heart-related concern in June 2022. What I am prepared to find is:
i) That he was admitted to the NBRHC for a brief visit on or about June 13, 2022; ii) That this visit was due to the respondent experiencing a low heart rate; iii) That an echocardiogram was conducted during his hospital visit; iv) That we do not know the results of that test; v) That currently he is not seeing a cardiologist for any heart-related follow-up.
[138] At best, the court can discern in the discharge document that Mr. Smart experienced a low heart rate on or about June 13, 2022 that resulted in his admission to hospital for a brief period of time. The remaining symptoms of chest pains or pressure, increasing shortness of breath dizziness or lightheadedness are a product of self-reporting, with no objective confirmation of their existence.
[139] Combined with this evidentiary gap and the credibility concerns I have with respect to the respondent, I decline to find that he experienced any other symptoms requiring hospitalization in June 2022.
[140] Without a diagnosis, foundational medical records documenting what inquiries were made by medical staff and specific details regarding Mr. Smart’s presenting condition upon admission, the court is deprived of the opportunity to make its own independent assessment of the strength of this medical evidence.
[141] As indicated above, I also note that there is no evidence before me that the respondent has received or is actively being treated by a heart specialist or cardiologist at this current time. I have no evidence to conclude that his current treating physician is a cardiologist or any other medical professional with specialized training to treat a patient with serious heart issues. The evidence from Mr. Smart was that Dr. Oyeniran was a new doctor to him as of June 2022 because he did not have a doctor prior to then. What I can infer from this is that his purported heart condition, if any, is not serious enough to require the assistance or treatment from a cardiologist or any other medical specialist with specific training in heart health.
[142] Without knowing what the diagnosis is, if any, and to what extent of seriousness it might entail, there is no ability for the court to weigh the reasonableness of Dr. Oyeniran’s recommendation for modified duties on an indefinite basis for a medical condition that has not been clearly identified.
[143] Having not been presented with a diagnosis, I now turn to the next step of the medical evidence required by a party in resisting an imputation of income.
[144] Prognosis – Without a diagnosis, I am left to speculate what a prognosis might be and for an unknown condition. For the same reasons noted above, the court cannot conduct its own inquiry to ascertain a prognosis.
[145] Treatment Plan – Due to the evidentiary gap that would speak to a diagnosis, there is no evidence of a treatment plan included in any detail in the medical records submitted by the respondent. There is reference to certain medications in the discharge document with general comments to monitor his weight, but there is no evidentiary connection as to what those medications and instructions are intended to treat.
[146] Compliance with the Treatment Plan – This evidence is also lacking in the respondent’s evidence given my above findings.
[147] Specific and Detailed information connecting the medical condition to the ability to work – While Dr. Oyeniran makes a recommendation for Mr. Smart to be placed on modified duties for an indefinite period, we are left to speculate as to why and for what medical condition (see his letter dated Sept. 15, 2022).
[148] In the respondent’s testimony, he expanded on the nature of the work that he could no longer perform while on modified duties. This essentially came down to a prohibition on physically demanding labour. There does not appear to be any medical reason preventing the respondent from driving a truck as an occupation provided that it would not involve in what Dr. Oyeniran described as “significantly stressful physical labour”.
[149] A vague, general assertion from Dr. Oyeniran that Mr. Smart should be placed on modified duties indefinitely for “medical reasons” is unhelpful and prevents the court from properly adjudicating this evidence in the context of this trial. The court is left to speculate as to what the specific and detailed connection might be from the purported medical condition suffered and the respondent’s ability to work. The totality of the medical evidence presented by Mr. Smart is analogous to only sharing the end of a novel, but without including the introduction, main chapters and the conclusion for the reader to understand and assess.
[150] When I consider the totality of the medical evidence presented by Mr. Smart, I am not able to make any findings of fact to support a medical explanation for him to not work year-round in one of his experienced fields of employment.
[151] What is clear from the totality of the medical documents presented by the respondent, is that from a health perspective, nothing prevents the respondent from continuing to work in his qualified field of truck driving on a full-time, year-round basis.
