ONTARIO COURT OF JUSTICE

CITATION: M.I.M. v. C.M., 2023 ONCJ 453

DATE: October 10, 2023

COURT FILE No.: Brampton1080-17

BETWEEN:

M.I.M.

Applicant

— AND —

C.M.

Respondent

Before Justice A.W.J. Sullivan

Heard on August 23, 24, 2023

Reasons for Judgment released on October 10, 2023

Ms. M.I.M. ..................................................................................................... on her own behalf

Mr. C.M. ......................................................................................................... on his own behalf

SULLIVAN, J

[1] This trial is about a Motion to Change commenced by Mr. C.M. to the child and spousal support terms of a Separation Agreement (the agreement) dated July 27, 2017, between Ms. M.I.M., now age 55 and Mr. C.M, now age 60.

[2] The trial was held over two days via Zoom on August 23, 24, 2023 as Mr. C.M. resides in Texas, USA. Both represented themselves at trial. Their affidavits for trial where prepared when they had counsel.

[3] Both parties had counsel in negotiating the agreement and when signing the same.

[4] Ms. M.I.M. and Mr. C.M. married on June 30, 1990, and separated December 2016.

[5] The parties have 3 children L.N.M. born […],1999, and M.H.M. born […], 2001, and the oldest child A.M. who is an adult and not a subject of this proceeding.

[6] The separation Agreement provided child support for their two youngest children in the amount of $1896.00 and spousal support in the amount of $3,032.00 per month.

[7] The agreement states that Ms. M.I.M.’s income is 0- zero for the purposes of spousal support and Mr. C.M.’s income was $140,000.00.

[8] The agreement has an annual disclosure clause of the parties’ incomes and section 35 c - indicates that a material change shall not be the wife earning income up to $30,000.00 and the husband earning income up to $170,000.00.

[9] Clause 35 d states that a material change would be when any child is no longer entitled to support.

[10] In his pleadings Mr. C.M. states that the main reason that he commenced this motion to change was that his son L.N.M. graduated from High School in 2018 and no information was provided to him about what this son was doing re school or work.

[11] Mr. C.M. also notes that he commenced this proceeding as he moved to Texas, USA on June 27, 2019, to live with his current wife.

[12] Mr. C.M. does not seek to terminate spousal support but to set payments based on his current income, although at trial some of his evidence went to termination or a reduction based on Ms. M.I.M.’s abilities.

[13] I informed the parties the trial issue regarding spousal support was not termination given the pleadings, but the amount based on what is decided regarding Mr. C.M.’s income level and Ms. M.I.M.’s situation and current and history of the marriage.

[14] At trial the parties conceded that their son L.N.M. had been in post-secondary studies up to April 2022 when this ended making this child no longer eligible for child support after April 2022.

[15] The other issue at trial was about the child M.H.M.’s post-secondary studies and the termination date for child support.

[16] I heard at trial that apparently, Mr. C.M. has reduced his overall support payments to about $3,000.00 per month some time back. He claims that he has however kept up his payments which was contested by Ms. M.I.M. I noted that I would not be attempting to calculate an exact number of arrears if any owed this would fall to FRO based on the outcome of this decision.

[17] I was not given a recent FRO Director’s statement to evaluate the amount and frequency of Mr. C.M. payments. I did inform the parties that arrears owing will be calculated by FRO authorities when this decision is sent to them and therefore it will be important for each of them to gather this information from FRO for their record keeping and to know their ongoing rights and responsibilities.

[18] Ms. M.I.M. opposed any reduction to spousal support and argued that Mr. C.M. voluntarily left a higher paying job in Canada to move to the USA only to be working at a lower paying job earning $100,000.00 Canadian.

[19] Mr. C.M. advanced his evidence via his affidavit of February 11, 2022, and financial statements dated January 8, 2022.

[20] He was questioned by Ms. M.I.M. on this evidence and the court asked questions of both parties when they testified to assist both self-represented persons in providing clarification of the issues and evidence to support the same.

[21] Ms. M.I.M. filed 2 affidavits November 26, 2021 and February 16, 2022, and her financial statements 5 in total Ex 7 to this trial.

[22] She was questioned by Mr. C.M. regarding her testimony.

[23] Mr. C.M. did suggest that Ms. M.I.M. could work more than she is currently.

