ONTARIO COURT OF JUSTICE

DATE: February 28, 2024

COURT FILE No.: Toronto D20769/18

BETWEEN:

Anna Gillespie Applicant

— AND —

Andrew Gillespie Respondent

Before Justice Debra Paulseth

Heard as a Focused Hearing in Chambers

Reasons for Judgment released on February 28, 2024

Counsel: Anna G on her own behalf.......................................................................... for the applicant Paul S. Pellman.......................................................................... counsel for the respondent Janice Johnson, not participating, counsel for the Office of the Children’s Lawyer, legal representative for the children

Paulseth J.:

Overview

[1] The parties were married on November 13, 2004 and separated on March 31, 2014. They have two children, a daughter born on […], 2008 and a son, born […], 2009.

[2] For most of the marriage, the family lived in Mexico, where the father worked for a company based in Cyprus that provided port management.

[3] On December 17, 2014, the parents entered into a separation agreement, finalizing, with the assistance of counsel, a shared parenting arrangement, and child and spousal support. Andrew agreed to pay $1,392 a month in spousal support and $1,330 in child support, on income of $93,000. The agreement speaks to Anna becoming self sufficient and requires her to provide proof of her efforts on a regular basis. The agreement also provides for mutual financial disclosure upon request annually.

[4] At some point in 2014, both parents had new partners. Anna and her partner purchased a house in Toronto in 2014. Andrew and his partner started a new business in 2015, as his previous employment had been terminated. By 2018, Andrew and his partner wished to buy a house and Anna and her partner were separating. Andrew and his partner met on more than one occasion with Anna to discuss where they would move and buy property with the goal of attempting to live near each other and accommodate the needs of the children.

[5] Contrary to Anna’s affidavit, it was not Andrew who took her to court in the summer of 2018 but the reverse.

[6] In June of 2018, Anna brought the agreement before the court with an Application for sole custody. The proceeding was resolved by a consent final order on November 29, 2019. The order dealt primarily with shared parenting issues and specifically stated that the terms of the separation agreement not impacted by the order, primarily financial issues, remained in full force and effect.

[7] Financial issues were not pled in the 2018 proceeding but disclosure issues were addressed on two occasions in court: September 10, 2018 with timelines to complete requests and June 24, 2019 when the court specifically stated that “any disclosure requests not resolved should be addressed in a 14B motion to the case management judge”. No financial disclosure requests were addressed again so those orders lapsed with the conclusion of that proceeding.

[8] In April of 2021, counsel for Anna brought a Motion to Change in Brampton. It was eventually dismissed when no one appeared on the June, 2021 return date. In July of 2021, counsel for Anna sought successfully to revive the motion by an urgent, without notice 14B motion. Eventually it was dismissed as neither party lived in Brampton.

[9] In August, 2021, Andrew brought a Motion to Change seeking vaccinations of the two children. Anna responded in her Reply to the Motion to Change by seeking retroactive spousal and child support increases. Andrew replied and sought a termination of spousal support.

[10] At this point, the children were refusing to see Andrew. The court ordered vaccinations. To date, Anna has refused to vaccinate the children. The children in turn refused to consent. A type of parental relationship-building through court and clinical management has continued with respect to the parenting issues.

[11] The children spent equal amounts of time with each parent until March 2022 when they began residing primarily with Anna. Andrew proposes to pay increased child support, set off by the imputed income of the mother, from January of 2020 until March 31, 2022.

[12] The financial issues could not be resolved and counsel for both parties agreed on a focused hearing through documentary and affidavit evidence and written submissions.

Position of the Parties:

[13] Anna seeks to vary the Separation Agreement of 2014 and consent order of 2019, where the parties agreed to leave the terms of the Agreement unchanged, and asks the court to:

(a) Impute Andrew at higher income; (b) Increase spousal support retroactive to December 1, 2014 and continue it indefinitely; (c) Increase child support retroactive to December 1, 2014; (d) Fix section 7 expenses and order Andrew to pay retroactive extraordinary expenses; and (e) Re-imburse her for legal and psychological assessment fees paid by Anna when dealing with the parenting issues.

[14] Anna agrees to “some income being imputed to her”.

[15] Anna also seeks disclosure of various bank records here and in other countries and information from Andrew’s previous employment prior to the agreement in 2014.