[152] The modified duties the respondent has been placed on by Miller Paving as a result of Dr. Oyeniran’s recommendation does not detract away from this factual reality.
[153] The respondent has taken the position that he cannot earn more than a seasonal truck driver with Miller Paving, earning somewhere in the neighbourhood of $41,137.00 to $44,819.00. He had the opportunity to provide this court with comprehensive medical evidence to justify this significant reduction in his earning capacity in the face of gradual and significant increases in his income which peaked in 2019 at $92,718.00.
[154] Regrettably, the evidence presented to the court in furtherance of his legal position in this trial is minimal and does little to advance his argument. I find that the respondent’s intentional under employment or unemployment for half a year is not reasonably acceptable on the evidentiary record before me.
[155] This court finds that Nigel Smart is capable of earning significantly more than what he has submitted to be his income in the years 2020 and 2021. As a result, the court is now tasked with the exercise of imputing an appropriate income to the respondent.
3) If not, what income is appropriately imputed?
[156] Although the respondent has conceded entitlement on a compensatory and non-compensatory basis, a careful review of these principles and the evidence that support entitlement will directly inform the appropriate quantum to be determined.
Compensatory Support
[157] Entitlement to compensatory support was explained by Chappel J. of the Superior Court in Thompson v. Thompson, 2013 ONSC 5500 at paras. 55–59:
“ii. Compensatory Support
The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.
Compensatory support claims arise most typically in situations where one spouses suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party’s income.”
[158] In the case at bar, I accept that the parties decided collectively for the applicant to remain home to care for their daughter Janie, prior to her birth. The respondent disputes that this meant that the applicant would not seek any employment at all and asserts that the applicant was expected to seek part time employment even while she was at home full time caring for Janie. Regardless of the specific nature of this mutual understanding at the time of their marriage in 1996, the reality was that one of the parents had to primarily spend most of their time at home to care for Janie, and that parent was the applicant mother.
[159] In doing so, she opened the door for the respondent to earn a reasonable income which permitted him to develop training and experience in the fields of manufacturing, construction, and truck driving. Because the applicant mother made the decision to stay home, take on the vast majority of domestic duties and care for their special needs child, this enabled the respondent to apply himself as a capable employee and develop his skills and experience in various sectors.
[160] No one could have predicted that Janie would have to face the challenges of life with a developmental disability. As parents, I find that the applicant mother was the one who spent the vast majority of time and effort maintaining the upkeep of the family home and supporting the demands of their special needs child and throughout this child’s formative years on to her adulthood today. It bears repeating that the applicant mother’s responsibilities to Janie have not ended and is expected to continue on an indeterminate basis given her disability.
[161] The evidence strongly supports that Janie’s cognitive ability is in the extremely low range. She functions within the first percentile of cognitive ability and psychological and medical documentation clearly support a finding that Janie is functioning within the extremely low range developmental disability, is unable to maintain financial skills, has no executive functioning, and will need permanent guidance for support and life skills.
[162] Quite wisely, Mr. Hamilton on behalf of the respondent has conceded that Janie remains in the care of the applicant mother as a result of her disability and that this has prevented her from withdrawing from the charge of her parents.
[163] Based on the evidence, there is no dispute between the parties that section 33(9)(l)(iii) of the Family Law Act is applicable as a relevant factor in determining an appropriate quantum of spousal support for the applicant mother.
[164] I accept the testimony of the applicant that she was the primary caregiver for Janie while the respondent was employed outside the home at various times during their marriage. The letter of the former teacher from Lo-Ellen Park Secondary School supports the commitment demonstrated by the applicant in supporting Janie throughout her formative years while at that school.
[165] It is undisputed that the applicant was a devoted volunteer then and incorporated service to the school community and parental support for Janie with a view of maximizing on their ability to meet the developmental needs of their child. The support the applicant has provided for Janie continues to this day. At 24 years old, diagnosed with a global developmental disability at a young age, Janie will not gain her own independence and well require the support of the applicant for the rest of her life.