[24] Her testimony is that in September 2020 she was employed as a 100% commission employee for a consulting firm as a recruiter and earned next to nothing as the pandemic set in. In 2020 she started working for a consulting firm recruiting sales reps but earned over all in 2020 $36,000.00 based on her December 21 financial statement.

[25] Just prior to this in November 2019 Ms. M.I.M. attempted to operate a catering company that she started, Mad Mary’s Catering Co, but this faltered due to her health issues noted below and the start of the pandemic.

[26] Presently Ms. M.I.M. is employed working for another company KSG full time earning about $ 50,000.00.

[27] She is in remissions regarding her cancer has some medical appointments that require her to take some time from work 2 to 3 times per year. She suggested that she has stress from this litigation and does have overall difficulties with sitting for long periods which causes some difficulties in movement, walk after a prolong period of sitting. She does attend an Osteopath for this issue.

Issue re M.H.M. and his education

[28] M.H.M. graduated from high school in 2019. He started an Auto Technician apprenticeship program via Mohawk College and completed the program in the spring of 2023.

[29] I did hear that his timeline to complete the program was extended as M.H.M. did not receive a Covid vaccination and as such had to wait for the program to relax this requirement in order to attend to complete a portion of the program which he just completed. The time in question was about 6 months longer than it should have been. This will be considered in the reasons below.

[30] I heard the hours of the program as offered were just a few hours for a few days per week and that he has worked earning about $20,000.00 and this employment is linked to the Mohawk auto program. It is not an independent job in the open market earning an industrial wage as a mechanic.

[31] Both M.H.M. and L.N.M. continue to reside with their mother. M.H.M. pays for his own car and transportation and tools for his program. He at this point has not contributed to the household.

[32] L.N.M. contributes $400 per month towards his room and board.

[33] I was provided with receipts for unpaid section 7 costs for the above children beyond tuition and school costs which the parties assisted each child through RESP funds that were established years ago and eventually used to assist with some of the boys’ school costs. This was an issue that was present at the start of this file but eventually resolved.

Law re Material change:

[34] Has the issue of material change been met in the facts of this proceeding?

[35] Material change is considered one:

A material change is a change such that, if known at the time, would have resulted in different terms of an agreement. The sufficiency of the change must be defined in regard to the overall financial situation of the parties. The fact that a change was objectively foreseeable does not necessarily mean that it was contemplated at the time of the original agreement see L.G. v G.B. [ 1995] 3 S.C.R.

Justice L’Heureux-Dube in B(G) c. G(L), 1995 CanLII 65 (SCC), 15 R.F.L. (4th) 201(S.C.C.) stated:

I believe it is artificial for a court to restrict its analysis to a change which has justified variation. Moreover, while a variation is neither an appeal nor a trial de novo, where the alleged change or changes are such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties … is in order.

[36] Also see A termination of child support can create material change for spousal support increase. Ferguson v Ferguson, 2008 CarswellOnt 1676 (Sup Ct.).

[37] I find that there has been a material change in this matter with the children no longer being eligible for child support and that the parties had not contemplated Mr. C.M. voluntarily ending his employment here in Ontario, Canada nor his move to the USA where he is employed but for less income.

[38] The issue of his remarriage is not in itself significant but is to some degree relevant re his overall. Mr. C.M. did not disclose his household income when completing his financial statement and as such what resources he may indirectly benefit from is unclear in the evidence I am asked to consider in this matter.

[39] On the issue of his current wife’s income Mr. C.M. when asked at trial declined to answer what that is but did state that the household budget costs, as set out in his Financial Statement, were half, e.g., rent/mortgage, food, utilities and so forth.

[40] The fact that the children now have completed their studies was contemplated to happen when the parties signed off on the agreement with ILA. This event terminates child support and I set out the dates and reasons for the timing below as well as Mr. C.M.’s income up to the date of termination from which to set the level of payments for both child and spousal.

[41] The issue remaining is that of the amount that Mr. C.M. should pay for spousal support.

[42] As noted above termination of spousal support was not an issue pled in this matter. The issue is what amount should be paid ongoing and what level of income for Mr. C.M. should be used in this regard.

[43] Mr. C.M. argues his current income from the USA that is 100,000.00 Canadian should be used to set his payment obligations.

[44] Ms. M.I.M. in her affidavit evidence argues that at the minimum Mr. C.M. should be paying spousal support and, what he owes for the balance of child support, based on his income he had before leaving for the USA or as set out in the agreement being $140,000.00.