[16] Andrew seeks to maintain the terms of the previous agreement and court order of 2019 and asks the court to

(a) Accept his income as valued by his expert for child support purposes and vary child support retroactive to January 1, 2020; (b) Impute income to Anna, including rental income, effective January 1, 2020; (c) Maintain his spousal support payments at their current level with cost of living adjustments, effective January 1, 2020, and terminate spousal support, effective March 2022; (d) Fix section 7 expenses proportionate to their incomes; and (e) Fix future section 7 for post secondary education: divided, one third payable by the student and two thirds shared proportionately by the parents according to incomes as fixed by the court.

Preliminary Issues:

Disclosure and The Agreement (2014)

[17] The Court of Appeal recently underlined the “strong and well-known policy reasons for respecting agreements made between parties to family law proceedings whenever feasible.” Zhao v. Xiao (2023), 92 R.F.L. (8th) 265 (Ont. C.A.)

[18] There is no dispute that both parents had counsel and financial disclosure prior to their agreement in 2014. Anna seeks more disclosure to prove Andrew’s income was higher than agreed upon.

[19] To support her request for further financial disclosure dating prior to the agreement, Anna relies on:

(a) E-mails from Andrew, prior to the agreement, referring to business bank accounts in other countries; (b) Her statements that Andrew has or had tax free overseas’ accounts; (c) Her statements that Andrew provided no proof of his income, and she was forced to trust him; and (d) Her statement that Andrew threatened her that he would take the children away from her if she did not cooperate.

[20] At no point did Anna put this information before the court in the form of a motion for disclosure or an application to set aside the agreement.

[21] Anna had experienced counsel and legal advice before entering the agreement of 2014.

[22] This hearing was intended to bring some finality to the affairs of these two parties. There is very little evidence upon which the court could base a decision to re-open the financial affairs relied upon for the agreement made in 2014.

[23] There is no evidence of threats or duress. Counsel for Anna specifically states in the Agreement that Anna entered the agreement “of her own volition”.

[24] The court declines to make an order of financial disclosure for material prior to 2015.

[25] The court declines to re-open the agreement of 2014 or to set it aside.

The Effect of the 2019 Consent Order:

[26] Anna now claims in her Reply to Andrew’s Motion to Change that she did not know that Andrew’s income had increased from 2015 until 2019. She raises the issue of increased support from the prior motion to change. She requests sweeping disclosure and valuations of his business. Andrew agreed to most of the disclosure and valuation requests.

[27] As part of the disclosure, it becomes clear that Anna was working in 2018 and 2019 and was also earning rental income.

[28] Both parties had new partners with their own respective business income.

[29] As the parties had an agreement for equal parenting time, it can be assumed that the parties had a lot of contact with each other and each other’s partners.

[30] Anna agreed to resolve the prior motion to change in November of 2019, by leaving the remaining terms of the separation agreement intact and unchanged.

[31] Anna gives no reason for not respecting the order in 2019, other than insufficient disclosure. She and her counsel took no step to obtain further disclosure at that time Neither she nor her counsel took any further step after the consent order. In fact, no step was taken until Andrew sought a motion to change regarding the parenting issues. Anna cannot explain this delay.

[32] The following principles apply here:

1. the court should not go behind agreements reached by the parties with counsel; see Brooks v Brooks, 2012 NBCA 50; WCP v LMH 2020 BCPC 118.
2. The court should not go behind a judge’s order, see DaSilva v Ferguson 2023 ONSC 6149.
3. Neither the Divorce Act nor the Family Law Act permit the court when considering a variation to make an order retroactive to a date before the subject order was made; see Vanbeek v Vanbeek 2008 23712 (ONSC)

[33] The court will not make orders that go behind the Consent Order of November 2019.

Child Support

Threshold Issue: Material Change of Circumstances:

[34] Andrew agrees his income has gone up for the purpose of child support but not for the purpose of spousal support. He agrees to pay child support on the increased income effective January 1, 2020.

[35] Anna wanted the changed circumstances to be effective before 2020, but the court will address change since the date of the last order; specifically, January 1, 2020.

[36] Both parties agree that there was a further significant change to the parenting arrangements in March of 2022, when the children went to live primarily with Anna.

Retroactive Child Support

[37] The court has authority to make retroactive support orders under clause 34 (1)(f) of the Family Law Act (the Act).

[38] In September 2021, Anna replied to Andrew’s motion to change by seeking retroactive support to 2014 or in some paragraphs, 2015. In her pleading she acknowledges she did have disclosure of Notices of Assessment from 2016 to 2018 in August 2019, but did not have the years 2013, 2014, and 2015. She sought an independent valuation of his business. She acknowledged having his corporate statements since July of 2020. At some point she had his earnings from 2019.