[166] This responsibility that falls on the shoulders of the applicant for an indeterminate period of time should be given full recognition inconsideration of what would be a fair and balanced spousal support amount going forward.
[167] The sacrifices and benefits conferred upon the respondent by the applicant, in accordance with the principles enunciated in the Thompson (supra), must reflect the degree of interdependency the two parties shared during their entire period of cohabitation.
[168] Currently, the applicant's ability to earn a living wage and support herself and her special needs daughter is significantly compromised in light of the cumulative impact of all of these sacrifices and contributions she made from within the home for more than 26 years. There is a direct connection to her position of economic disadvantage today as a homemaker due to her lack of work experience and dependency upon the respondent for support throughout the course of their marriage.
[169] I do not accept that the respondent contributed to the domestic duties of their household in any meaningful way. While he might have contributed from time to time taking care of Janie and helping around the house with chores, the essence of the evidence before me on this issue points to the applicant being the primary contributor to these domestic duties as a full-time homemaker for the duration of their 22-year marriage.
[170] To the extent the respondent claims otherwise, I outright reject his evidence in this regard.
[171] In consideration of all of these factors, I conclude that the totality of the evidentiary record supports a strong compensatory basis for spousal support in favor of the applicant mother.
Non-Compensatory Support (needs-based)
[172] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.
[173] Some of the jobs the applicant possessed over the years was limited to seasonal work at a lodge, a bank teller at CIBC, and a clerk at convenience store.
[174] Geographically, the applicant and Janie reside in the community of Monetville, in rural northern Ontario. This is a predominantly French-Canadian community located on the outskirts of the Territorial District of Sudbury. She has deposed in her affidavit and affirmed in her testimony that her lack of French language skills has proven to be a barrier in her efforts to secure meaningful employment in this bilingual community. Adding to the employment barriers is the factual reality that Monetville is a small town that thrives on tourism primarily through seasonal opportunities. There were no notable contradictions that came out of Mr. Hamilton's cross examination of these facts asserted by the applicant and on a balance of probabilities, I accept them to be true.
[175] More specifically, the applicant testified that she did have a potential career in banking at CIBC where she worked for approximately 5 years. However, she has not been able to further that career in banking due to a lack of French language skills in the bilingual community of Monetville. The applicant further testified that she applied for a job at her local post office in that same community but again faced barriers due to her lack of French skills as advised by the post office staff when she inquired. It is clear to me in the applicant’s testimony, affidavits, financial statements and certificates of financial disclosure, that she has made reasonable efforts to become economically self-sufficient.
[176] Currently, she cleans homes part-time but cannot extend this to a full-time job due to the onset of osteoarthritis as documented in the supporting medical records attached as exhibits to her affidavits. This medical condition makes it physically challenging for her to find jobs that would require physical exertion or movement for an extended period of time.
[177] I find that the limited nature of the applicant’s work experience outside the home demonstrates that her current marketability as a unilingual 60-year-old woman with osteoarthritis in a bilingual rural community is quite low.
[178] I remind myself that the applicant and her special needs daughter find themselves in this French-Canadian rural community in northern Ontario because this was a decision jointly made with the respondent at a time when they cohabitated together as a family prior to separation. The timing of that mutual decision to move north is important because it was a by-product of a partnership where the applicant relied economically upon the respondent to provide for her and their daughter in relocating to a northern community where she has no firmly established network of family or friends.
[179] While their relationship is no more as of March 2019, the situation of economic dependency remains.
[180] Additionally, the financial statements of the applicant confirms that both her and her daughter do not currently have the funds to move to another community outside of Monetville where additional employment opportunities might be made available.
[181] In light of the medical and vocational realities facing the applicant, her continuing responsibilities to care for an adult special needs child, combined with the evidence of economic hardship both in viva voce and affidavit form, it is clear to me that the applicant’s need for spousal support is at the higher end.