[45] She also noted the following:

• Mr. C.M. had an increase in income that was not disclosed as it should have annually: this was.

• 2018 - $212,184.00

• 2019 - $196,798.00 as per Mr. C.M.’s disclosure via litigation of his NOAs.

[46] Ms. M.I.M. testified that she is seeking retroactive calculation for these years of both child and spousal and provided Divorce Mate tables that outlines support to be suggested as follows:

• 2018 child would be $2,823.00 and mid-range spousal is $4,763 .00.

• 2019 child would be $2,639.00 and mid-range spousal is $4,383 .00.

[47] Ms. M.I.M. further argues that Mr. C.M.’s income for subsequent years should be set at a minimum at $140.000.00 the level set out in the agreement, although his job in Canada permitted him to earn more as seen above depending on each given year.

[48] She argues that Mr. C.M. voluntarily left this employment and is currently intentionally underemployed due to his actions and that the court should impute income of at least $140.000.00. This would maintain the child and spousal at the same levels as in the agreement and as each child drops off leaving spousal at a revised amount of mid-level support to be based on the SAGGs to be $5,104.00 when no child support is payable.

The Law re IMPUTING INCOME – Under-Employment

[49] Section 19 provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s.19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include:

a) The spouse is intentionally underemployed or unemployed, other than where the underemployment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse.

b) The spouse’s property is not reasonably utilized to generate income.

c) The spouse has failed to provide income information when under a legal obligation to do so.

d) The spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

[50] 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 underemployed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

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

1. Is the party intentionally underemployed or unemployed?

2. If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs?

3. If not, what income is appropriately imputed?

[51] The test for imputing income for child support purposes applies equally for spousal support purposes. See: Rilli v. Rilli, 2006 CanLII 34451 (ON SC), [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v. Perino, O.J. No. 4298 (Ont. S.C.). The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 CanLII 26573 (ONCA).

[52] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or underemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

[53] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally underemployed or unemployed. See Filippetto v. Timpano, 2008 CanLII 3962 (ON SC), [2008] O.J. No. 417, (Ont. S.C.).

[54] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally underemployed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[55] Once underemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19.

a) The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah 2000 CanLII 22590 (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien, 2001 CanLII 28136 (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo 2001 CanLII 28202 (ON SC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047, 2011 ONSC 4047.

[56] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s underemployment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson 2006 CanLII 26573 (ON C.A.).

[57] Where the underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. See: Luckey v. Luckey, 1996 CanLII 11217 (ON SC), [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci 2001 CarswellOnt 4349 (SCJ)); Sherwood v. Sherwood (2006) 2006 CanLII 40795 (ON SC), O.J. No. 4860 (SCJ). This situation is similar to the one in Baldini v. Baldini (1999), 1999 CanLII 6717 (BC SC), 46 R.F.L. (4th) 407, [1999] B.C.J. No. 1426, where the court imputed income to the payor because he had been fired for doing personal work on company time and using company material without permission. The court found that the consequences of the payor’s actions should be borne by him and not by their dependents. Also see: Aboagye v. Sakyi, [2012] O.J. No. 575 (OCJ).

[58] In this matter before the court the parties agreement did not specify the grounds for spousal support.

[59] I find it beneficial in this matter that given the comments and some arguments that I heard in this trial to outline the law below that supports the obligation of Mr. C.M. to pay spousal support to Ms. M.I.M. now and in the future.

[60] In Beneteau v. Young, 2009 CanLII 40312(ONSC), the court described three categories of compensatory support as follows:

I. Non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation for the family); Walsh v. Walsh, 2006 CarswellNB 582 (Q.B.);

II. Specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage)’ Spurgeon v. Spurgeon (2001), 2001 CanLII 38738 (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);

III. Specific calculable advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 1992 CanLII 7715 (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.).

[61] Compensatory support – ongoing - although this need not be decided in this trial, I find it important to note that from the evidence in this matter that Ms. M.I.M. is eligible for ongoing spousal support based on compensatory grounds given the role that each parent played in the family and the advantages and disadvantages conferred by these - See Bracklow, 1999 CanLII 715.

Justice McLachlin in Bracklow states:

An entitlement to compensatory support may be established where a spouse’s ability to achieve self-sufficiency has been compromised by family commitments or where one spouse conferred substantial career advantage to the other.