[39] Presumptively, September 2021 is the date that Andrew received notice about this retroactive claim.

[40] The parties agree that support should change retroactively to January 1, 2020, even though this motion to change did not begin until August of 2021. The court agrees this is a fair date in recalculating child support.

[41] Anna seeks a retroactive increase in child support based on the father’s increased income. Anna generally accepts the father’s income as evaluated by his retained expert.

[42] Andrew agrees to pay increased child support at the full table amount of $2,232 per month effective April 1, 2022, when the children moved to primary residence with the mother.

[43] For the purpose of child support, he wants his income to be the amount imputed by his income valuator. This amount is based on Andrew’s Notice of Assessment for 2022 plus the add-on expenses, totalling $170,521.

[44] In the alternative, if I have misunderstood Anna’s position on this issue, I have considered the guidance from both DBS and Colucci, as set out below

[45] The court in DBS v SRG, 2006 SCC 37, suggests a low bar when determining effective notice; such as broaching the topic. This was justified by a lack of information in that case. Here Anna had a great deal of information and did nothing.

[46] Colucci v Collucci 2021 SCC 24, provides criteria that apply when the court is considering exercising discretion to depart from the presumptive date of effect notice:(para 97-108)

1. Reasons for delay? The parties were having ongoing discussions about the children; in particular the special needs of the daughter and vaccinations. Most if not all of the financial disclosure had been made by Andrew. Anna had employment during 2018 and 2019; as well as rental income. The children were being shared equally.
2. Blameworthy conduct? Did Andrew show a pattern of conduct that appeared to benefit himself over his children’s interests in receiving the proper amount of child support? There is no evidence to suggest that Andrew did anything other than focus on his children. He, in fact, agrees to pay the higher child support based on his valued income from 2020.
3. What were the circumstances of the children? The children were caught between their parents’ differing views on covid vaccinations. The parents were in constant litigation mode.
4. Hardship? There is no hardship claim.

[47] Collucci also indicates that the court retains discretion to depart from a presumptive date based on a criteria of fairness. (supra, para 114)

[48] The paramount interest of the court is the fair standard of support commensurate with income for these two children.

[49] Considering all of these factors, the court finds that the fairest date to commence changes would be January of 2020.

Andrew’s Income

[50] Andrew’s salary was fixed at $85,000 US in 2014, or $93,038 CAD. This is the salary used for the 2014 agreement. He had just been demoted by the company he worked for. While in Mexico, he had worked primarily in the office. The family needed to move to Canada due to the daughter’s need for cochlear implants to assist with her hearing. In January of 2015, the company terminated him.

[51] Andrew says he experienced severe stress from the separation. He has underlying medical conditions and he developed further medical problems.

[52] In 2015, Andrew and his new partner started a new business. His partner helped him to secure two large clients for consulting work. In 2016, they incorporated the company, which provides services such as: consulting, equipment sales, short term operating capital, communications, and site attendance when cargo is being loaded/unloaded.

[53] Andrew has no post-secondary education but is a smart and experienced on-site operator. His partner brought 19 years of business, strategic management, consulting and financial experience to the company. From 2015 until 2022, Andrew worked onsite at 49 ports in 21 countries, mostly in the third world, to establish this new business.

[54] Andrew provided medical documentation describing several physical conditions:

(a) Hypertrophic Cardiomyopathy (HCM) which is an enlarged heart. This is a genetic condition which requires medical monitoring. He is advised to avoid strenuous and stressful situations. His sister died of this condition at the age of 19. Three of his children have also inherited this gene. (b) Atrial Septal Defect is an unrelated congenital heart condition, for which he required surgery in 2009. He had a pacemaker and defibrillator implanted during the surgery. (c) As a result of the physical labour required to develop his company over the last 8 years, Andrew has developed painful back/spine issues.

[55] As a result of covid and his health issues, Andrew has cut back his travel in recent years.

[56] Andrew retained an expert income valuator to review all of his company and personal tax returns for the years 2015-2020. This was done at Anna’s request. The report is very detailed and takes into account, dividends, retained earnings, the pre-tax corporate income and the personal portion of expenses that should be added back to his pre-tax income for the purpose of child support, with appropriate tax consequences. Andrew’s income was valued as follows:

1. 2015 $201,000
2. 2016 $210,000
3. 2017 $203,000
4. 2018 $192,000
5. 2019 $232,000
6. 2020 $180,000

[57] Based on his Notice of Assessments, Andrew’s income for subsequent years is:

2021 $140,000 2022 $154,000

[58] Andrew argues that the increase in his income is due to the new revenue streams that he and his partner developed from 2015 onward. Andrew himself worked in many countries in very laborious and stressful situations to build this business. This work is very different from the desk job he held in Mexico during the marriage.