[182] As indicated earlier, on the second day of this trial, counsel for the respondent conceded the issue of spousal support entitlement on both a compensatory and non-compensatory basis. He also conceded that the term of entitlement is to be indefinite in recognition of the 27 years the parties cohabitated together and 22 years of marriage to the point of their separation in March of 2019. The Rule of 65 applies in this case.
[183] Accordingly, the remaining issue that must be decided in this trial is what the appropriate quantum of spousal support should be going forward on both a compensatory and non-compensatory basis.
12: WHAT IS THE APPROPRIATE AMOUNT OF SPOUSAL SUPPORT?
[184] In Grass v. Hropak, 2020 ONSC 7803 at para. 79, Justice M. Kraft of the Superior Court of Justice applied a 3-year average in a case where the payor’s income fluctuated from year to year. In doing so, Justice Kraft’s reasoning was as follows:
“ Given the significant fluctuation in a party's income from year to year, a three-year average is often a sensible approach to use to determine a payor's income. The husband would get the benefit of paying child and spousal support to the wife on an income level that was below what he actually earned in 2019. However, he might have to pay more than he would otherwise have had. The husband should have arranged his financial affairs at the time the Gilmore Consent Order was made such that he would be able to pay the temporary child and spousal support in full at times when he felt that his cash flow from his employment did not comfortably permit him to do it.”
[185] In the years preceding this current application for spousal support, the respondent proved a successful ability to earn a reasonable income as a truck driver. The applicant is seeking to have this court average out three years of the respondent’s income from the period 2017 to 2019 which would account for the time period leading up to the point of separation. This would result in an imputed annual income of $79,154.33. She also submits that her income should be imputed at $19,813.00 and that an appropriate monthly payment for spousal support should be $1947 dollars being the mid-range according to the spousal support advisory guidelines (SSAG).
[186] The Respondent is seeking to have his income imputed at $63,275 and the applicant’s income to be deemed to be $17,000. However, in oral argument, Mr. Hamilton submitted that an absolute minimum income of $20,000 should be imputed for the Applicant. He submits that $720 per month of spousal support payable by the respondent would be appropriate.
[187] In consideration of the numerous factors listed in section 33(9) and the purposes of a spousal support order in 33(8) of the Family Law Act, I have considered the totality of the evidentiary record before me in both the filings and testimony at trial.
[188] As I have concluded earlier in my reasons, the applicant’s claim for compensatory and non-compensatory spousal support is strong in both respects. The parties separated in March 2019 after cohabitating together for almost 27 years and during the course of a marriage lasting 22½ years. I have considered their standard of living during their union. The applicant’s need for support is strong, her employability low and she continues to care for their adult special needs daughter.
[189] The respondent was made aware of the applicant’s intention to seek spousal support as early as October 2020 and this application commenced on November 13, 2020, some 26 months ago. He is currently 57 years old and has a history of a heart condition but currently has no reliable evidence of recurrent heart-related symptoms after surgery in 2015. I have found that he is capable of earning a significantly higher income than he claims if he chooses to work year-round, as opposed to voluntarily limiting himself to seasonal work for 5 to 6 months a year for no valid health reason.
[190] However, although the specific nature of the respondent’s current health does not point to an imminent medical concern, the amount he must pay must be balanced with a general recommendation from Dr. Oyeniran that requires modified duties on an indefinite basis that prohibits any strenuous activity in the future. I do not believe that the occupation of a truck driver offends this general limitation as evidenced through the respondent’s current employment at Miller Paving and lack of any medical documentation prohibiting him from driving a truck year-round.
[191] The court finds $71,434 to be a minimum earnable income for the respondent. On the evidence before me, he is fully capable of earning significantly more than the amount imputed herein. As explained above, this number was achieved by taking the average incomes of 2018, 2019, and 2020. However, it was open to the court to ignore the respondent’s income in 2020 as being unrepresentative of his true earning capacity given the evidence of intentional under-employment in his choice to decline year-round employment that was offered to him by Superior Propane or any other year-round employment. The court finds that the respondent has not made reasonable efforts to seek full-time, year-round employment today and is intentionally under-employed.