[62] I find that the evidence demonstrates that Ms. M.I.M. suffered economic hardship and still does today as the primary caregiver to the children during the marriage and after the separation. This claim is not exhausted at this time.

[63] Uncontested facts from the trial re Ms. M.I.M.’s role during the marriage and at separation were:

• Ms. M.I.M. after she gave birth to the children stayed home caring for them, she did not work during the marriage.

• The parties agreed that her income in their agreement in 2017 was nil or 0.

• Evidence adduced at trial was that Ms. M.I.M.’s cancer and prognosis was known to the parties years before the agreement was signed, was being treated and could recur given the nature of the cancer and illness. This impacts on her ability to work or could limit that ability.

[64] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: - From Chutter v Chutter 2008 BCCA 507 Justice Rowles.

Further discussion and Decision:

Considering the main facts as outlined above and the applicable law I find as follows:

Re child support

[65] Mr. C.M. owes child support for both children up to April 2022 when all agree the child L.N.M. completed his studies.

[66] As for M.H.M. he enrolled and attended his program as per the requirements of the program which was part in class and part work for which he was paid some salary.

[67] I’ve considered the salary disclosed that he earned, some of the cost he bore in completing his studies and also the fact he took longer to complete the program as he elected not to be vaccinated. This prolonged his attending the in-class portion until permitted to do so with the relaxing of covid protocols at colleges. I find that considering the above factors that the date that Mr. C.M.’s child support for M.H.M. ended January 2023 as he could have completed this sooner than he did, and this was his doing.

[68] Below I set Mr. C.M.’s income level from which he will owe both the child support and spousal up to the above noted end dates for child support and ongoing spousal support after this.

[69] I have also set the amounts owing in child support for 2018 and 2019 to reflect Mr. C.M.’s increased salary for those years as he should have disclosed this information as per the Agreement.

[70] Regarding the amount of Spousal support that Mr. C.M. is obliged to pay Ms. M.I.M. I have considered the following:

[71] I’ve considered Mr. C.M.’s evidence to support a reduction in salary for 2020 during the pandemic Covid year not reliable.

[72] He states he moved to remarry and for a loving relationship.

[73] I was not provided in this trial any evidence as why Mr. C.M. needed to stop employment in Canada and move to be able to accomplish his goal to establish a relationship.

[74] No other person testified nor was I provided evidence as to why his decisions were taken as they were or options available to him.

[75] Just providing me with this act, a new relationship and a move and now new employment, is not sufficient evidence to overcome his long established and clearly outlined support obligations to his children and Ms. M.I.M. These pieces of evidence/information are simply stated conclusions.

[76] I would find this even if I were presented with some better evidence of a greater job search in the USA than the evidence I received, and arguments advanced by Mr. C.M. that given his education level he could not secure comparable employment in the USA as a financial officer in a company as he had in Canada.

[77] My assessment of this evidence advanced by Mr. C.M. is that he should have considered this and not have given up the job and salary of at least 140 thousand plus Canadian. If it came as news to Mr. C.M. after the fact, then this is not sufficient as this error in judgment cannot trump his responsibilities and was his creation and doing.

[78] This is not to say he can’t pursue his relationship as he has and where he wishes to live but this does not justify reducing his obligation or to put it in a different light, his children and Ms. M.I.M. should not shoulder the cost of this decision as they were and are as I have found eligible for support.

[79] The evidence of a reduction of income in 2020 presented by Mr. C.M. is not acceptable as found in Exhibit F to his February 11, 2022, affidavit. The attached email is not addressed to him but to someone else entirely and such evidence was not trial worthy in the format presented. Yes, it might be from his old employer but as presented it does not relate to him nor his employment in accounting.

[80] I find there is ample evidence that Mr. C.M. in 2018 and 2019 earned greater than the $140,000.00 or $170,000.00 noted in the Agreement. He did not until this litigation commenced disclose this greater income.

[81] The jurisprudence and the child support guidelines supports the position that child support should not be increased to match Mr. C.M.’s increase in salary for these years.

[82] I have considered both parties arguments as to what level to set for spousal support from 2018 to the present although Mr. C.M. commenced these proceedings in June of 2021.

[83] Ms. M.I.M. states that at the minimum her support should continue based on the $140,000.00 income that Mr. C.M. was making as set out in the agreement although it appears he had better years than that.