[59] He argues that his income for spousal support purposes should be fixed at $93,038 in 2020 and then adjusted by cost of living increases annually of 2.5%. This issue is addressed in that section below.

[60] Andrew proposes that his child support be based on his assessed income. This assessment includes an additional amount for personal expenses and grossed up for tax. Andrew has also increased his child support twice during this litigation.

[61] Andrew proposes to pay full table amount of $2,232 per month, commencing April 1, 2022 when the children’s primary residence moved to mother’s home. He calculates the total net amount owing would be $9,804 until April 2023.

[62] Andrew submits that Anna owes him arrears of child support for the period of January 2020 until March 30, 2022, based on her imputed income, the amount he paid for CSG, and the set off for child support purposes. He calculates this amount to be over $19,000. [i]

[63] The court sets out the applicable numbers from Andrew’s proposal as follows:

Year	Andrew’s Income	Anna’s Income	Offset
2020	$180,000	$84,137 plus spousal support of $16,704	$6,549 over payment by Andrew
2021	$155,453	$84,137 plus $16,704	$10,740 over payment by Andrew
2022	$170,521	$84,137 plus $16,704	$2,139 over payment by Andrew

Anna’s Income

[64] Andrew acknowledges that Anna made sacrifices to marry him and live in Mexico for 6 years. He agreed she was entitled to spousal support. He has always paid that support.

[65] Anna does not dispute that she holds an MBA, from a university in Poland, and a post graduate diploma in Public Relations. In 2018 and 2019, she earned approximately $60,000 a year as a business development coordinator. Anna speaks three languages fluently: English, Spanish, and Polish. She also has university level German language facility.

[66] During and post separation, the children were in school full time and until March of 2022, the parents shared time equally with the children.

[67] Andrew has provided two reports regarding Anna’s potential income:

1. Ms Pereira is a vocational evaluator with extensive experience and credentials in this area. Anna does not dispute her credentials or expertise. Based on a review of Anna’s education and experience, Ms Pereira compares Anna’s background to several career possibilities which would bring Anna income of approximately $70,000. annually
2. Mrs Golata is an experienced human resource professional with extensive experience over 15 years in the field. After reviewing Anna’s education and experience, she states that Anna has the potential to earn salary of between $72,000 and $78,000 per year.

[68] In addition, Anna rents out the home she bought initially with a new partner in 2015 and she lives in her own home (of which she owns 50%). Her share of the real estate is worth together about 1.2 million, net of mortgages. The total market value for both houses is about $2.1 million.

[69] Anna collects rent from the first house as set out below:

Year	Rent Collected
2016	$16,920
2017	$22,930
2018	$27,000
2019	$27,675
2020	$28,367
2021	$28,367
2022	$29,076

[70] Anna’s rental expenses ranged from $11,000 to $12,247 a year, including insurance, taxes, utilities, and interest payments. Anna provided no invoices for repairs for these years, although her affidavit states she has paid large amounts for repairs which she then deducted from her income. The most income she reported to CRA was in 2022 for $12,300.

[71] Anna deposes that she and her boyfriend were only together for about two and a half years. The boyfriend moved out in early 2017. Anna then bought a second home.

[72] Anna said she has applied to over one thousand job postings on the electronic site “Indeed”. When Andrew reviewed the job search that Anna provided, he estimated that she spent a total of 6 hours in three months applying for work. He also averaged that she spent about 2/3 of an hour a week looking for work. Anna did not report any interviews in 3 years but her affidavit in reply states that she did have a few interviews.

[73] Anna reports that she suffers from ulcerated colitis. A medical report from her gastroenterologist in October of 2021 indicates that her disease has been “well controlled in remission”. She requires lifelong monitoring, but the doctor does not indicate that she cannot work or that she requires any particular accommodation.

[74] Anna disputes the reports that Andrew paid to have done for an estimate of her work possibilities, primarily because she says they do not take into account her medical condition and her lack of Canadian work experience.

[75] Anna also deposes that she needed to be home during covid to assist the daughter with school. There is no evidence to support that view, although Andrew does agree that her hearing is an issue for the daughter.