[192] It would have been equally reasonable to attribute the respondent’s income in 2017 as opposed to 2020 as part of the three-year average. However, in light of what will be a significant amount of arrears owed in spousal support to the applicant, I have decided to exercise my discretion to impute a minimum income amount for the respondent of $71,434, to permit him to pay as much as possible towards these outstanding arrears.
[193] In light of the respondent’s current age and what I perceive to be a fair illustration of his earning capacity, the court finds that a reasonable imputation of his income would be an average of the years 2018, 2019 and 2020, despite evidence of intentional under-employment in the year 2020. This three-year averaging is consistent with the recommendation of Justice M. Kraft in Grass v. Hropak.
[194] Accordingly, the Court imputes the respondent’s income to be $71,434.00.
[195] With respect to the applicant’s income, the evidence filed in this trial provides us with the applicant’s income from 2017 to 2021:
Income from Applicant 2017: $0 2018: $12,532.00 2019: $23,076.00 2020: $23,830.00 2021: $20,156.00 TOTAL: $79,594.00
[196] Similar to the parameters used to impute the respondent’s income, I will calculate the applicant’s average income over the course of three years. In the years that the applicant earned an income from 2018, 2019 and 2020, the average amounts to $19,813.00. This will be the amount of income imputed to the applicant.
[197] For clarity, the results of the calculation applied in the Divorcemate Software that I find to be the appropriate range of monthly spousal support payable are as follows:
Low Range - $1452 Mid Range - $1694 High Range - $1936
13: DETERMINING THE RANGE OF SPOUSAL SUPPORT
[198] Certain factors will favour a support order at the higher end of the range in accordance with the appropriate income applied to the SSAG: Mason v. Mason, 2016 ONCA 625 at paras. 199 – 201:
“[199] The Spousal Support Advisory Guidelines: The Revised User's Guide21 provides that courts should avoid the tendency to "default" to the mid-range amount of spousal support. Section 9 of the 2016 Revised User's Guide explicitly states, "[t]he mid-point of the SSAG ranges for amount should NOT be treated as the default outcome." In determining the appropriate quantum of support within the range, a court is required to consider the support factors and objectives found in the Divorce Act and the Family Law Act. The SSAGs also provide a number of factors to consider while choosing a location within the range, including the strength of the recipient's compensatory claim, the recipient's need, property division and debts, and the payor's needs and ability to pay.
[200] Section 9.1 of the SSAGs provide, "[a] strong compensatory claim will be a factor that favours a support award at the higher end of the ranges both for amount and duration." The wife has a strong compensatory claim. The parties cohabited for at least 20 years. During their marriage, the wife worked with the husband to establish a successful business. Post-separation, the wife is no longer in a position to work in and benefit directly from the business. She suffered a significant disadvantage as a result of the breakdown of the marriage: Divorce Act, s.15.2(6)(a); Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 41; see also Racco v. Racco, 2014 ONCA 330, 44 R.F.L. (7th) 348, at para. 24.
[201] The issue of need is measured against the parties' marital standard of living. The wife will be able to convert some of her assets from equalization into income, but it will not compare to that produced by the business. As the trial judge stated, self-sufficiency during the wife's working life, measured against the marital standard of living, will be an elusive goal. On the whole, the wife's claim to support suggests a result towards the high end of the range.”
[199] The Court of Appeal in Berger v. Berger, 2016 ONCA 884 affirmed the following relevant principles when it comes to determining the appropriate range:
“[120] Section 9.2 of the SSAGs explains how a recipient's needs impact an analysis: "In a case where the recipient has limited income and/or earning capacity, because of age or other circumstances, the recipient's needs may push an award to the higher end of the ranges for amount and duration."”
[122] Section 9.4 of the SSAGs addresses the payor's needs and ability to pay. When applying the "without child support" formula (as in this case), it is important to look at the net income consequences of any particular amount of spousal support, especially for the payor. This is critical in longer marriages, where the formula percentages are higher.”