[84] For my reasons set out above I do not accept Mr. C.M.’s argument that it be based on his income that he has and is earning in the USA.

[85] The law on increasing support based on post separation income of the payor is comprehensively reviewed below taken from Justice S. Sherr’s paper on Spousal support considerations:

A comprehensive list of factors to consider is set out in Kinsella v. Mills, 2020 ONSC 4785, as follows:

1. A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse's post-separation increase in income (Patton-Casse v. Casse, 2012 ONCA 709 (C.A.), at paras, 26-27; Carr v. Condon, 2017 ONSC 173 (S.C.J.), aff'd 2018 ONCA 509 (C.A.); Choquette v. Choquette, 2018 ONSC 1435 (S.C.J.), aff'd 2019 ONCA 306 (C.A.)).

2. The question of whether there should be a sharing of post-separation income increases is not an "all or nothing" matter. Partial sharing of such increases, and/ or sharing for a specified period of time, are issues that the court should also consider when the issue arises (Fisher, at para. 89; Frank; Helle v. Helle, 2019 BCCA 97 (C.A), at para. 38).

3. The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation. Accordingly, in a proceeding governed by the Divorce Act, the factors and objectives outlined in section 15.2(4) and (6) must inform the overall analysis (Frank, at para. 111).

4. The basis of a spouse's entitlement to spousal support is an important consideration. In both compensatory and non-compensatory cases, the court's assessment of the needs of the recipient and ability of the payor spouse to pay are significant factors that should inform the court's analysis regarding sharing of post-separation income increases (Hartshorne v. Hartshorne, 2010 BCCA 327 (C.A.), at para. 56 ("Hartshorne 2010"). However, in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor's post-separation income increases (A.A.M. v. R.P.K., 2010 ONSC 930 (S.C.J.); Kohan v. Kohan, 2016 ABCA 125 (C.A.); T.N.F. v. M.V.J.A., 2018 ONSC 3310 (S.C.J.)). Nonetheless, the circumstances of each case must be carefully considered to ensure a just outcome, having regard for all of the objectives and factors outlined in the relevant legislation. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases in in purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality.

5. The existence of a compensatory element to a support claim is an important factor in determining entitlement to share in post-separation increases in income (Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.); Horner; Ludmer; Beninger v. Beninger, 2009 BCCA 458 (C.A.); Shukalkin v. Shukalkin, 2012 ABCA 274 (C.A.); Remillard v .Remillard, 2014 MBCA 101 (C.A.); Dancy; Lazare v. Heitner, 2018 ONSC 3604 (S.C.J.)). In addressing this factor, the court must keep in mind the various different indicia of compensatory entitlement and not simply the assumption of childcare and home management responsibilities. In these cases, the general strength of the compensatory claim is an important factor. The analysis should therefore include consideration of the length of the relationship, the extent of the recipient's contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made (Hartshorne 2010; Kohan; Dancy; Helle).

6. Another important consideration in compensatory situations is whether the recipient's efforts and contributions during and after the relationship contributed to the payor's financial advancement during the relationship and post-separation (Marinangeli; Hartshorne; Kohan; Dancy; Patton-Casse; Hersey v. Hersey, 2016 ONCA 494 (C.A.)). As the British Columbia Court of Appeal held in Helle, at para. 39, the court should consider the extent to which the payor ended up in favourable circumstances as a result of the joint enterprise of the relationship. Evidence that the recipient's sacrifices and contributions during the relationship supported the payor's financial progression post-separation will typically support a sharing of post- separation income and a higher amount of such sharing. In assessing whether and to what extent the recipient's efforts contributed to the payor's ability to advance financially, the court must maintain a broad perspective of the various means by which a spouse's contributions and sacrifices can support the other spouse's success both in the short and long-term, including for example assuming primary responsibility for home-management matters, taking on primary child care responsibilities during and/or after the relationship ended, assisting in the establishment and operation of the payor's business or subordinating their career to that of the payor so that the payor could focus on the development of their skills and career (Hartshorne 2010; Helle, at para. 40; Cameron v. Cameron, 2018 ONSC 2456 (S.C.J.); Fox v. Fox, 2017 ONSC 6509 (S.C.J.); Easton v. Coxhead, 2018 ONSC 4784 (S.C.J.)).