Assets:

[76] As indicated above, Anna owns two homes and rents one of them. She last worked full time outside the home in 2019 but was terminated from that employment.

[77] Andrew has retained earnings in his company of $500,000. Andrew needs to keep retained earnings so as to fund one of his streams of revenue relating to operating capital. He has RRSP’s of $160,000. He and his partner do not own their home but pay rent of $74,400 per year. His partner works full time and also works for their company. They have two children.

Section 7 Special Expenses:

[78] The Agreement of 2014, as confirmed by the order of 2019, stipulates that:

(a) The parties must consent to the extraordinary or special expense in advance in writing. (b) Andrew to pay his pro rata share. (c) Post secondary expenses shall take into account the child’s contributions through savings, gifts, employment, bursaries, loans. (d) Andrew is required to maintain the children’s medical, extended health, and dental coverage through his work for as long as it is available to him. Any expenses not covered are to be considered special expenses and father is to pay his share as set out for section 7 above. (e) Once a year a party may request a review of the expenses and financial disclosure. Disclosure is to be provided within 30 days. Disagreements go to a dispute resolution process set out in the Agreement which provides for negotiation, disclosure, and mediation with timelines.

[79] Andrew is seeking $2,258 in special expenses incurred since March 2021. He submits:

(a) Anna’s share is $1,006. of health insurance coverage for the children; based on 50% of total cost of $2012.22 paid from March 2021 until May 2022. (b) Anna’s share is $160.80 for dental coverage for the children for March and April of 2021, after deducting the amount covered by insurance and dividing the cost in half. (c) Anna’s share of the cost of daycare for the summer of 2021, which is 50% of the total of $2183.50 or $1091.75.

[80] Andrew proposes that he would pay for about 67 or 68% of the expenses.

[81] Anna is seeking Andrew’s increased contribution for the daughter’s cochlear implants which were shared equally and not in proportion to income. She maintains that Andrew owes her :

1. $2,830 in 2023;
2. $2,200 in 2018;
3. $1,161 for 2015; which she forgot to include in her affidavit;
4. $444 for chiropractic fees ?; and
5. $1,562 for the insurance premiums.

[82] The total owing to her is $8,197 for section 7 expenses for the daughter.

Other Items:

[83] Anna is also seeking $2,000 plus HST for a psychological assessment conducted in 2022 with the family. Anna maintains that Andrew had falsely claimed that she was alienating the children from him, necessitating the assessment and legal fees. This issue belongs with the parenting part of the case.

[84] Andrew is seeking the outstanding amount owing by Anna for a cost award against her earlier in this litigation. Anna disputes the amount still owing. The court will deal with the amount of costs outstanding when the costs of this proceeding are addressed.

Andrew’s Income for CSG and Special Expenses

[85] Both Anna and Andrew agree that his income for child support should be as valued: $180,000 for 2020, $155,453 for 2021 and $170,521 for 2022. His Notice of Assessment income for 2023 is not yet available, but he will pay full table on $170,521 effective April 1, 2022

[86] Andrew agrees to be bound by the CSG, although his income is greater than $150,000. The guideline formula would thus apply ( see s. 4 CSG).

Anna’s Income for CSG and Special Expenses

[87] Both parents have ongoing obligations to support their children. Imputing income is one method of satisfying this obligation.

[88] The court in Drygala v Pauli (2002 41868 (ON CA), 2002 OJ No 3731 (OCA)) set out a three part test to determine whether income should be imputed:

(a) The onus is on Andrew to prove that Anna is intentionally unemployed or under employed.. Is Anna intentionally unemployed or under-employed? Is she choosing to earn less than what she is capable of earning? Are her actions voluntary and reasonable? (i) The evidence is that Anna is physically able to work, has education and experience that would contribute to a workplace, and has worked as recently as 2019. Her doctor says her condition is under control. She has post secondary education, facility in three plus languages, and both children in school. (ii) The evidence supports Andrew’s contention that Anna is intentionally unemployed. (b) Are there reasonable educational, health or child needs that prevent her from working? (i) Anna has significant education and speaks several languages. She has had time to re-train if she needed to. Anna’s doctor does not indicate any health reason for not working or any accommodation that is required. Both children are in school. Their daughter struggled with covid home schooling but there is no indication that Anna could not have worked. (c) The onus then shifts to Anna to show the reasonableness of her decision. (i) Anna has adduced no evidence on this point. Apart from her health and the care of the children, Anna gives no information about why she is not employed.