[200] I have already found that the applicant has a strong compensatory claim and an established need that is a product of her current age, lack of employability in a rural French-Canadian community, osteoarthritis, role as a homemaker who took charge of raising their daughter with special needs and dependency on the respondent as the sole bread winner for almost 27 years.
[201] She also maintains the indefinite responsibility to care for Janie, their disabled adult daughter who is unable by reason of disability to withdraw from the charge of her mother, pursuant to s. 33(9)(l)(iii) of the Family Law Act.
[202] I conclude that the totality of evidence strongly supports a finding of spousal support payable at the high range. I have also considered the relevant sections of the spousal support advisory guidelines that require me to consider the respondent’s ability to pay spousal support and the potential impact on him to meet his monthly obligations.
[203] Upon careful review of the respondent’s financial information, and in light of the credibility concerns identified in these proceedings, I am of the view that little weight can be attributed to the accuracy of his financial circumstances and ability to pay as he presented in this trial. Put another way, the financial information relied on by the respondent does not paint an accurate picture of his current financial situation and his ability to pay spousal support to the applicant. I find that his ability to pay is significantly more than what he has represented to this court. I do believe that in the event the respondent meets his obligations to earn an income true to what he is capable of doing, that he should have every ability to pay spousal support to the applicant in the designated amount.
[204] Accordingly, the court imputes an annual income to the respondent in the amount of $71,434. The applicant's income is imputed to be $19,813.00. Based upon the spousal support advisory guidelines, the respondent is ordered to pay the applicant $1936.00 per month which is reflective of the high range for spousal support on an indefinite basis.
14: RETROACTIVE SPOUSAL SUPPORT
[205] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, at para. 207, applied the D.B.S. factors utilized to determine retroactive child support to be considered in the context of determining whether to make a retroactive spousal support. Justice Cromwell, delivering the judgment for the majority, stated:
“While D.B.S. was concerned with child support as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.”
[206] The D.B.S. factors applicable in determining retroactive spousal support are:
a) Whether there exists a reasonable excuse for why support was not sought earlier; b) The conduct of the payor parent (blameworthy conduct); c) The circumstances of the child (support recipient); and d) The hardship that would be occasioned by a retroactive award.
[207] There is appellate-level jurisprudence that states that the general commencement date for retroactive spousal support, is the date of effective notice. Justice Lang for the Court of Appeal in MacKinnon v. MacKinnon had this to say with respect to the commencement date of retroactive spousal support:
“Absent any unusual reason arising from the factors and objectives set out in the Divorce Act, an applicant who requests financial disclosure in preparation for negotiation or litigation of a support claim, and who then proceeds reasonably to a disposition of the claim, presumptively is entitled to prospective support from the date of notice that a support claim is being pursued.” [2]
[208] This was affirmed by Justice Cromwell in Kerr v. Baranow, 2011 SCC 10, where the Supreme Court of Canada affirmed the general rule for the commencement of retroactive spousal support as the date of effective notice: [3]
“In D.B.S., Bastarache J. referred to the date of effective notice as the “general rule” and “default option” for the choice of effective date of the order. The date of the initiation of proceedings for spousal support has been described by the Court of Appeal as the “usual commencement date”, absent a reason not to make the order effective as of that date. While in my view, the decision to order support for a period before the date of the order should be the product of the exercise of judicial discretion in light of the particular circumstances, the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in how the relevant considerations are weighed.”
[209] A court must take into consideration any credit due to the payor for amounts contributed under a prior arrangement. As stated by the Court of Appeal for Newfoundland and Labrador in Shears v. Gould, [2014] N.J. No. 3 (NLCA), at para. 14., in the context of retroactive child support:
“The law contemplates that informal payments by a payor parent should be considered as part of the payor parent's conduct in crafting a retroactive child support order and, as such, may factor into the quantum of the ultimate award.”