7. The fact that the recipient spouse has continued to be a primary caregiver for the children post-separation is a factor that supports a sharing of post- separation income increases, since this often allows the payor to continue to focus on their career advancement. On the other hand, the fact that the payor has primary care or shared care of children post-separation may also be relevant to whether sharing of such increases is appropriate, and the amount of any such sharing (Colautti v. Eggett, 2019 ONSC 2064 (S.C.J.); T.N.F.; Mahoney v. Tanner, 2016 ONSC 7182 (S.C.J.); Lazare).

8. The sharing of post-separation income increases is not necessarily dependent on the recipient spouse having sacrificed their own career advancement during the relationship for the benefit of the payor spouse's progression in their career (Horner; Helle, at para. 37). However, evidence that they did so is a further factor that may support a sharing of the increases (Cameron; Hamilton v. St. Denis, 2019 ONSC 2766 (S.C.J)).

9. In compensatory cases, evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases (Hartshorne 2010; Fletcher v. Fletcher, 2003 ABQB 890 (Q.B.); Judd v. Judd, 2010 BCSC 153 (S.C.); Kohan; Easton; Fox; Nieuwenhuysen v. Nieuwenhuysen, 2019 ONSC 4775 (S.C.J); B.S. v. B.W., 2019 ONSC 2769 (S.C.J.); Hamilton).

10. The courts often consider the length of time that has passed from the separation until the increase in income occurred. The closer the temporal link, the more likely it is that the court will find that the recipient's efforts supported the other party's post-separation financial success (Hartshorne 2010; Bryant v. Gordon, 2007 BCSC 946 (S.C.); Kohan; Nieuwenhuysen; Hamilton; Kozak v. Kozak, 2018 ONSC 690 (S.C.J.)).

11. Another important consideration is whether there were any changes in the payor's career post-separation that explain the increase in income, such as a new job, position or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient's efforts (Hartshorne; Chapman v. Chapman, 2009 CarswellOnt 8915 (S.C.J.); Patton-Casse; Mulick v. Mulick, 2012 ABQB 592 (Q.B.); Reid v. Gillingham, 2014 NBQB 79 (Q.B.), aff'd 2015 CarswellNB 176 (N.B.C.A.), leave to appeal refused 2015 CarswellNB 442 (S.C.C.); Tscherner v. Farrell, 2014 ONSC 976 (S.C.J)).

12. The courts also consider whether the increase in income is primarily attributable to the payor's decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship (Chalifoux, at paras. 25-26; Tscherner; Black v. Black, 2015 NBCA 63 (C.A.); Mahoney v. Tanner, 2016 ONSC 7182 (S.C.J.); Kozak).

13. Evidence that the increased income was attributable to specific, unusual events following the separation, such as unexpected changes in market conditions, is a factor that may weaken a claim to share in the increase (Kohan).

14. Evidence that the recipient spouse has not taken reasonable steps towards achieving self-sufficiency is another factor that courts have considered in determining whether there should be a sharing of post-separation income increases, and if so, the extent of any such sharing (Bryant; Kelly v. Kelly, 2007 BCSC 227 (S.C.); Kohan; Choquette, at para. 25; Kozak; Lazare). In such situations, the shortcomings in the recipient's self-sufficiency efforts will also be relevant to determining whether income should be imputed to them, but it is not inappropriate to consider the issue from both lines of analysis.

15. Evidence that the payor has also made contributions to the recipient's career advancement post-separation will also be relevant (Bryant, at para. 56; Kohan).

There is no hard and fast rule that a spouse can only share in increased post-separation income if their entitlement is rooted in compensatory elements. Rather, the Court must return to the principles set out in the legislation. See: Want v. Gauthier, 2021 ONSC 7595. This court set out the following process to follow at par. 111:

[86] The above development of the law in spousal support confirms that for a spouse to share in the other spouse’s post-separation increases in income, the court should embark on the following steps:

I. Review whether there is some link between the recipient spouse’s efforts and the post-separation increases in income.

II. The recipient spouse will usually be permitted to share if they can demonstrate that they made contributions that can be directly linked to the increased income.

III. If there is a link which includes the recipient spouse’s direct and indirect contributions, then the recipient spouse’s spousal support is based on a compensatory element, and he/she will be entitled to share in some or all of the post-separation income.

IV. Both direct and indirect contributions (like childcare) can give rise to sharing the payor's post-separation increase, whether before or after separation.