[89] The court must then impute income taking into account Anna’s age, education, experience, skills, and available opportunities.

[90] Anna provided copies of “Indeed” job applications. She does not explain or describe her efforts. This evidence provides some acknowledgement that she should be working. She does not address re-training or skills development. Her efforts appear to be perfunctory at best.

[91] Anna was employed in 2018 and 2019 as a business development coordinator for an annual salary of $60,000. Her resume sets out a number of additional skills.

[92] Andrew provided evidence from two different professionals- a vocational evaluator and an experienced human resource professional. Together they estimate her earning potential as $70,000 to $78,000 a year.

[93] Anna has failed to provide receipts to the court for expenses related to the property, except for one, despite declaring over $12,000 a year in expenses. Andrew is suggesting a modest imputation of rental income of $14,000 a year.

[94] Based on all of the above evidence, the court accepts Andrew’s proposal that Anna be imputed at income of $70,000 a year plus a moderate amount for rental income of $14,000. The $70,000 is the lowest of the estimated income suggested by Andrew’s two vocation/human resource professionals and is only $10,000 more than her two previous years’ income.

[95] The income imputation should be effective January 1, 2020, as Anna had been working regularly in 2018 and 2019. She gave no evidence about how she lost that position.

Income Offset for Child Support:

[96] The child support changes are effective January 1, 2020. The calculations need to be made in two steps- income and the cost of shared parenting.

[97] Andrew’s evaluated income in 2020 and subsequent years is set out above. Anna’s income is imputed consistently at $84,000.

[98] In Kerr v. Erland, 2014 ONSC 3555, Blishen J. summarized the approach applicable under s. 9 and at paragraph 116 wrote:

Section 9 recognizes the increase in costs assumed by one parent does not necessarily lead to a decrease in costs assumed by the other. Section 9(c) requires the court to consider principles of fairness and, importantly, the standard of living of the children in each household along with the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances.

[99] Section 9 CSG indicates that where the parents are sharing parenting time with the children, such that each parent has no less than 40% of the time over the course of a year, then child support must be determined by taking into account:

(a) Table amount for each parent; (b) The general increased costs of shared parenting time; and (c) The conditions, means, needs, and other circumstances of each parent and child.

[100] The Court in Contino v. Leonelli-Contino, 2005 SCC 63 set out a number of principles for the court to consider in applying section 9 CSG; for example:

• all 3 factors in s.9 should be considered
• flexibility is important
• no presumptions apply
• consider each parent’s continuing ability to meet the needs of the child
• the setoff can be modified if there are different standards of living
• consider all circumstances
• no formula is mandated
• Section 9 is broad enough to incorporate section 7 expenses directly in the examination of child-related expenses.
• no need to resort to section 10 undue hardship analysis.

[101] It is important to note that a variation from a prior custody and support agreement will raise different considerations as a recipient parent may have incurred expenses, especially fixed expenses, based on legitimate expectations of continued child support.

[102] The court has considered all of the parents and children’s circumstances; in particular, the following:

(a) From 2014 until 2022, the parents shared the children’s time equally; (b) Each parent set up a home for the children; (c) Each parent had re-partnered for at least part of that time; (d) The original agreement in 2014, indicated expressly that : “Anna knows she must contribute to her own support. She will make reasonable efforts to find a job and become self-sufficient, and will provide Andrew with written proof at 8 month intervals for the first two years and annually thereafter”. (e) There is no dispute that the children have been well cared for; and (f) The set off amount will produce a similar table CSG as the table CSG prior to 2020 as Andrew’s income increased by an amount between $80,000 and $90,000 and Anna is imputed at $84,000

[103] In conclusion,

1. Anna and Andrew will have an offset of child support arrears, based on her imputed income and Andrew’s evaluated income, effective January 1, 2020. Anna owes Andrew approximately $19,000.
2. Andrew owes Anna for full CSG for two children from April 1, 2022, on his evaluated income of $170,521 a year until April 30, 2023. Andrew owes Anna $9,804.

Material Section 7 Expenses

[104] Each parent is claiming section 7 expenses for various items retroactive to 2018. Based on the analysis above, the court will only recognize expenses from January 1, 2020.

[105] The court finds that several of Anna’s requests are not reasonable as there are no receipts nor evidence of a written agreement in advance. Some of Andrew’s requests fail for the same reasons.