[210] In the case at bar, the applicant has submitted that she is seeking retroactive support to commence as of the date of her application as opposed to the date of separation. Effective notice was provided to the respondent in writing on October 26, 2020, and the application was filed on November 13, 2020.
[211] The respondent is seeking a commencement date of the date of this order, which would be today, January 19, 2023. I have considered each of the D.B.S. factors and make the following findings:
[212] Reasonable Excuse for any delay in seeking support - The evidentiary record does not reveal any material delay attributable to the applicant in seeking spousal support from the point of the application being filed with this court to today. The applicant made it clear in a letter dated October 26, 2020, that it was her intention to seek spousal support and in furtherance of this, sought financial disclosure from the respondent, to which he refused. A formal application for spousal support initiating these proceedings was filed on November 13, 2020.
[213] Prior to this trial commencing in September 2023, there were two interim orders for spousal support made. On July 20, 2021, the applicant brought a motion for temporary spousal support but due to time constraints with the court that day and through no fault of either party, a temporary without prejudice order was agreed to by the parties. Justice Buttazzoni ordered the respondent to pay spousal support to the applicant in the amount of $568.00 commencing August 1, 2021. The temporary motion was adjourned and heard on March 14, 2022. After full argument before Justice Klein, his Honour ordered the respondent to pay spousal support to the applicant in the amount of $720.00 per month commencing April 1, 2022. This was based upon the respondent’s imputed income of $63,275.00 and the applicant's income of $17,000 per annum. On April 14th, 2022, the matter was scheduled for the running trial list in September 2022. In consideration of the significant court backlog we are experiencing, the applicant has reasonably pursued spousal support entitlement and to the extent there were any delays after she filed her application, they are not through any fault of her own.
[214] The presence or absence of blameworthy conduct by the payor – The applicant has not yet received spousal support as ordered by Justice Klein in the temporary order of March 14, 2022. However, the lack of spousal support payments for the applicant to date is not due to a lack of effort on the part of the respondent. Exhibit 20 is a letter from the Family Responsibility Office (“FRO”) dated February 15, 2022, addressed to the respondent. It indicates that FRO is declining to enforce the support order that was previously made by Justice Klein. I accept the respondent’s explanation that he was willing to comply with Justice Klein's order and expected to do so with FRO enforcing these payments. It appears that due to a combination of administrative errors with the FRO and lost correspondence during the pandemic as explained by the applicant, she has not received any spousal support payments from the respondent.
[215] I do not attribute this as blameworthy conduct on the respondent given these administrative errors beyond his control.
[216] As I have found in my reasons, the respondent has demonstrated a pattern of withholding relevant financial information from the applicant and minimizing his true earning capacity. He has also misrepresented the nature of a relationship with a romantic partner to further minimize his ability to pay spousal support to the applicant. I rejected his explanation for the missing $65,000.00 that both parties are entitled to benefit from that remains unaccounted for due to litigation with a former business partner with Bomb Energy Drink. I also acknowledge the respondent’s communication in the fall of 2020 to the applicant through their daughter in text messages sent to them upon realizing that an application for spousal support was imminent. Those messages speak for themselves.
[217] The respondent himself made offers for monthly spousal support that were in my view, grossly inadequate and indicative of his inability to appreciate his legal obligations to provide indefinite spousal support to the applicant.
[218] Assertions were made by him to detract away from his own blameworthiness by attributing gambling to the applicant through bingo as a cause for their financial difficulties throughout the course of their marriage. I explicitly reject those comments made by the respondent. Earlier in my reasons, I have found the respondent’s credibility to be highly problematic and this court does not accept his evidence to be reliable or credible in these proceedings.
[219] The circumstances of the support recipient - I have already found in my reasons that the applicant has made a strong case for compensatory and non-compensatory spousal support. She is currently surviving on a low income by cleaning houses on a part time basis, to the extent her health permits. She also has the indefinite responsibility to take care of their adult disabled daughter. I need not repeat them here but remind myself that the applicant’s circumstances which demonstrate a strong case for support, played an important role in attributing spousal support payable at the high range of the advisory guidelines.