V. Consider the time elapsed since the date of separation.

VI. Consider the reason for the subsequent income increase (new job vs. promotion with same employer, or career continuation vs. new venture)

VII. Consider whether there are other compensatory elements. While there may be a weak link between the recipient wife’s efforts, e.g., he/she made no sacrifices, did not lose career opportunities, did not move for the spouse’s career, there may still be elements of a compensatory nature, such as the career trajectory started as here during the marriage. In these cases, the recipient spouse may be entitled to share in some of the post-separation income increases.

VIII. Consider whether there is a strong non-compensatory claim, seen for example in some cases of long-term relationships and disability or illness. These cases open the possibility for the sharing of the post-separation income.

IX. Consider sharing post-separation increases of income’s objective of maintaining a reasonable standard of living, as measured by the standard enjoyed during the relationship.

X. Consider if the income increases take place closer to separation and reflect a continuation of previous employment, training and experience during the relationship; and

XI. Carefully inquire into the facts for some non-compensatory cases.

[87] Automatically sharing post-separation increases and income is akin to treating a job as if it were a family asset, shareable in specie. Rather than doing so as a matter of course, courts should investigate whether there is a sufficient relationship between the increased income and the payee's efforts during marriage to justify allowing him or her to share in the increase. Rozen v. Rozen, 2003 BCSC 973, 37 R.F.L. (5th) 205 (B.C. S.C.). See also Patton-Casse v. Casse, 29 R.F.L. (7th) 210 (Ont. C.A.).

[88] When considering whether a spouse should share in the increased income of the other spouse, the case law seems to create a fundamental difference between whether the support is compensatory or non-compensatory. If the support is compensatory, support will almost always be calculated based on what the payor is then earning unless the payor has embarked on an entirely different career unrelated to the career pursued during the course of the marriage. See Epstein comment in L. (R.) v. B. (L.A.), 2013 CarswellPEI 48 (P.E.I. S.C.).

[89] In Stoodley v. Stoodley, 2021 NLCA 5, the court found that to share in a post-separation increase in income there must be a link to the marriage and the recipient spouse is only entitled to share the standard of living enjoyed in the marriage.

[90] Children are automatically entitled to share in increases, but not spouses. A one-time payment incentive was excluded in a spousal support calculation in Gammon v. Gammon, 2008 CanLII 54968 (ON SC), [2008] O.J. No. 4252 (SCJ). To share in post-separation increases in income, the wife must show that she had contributed to the acquisition of the other spouse's skills or credentials, thus contributing to his ability to earn the increased income. The Court noted that such contribution need not be "tangible and explicit." Sawchuk v. Sawchuk, 2010 CarswellAlta 32 (Alta. Q.B.):

[91] If the increase in salary is founded in expertise and seniority established during the marriage and no intervening event or events are the cause of the increase, then the increase is to be included unless the recipient's role during marriage necessitates a different determination. If an event after separation is the reason for the increase, in whole or in part, then the increase may be excluded from consideration, also in whole or in part. Judd v. Judd, 2010 CarswellBC 246 (B.C. S.C.).

[92] Restrictive view of entitlement to share in post-separation increase in income when court found that parties’ career arcs were established prior to separation and were not affected by compensatory factors (father was lawyer, mother was teacher). Retroactive claim for increased spousal support denied in Hersey v. Hersey, 2016 ONCA 494.

[93] In Punit v. Punit, 2022 ONSC, the court permitted the wife to partially share in a post-separation share of income as the husband had acquired the skills to obtain the better paying job during the 17-year marriage and there was a compensatory claim for support.

[94] Wife able to share in husband’s post-separation increases in income in Nieuwenhuysen v. Nieuwenhuysen, 2019 ONSC 4775 because:

a.) The Wife is entitled to spousal support on a compensatory basis.

b.) The increase in income was provided by the same employer the Husband had throughout the marriage.

c.) The Husband’s promotion and raise were a result of his work with the Region of Peel throughout the course of the marriage.

d.) The Husband stated that although he did not have the qualifications for the job, his employer was willing to give him a chance and give him 12 months to prove himself. It is acknowledged that he educated himself during that time, which occurred post-separation, but he was only given this opportunity to prove himself because of his successful career at the Region that he built throughout the marriage.

e.) The additional time the Husband spent on courses and training during his 12 months was during a period when either the wife had the children with her, or when he shared childcare responsibilities with her.

f.) This was a long-term relationship where the parties’ personal and financial affairs were completely integrated.

g.) The promotion occurred only two months after separation; and

h.) The continual increases in the Husband’s income is attributable to a job that was obtained when the family still lived together in the matrimonial home, albeit separated. At this time, and in all respects, the parties were living the very same life they led prior to separation, from a financial perspective and from the perspective of the roles they had in the family.