[106] In the original agreement, Andrew was to cover the children under his benefits while he had benefits as part of his employment. Any amounts for medical, extended health, and dental costs in excess of the coverage would be shared proportionately to their incomes.

[107] Andrew proposes and it is consistent with their agreement that each parent should cover their own benefits’ insurance premiums.

[108] From the date of this order, the parents should share proportionate to their incomes any amounts for medical, extended health, and dental not covered by insurance.

[109] In particular, the court accepts that the parents should share any outstanding cost and future costs of the daughter’s cochlear implants, proportionate to their respective incomes; approximately 67% to Andrew and 33% to Anna. This amount should be net of benefit coverage and available grants and subsidies.

[110] Anna shall disclose the applications and payments of all disability programs, government grants, or other subsidies.

[111] For post secondary expenses, Andrew proposes and Anna does not dispute, a proportionate sharing of two thirds of the cost, with the young person covering the remaining one-third. The court agrees.

Spousal Support:

[112] Anna is seeking indefinite increased retroactive spousal support based on Andrew’s evaluated higher earnings. Andrew proposes a termination of spousal support.

[113] Spousal support is intended to address financial inequity following the end of a relationship.

[114] Section 30 of the Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[115] Subsection 33(8) of the Act sets out the purposes of spousal support as follows:

(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.

[116] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account. See Rioux v Rioux (2009) 2009 ONCA 569, 97 OR (3d) 102 (OCA)

[117] In Bracklow v Bracklow 1999 715 (SCC), the court discusses the various grounds for entitlement, including compensatory and where the spouse is unable to become self-sufficient and the support is based on need rather than the roles during the relationship.

[118] 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.

Variation of Spousal Support

Material Change

[119] Court should look at the circumstances as contemplated at the time of the original order, to determine material change.

[120] Justices Abella and Rothstein speaking for the majority in the case of L.M.P. v. L.S., 2011 SCC 64) set out the following relevant principles with respect to a variation of a spousal support order:

1. the proper analysis of a variation application is the same whether or not a spousal support order incorporates an agreement that is, the threshold issue is whether or not there has been a material change in circumstances since the making of the order;
2. a material change must have some degree of continuity and not merely be a temporary set of circumstances;
3. what amounts to a material change in circumstances depends on the parties actual circumstances at the time of the order;
4. a term in an agreement that contemplates a specific type of change that will or will not give rise to a variation should be given effect to as it is evidence that the parties considered this particular situation changed circumstances;
5. a general clause in an agreement that support is final or implying it is final is still subject to a court applying an inquiry to determine if there has been a material change in circumstances;
6. once a material change in circumstances has been established, the variation order should properly reflect the objectives of a spousal support order taking into account the material change in circumstances and consider the existence of the separation agreement and its terms as a relevant factor; and
7. the court should limit itself to making the variation that is appropriate in light of the change. A variation should not be approached as if it were an initial application for support, nor is it an appeal of the original order or a new hearing - “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”.
8. The parties can define what constitutes a material change in the original order or agreement.

[121] The variation to spousal support has to be considered against the backdrop of the original order which was arrived upon in the context of a broader agreement. In Haworth v. Haworth, 2018 ONCA 1055 the court found it was not a case that required a rescission of the original support order. Instead, the motion judge should have used the original support order and varied it only to the extent required by the change.

[122] The test for variation is a change that is substantial, continuing and not foreseen at the time of the previous order, NOT, whether the change was foreseeable at the time of the original order. See: Rollie Thompsons's article"To Vary, To Review, Perchance to Change: Changing Spousal Support" (2012) 31 Can.Fam.L.Q. 355.

[123] The court notes the discussion in Licata v. Shure, 2022 ONCA 270:

The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:

1. a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
2. the change must materially affect the child; and
3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order

[124] Anna submits there has been a material change warranting a variation of spousal support because Andrew’s income has increased.

[125] Andrew submits there has been a material change as Anna should be imputed with income, effective January 1, 2020.

[126] The court agrees and finds that there is a material change in circumstances effective January, 2020.

[127] One further change has been the children going to live primarily with Anna effective March 2022.

Entitlement and Duration:

[128] The parties original agreement included spousal support for Anna on a compensatory basis. She had been home with the children and would need some time to become self sufficient. The children were already in full time school.

[129] The shared parenting plan meant that both parents would share the future responsibility for the children.

[130] The goals of self sufficiency were written into the agreement with Anna being responsible for regular reporting requirements. The parents shared the parenting time equally.