[220] Any hardship to the payor or occasioned by a retroactive award - As indicated above, I have found that the respondent is fully capable of earning a significantly higher income than what he is currently earning. His choice to work seasonally amounting to only five or six months a year and relying on unemployment insurance for the balance of the year is purely voluntary and not attributed to any health concerns.
[221] The prior income tax records from 2017 to 2019 prove the respondent capable of earning an average of $79,154.00. Although I have imputed his income to be the lower average of $71,434.00, I have found him to be an experienced and capable truck driver who has the ability to earn significantly more than this amount, if he chooses. This is a minimum income that he can earn provided that he chooses to work year-round in this particular occupation.
[222] As a result, while I understand a retroactive award to November 2020 would be significant, a monthly payment towards these arrears on top of the support entitlement can make full compensation to the applicant achievable and fully within his control.
[223] Furthermore, I have found that the respondent lives with two other roommates and pays significantly less rent than the applicant and their disabled daughter. The respondent benefits from this common household with Catherine Mercier and a second roommate effectively alleviating him from additional household expenses on a monthly basis.
[224] Ultimately, on the totality of the record in this trial, there is no evidence of hardship that I can find for the respondent as a result of a retroactive award dating back to November 2020 when this application was filed.
[225] I find that it is completely appropriate to commence retroactive spousal support on the first day of the month of this application, November 1, 2020, and order this to be the case.
15: CONCLUSION
[226] A final order shall go as follows:
Commencing on February 1, 2023, and continuing every month thereafter, the respondent shall indefinitely provide the applicant with ongoing spousal support, on a compensatory and non-compensatory basis, in the monthly amount of $1936.00 per month. This monthly spousal support award is based on the following: A finding that the respondent has been willfully underemployed since at least 2020; a gross annual income of $71,434.00 being imputed to the respondent, which represents his average gross annual income for the years 2018 to and including 2020; a gross annual income of $19,813.00 being imputed to the applicant; the high-range of the Spousal Support Advisory Guidelines; and a finding that subparagraph 33(9)(l)(iii) of the Family Law Act applies in this matter due to the fact that the parties have a disabled adult daughter, who is under the applicant’s primary care, for whom the Respondent is not paying any child support.
The amount of retroactive spousal support owed by the respondent to the applicant for the time period of November 1, 2020, to January 31, 2023, shall be fixed at $50,336.00. The respondent shall be given credit for all spousal support paid, if any, by him to the applicant through the Family Responsibility Office during this time period. This monthly spousal support award is based on the same considerations as ongoing spousal support, as well as a finding that the respondent was formally aware, as early as October of 2020, of the applicant’s desire to have the Respondent financially support her and their disabled adult daughter.
The respondent shall have 30 days from the date of this order to provide the applicant, through the Family Responsibility Office, with a lump sum payment of $50,336.00, which represents the aforementioned fixed retroactive spousal support award, failing which, commencing on March 1, 2023, and continuing every month thereafter, the respondent shall provide the applicant with $500.00 per month, in addition to ongoing spousal support, until the retroactive spousal support award is paid in full.
All spousal support payments shall be increased annually on the anniversary date of this Order by the percentage contained in the Consumer Price Index for Canada for prices of all items since the same month for the previous year, as published by Statistics Canada.
Unless this Order is withdrawn from the Director’s Office at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This Order bears interest at the post-judgment interest rate of 2% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
If the parties are unable to agree on costs, the applicant may make written submissions as to costs within 30 days of the release of this Order. The respondent will have 10 days after the receipt of the applicant’s submissions to respond in writing.
Released: January 19, 2023 Signed: Justice Leonard Kim
[1] Drygala v. Pauli, [2002] O.J. No. 3731 (C.A.).
[2] MacKinnon v. MacKinnon, [2005] O.J. No. 1552 (ONCA) at para. 22.
[3] Kerr v. Baranow, 2011 SCC 10 at para. 211.