From the above several issues apply to the case at trial.

[95] Any increase is not automatic.

[96] In this case the increased years in Mr. C.M.’s salary, 2018, 2019 were just after separation which happened in 2017. Although contested by Mr. C.M. some of this success in his employment which he had for several years before resigning and leaving Canada can be attributed to the support he received over the years in the marriage.

[97] Ms. M.I.M. continued in the years after separation to play the same role of care giver to the children while they moved through and successfully completed their studies.

[98] Her spousal support is based on compensation which is more than just her role as a home manager and caring for the children.

[99] The marriage of slightly more than 26 years had an impact on her work skills and credentials.

[100] She has managed to find employment recently and persisted in this along with managing her health.

[101] Considering the law above and the facts as I find them outlined above, I find that Mr. C.M.’s income level for child and spousal support will be based as follows:

[102] Year 2018 – based on his earnings of $212,184.00.

[103] Year 2019 Based on his earnings of $196,798.00.

[104] For the year he left Canada 2020 and thereafter – based on $140,000.00 his base salary that he was earning in Canada.

[105] With the termination of child support and the income level of 140,000.00, spousal support based on the SSAGs has a low range of $4,375.00 mid at $5,104.00 and high at $5,654.00.

[106] I find that although there is a change that has happened in this family’s circumstances to find a material change it is not one of “such a nature or magnitude as to make the original order irrelevant or no longer appropriate…” Justice L’Heureux-Dube in B(G) c. G(L), 1995 CanLII 65 (SCC), 15 R.F.L. (4th) 201(S.C.C.)

[107] The order below does have a termination to Mr. C.M.’s child support obligations for L.N.M. and M.H.M at different dates and is based on his changing income levels which is fair and balanced.

[108] So, too will he continue to pay spousal support to Ms. M.I.M. This also will vary based on Mr. C.M.’s income levels and also considering Ms. M.I.M.’s current income, her changing role to her children, her health and the basis of her receiving support being compensatory. This I find strikes a fair balance given the facts in this case as I find them.

Order final:

The terms of the separation agreement section are changed as follows:

A. From January 1, 2018, Mr. C.M. owes Ms. M.I.M. child support in the amount of $2,823.00 for two children, L.N.M. born […],1999 and M.H.M. born […], 2001, based on a salary of $212,184.00.

B. From January 1, 2019, Mr. C.M. owes Ms. M.I.M. child support in the amount of $2,639.00 for two children, L.N.M. born […],1999 and M.H.M. born […], 2001, based on a salary of $196,798.00.

C. From January 1, 2020, up to March 31, 2022, Mr. C.M. owes to Ms. M.I.M. child support in the amount of $1,960.00 for two (2) children, L.N.M. born […],1999 and M.H.M. born […], 2001, based on a salary of $140,000.00.

D. From April 1, 2022, to Dec 31, 2022, Mr. C.M. owes to Ms. M.I.M. child support in the amount of $1,225.00 for one, 1 child, M.H.M. born […], 2001, based on a salary of $140,000.00.

E. Child support terminates December 1, 2022.

Spousal Support:

A. From January 1, 2018, Mr. C.M. owes spousal support to Ms. M.I.M. in the amount of $4,763.00 per month.

B. From January 1, 2019, Mr. C.M. owes spousal support to Ms. M.I.M. in the amount of $4,383.00 per month.

C. From January 1, 2020, TO December 31, 2022, Mr. C.M. owes spousal support to Ms. M.I.M. in the amount of $3,519.00 per month.

D. From January 1, 2023, Mr. C.M. owes spousal support to Ms. M.I.M. in the amount of $ 4,375.00 per month.

E. A Support Deduction Oder shall issue.

COSTS:

By November 1, 2023, Ms. M.I.M. if she is seeking costs shall serve and file via a 14-b motion to my attention, 3-page max submission on costs along with a bill of costs and signed offer to settle.

By December 1, 2023, Mr. C.M. to respond in the above manner via a 14-b motion to my attention.

Released: October 10, 2023

Signed: Justice A.W.J. Sullivan