[131] The relationship was about 9 and a half years. By the time Anna replied to Andrew’s Motion to Change, raising the retroactive claim for increased support in August 2021, Andrew had been paying for 7 years.

[132] Andrew agrees to pay spousal support until March of 2022, or 8 years. Andrew agrees to entitlement continuing until that date and then seeks termination.

[133] The court agrees that Anna is entitled to spousal support at least until March 31, 2022. Further discussion about that date is below.

Variation of Spousal Support Retroactively:

[134] Anna submits that Andrew’s spousal support should be based on his increased income, the same income used for child support purposes.

[135] Andrew agrees to increase his income on a 2.5% cost of living basis only; specifically:

(a) 2014 $93,038 (b) 2020 $95,364 (c) 2021 $97,748 (d) 2022 $100,192 until March 31, 2022

[136] In Kerr v. Baranow 2011 SCC 10, the court set out the principles for a claim for retroactive spousal support:

(a) DBS factors apply as modified for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). (b) Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise. (c) The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case, where the claimant moves the matter quickly to trial after obtaining disclosure. (d) At paragraph 208: Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, … In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. (e) D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.

[137] Again, the parties agree and so does the court that changes to spousal support should be effective January 1, 2020.

Quantum – Post-Separation Increases in Income:

[138] Andrew argues that Anna is not entitled to a share of his increased income as she did nothing to develop or advance that business. Anna does not adduce evidence of her role in Andrew’s new business.

[139] It is clear from Thompson v Thompson 2013 ONSC 5500, that Anna is not automatically entitled to share in Andrew’s post separation increase in income.

[140] 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; 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 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 child care 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 7082 (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 975 (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 7082 (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).

[141] 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 27673 (ON CA), 2003 CarswellOnt 2691.

[142] 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).

[143] 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.)).

[144] 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.

[145] In this case, the court notes the following:

(a) The relationship was nine and a half years; (b) Andrew agrees to pay spousal support for 8 years; (c) Anna has two properties and rental income acquired since the separation; (d) During the relationship, Andrew was employed by a company operating in Mexico. His position was primarily in the office; (e) After relocating to Toronto, Andrew lost his job and was forced to reinvent himself and to make significant personal sacrifices; (f) Andrew started a company with his new partner which involved several different revenue streams. It also required Andrew to travel and work abroad in third world countries under extreme weather and physical conditions; and (g) Post separation, the parents shared the child care equally; thus Anna was not contributing in any way to father’s new venture.

[146] As in Kozak v Kozak 2018 ONSC 690, Anna has had a compensatory claim based on her role with the children prior to separation. Post separation, the parents shared the children’s time. Andrew and his new partner, mainly due to the experience of the new partner, developed a multi-pronged business. Andrew made significant changes to his life to work in third world countries in very tough conditions. Those years negatively affected his health.

[147] Based on the legal principles above and the following:

(a) Anna led no evidence to link her pre-separation efforts to the father’s post separation business; (b) Father’s partner had tremendous educational and business acumen which guided the new ventures; (c) Father’s partner had significant contacts; (d) Andrew and Anna shared the care of the children equally post separation; (e) The work was in different countries and ports and required a hands on approach from Andrew; (f) Andrew was forced to make significant personal sacrifices; and (g) Andrew’s business had several different revenue streams:

Anna should not share in Andrew’s post separation increase of income from his new business.

[148] Anna herself re-partnered and bought a home with her new partner. They were together for more than two years and his business is still listed as located at her address. Anna has purchased a second house and is able to earn rental income. Until March of 2022, Anna only had the children half time. In fact, at all material times since separation, the children have been in full time school.

[149] It is noteworthy, that Anna has had 10 years since separation, to pursue her own employment income. Her income is imputed as set out above for the purpose of both child and spousal support.

[150] Anna has not sought out any employment assistance or skills’ re-training.

[151] Andrew has rightly offered a cost of living increase to his income for spousal support purposes, such that the income increases annually by 2.5%.

The Spousal Support Advisory Guidelines (SSAG)

[152] The Spousal Support Advisory Guidelines (SSAG) do not apply until entitlement is established.

[153] The SSAG are the presumptive starting point for awarding support: See: McKinnon v. McKinnon, 2018 ONCA 596, at para. 24; Slongo v. Slongo, 2017 ONCA 272, at paras. 105-106. While not binding, the SSAGs should not be lightly departed from: Slongo, at para. 105. Any departure requires adequate explanation: McKinnon, at para. 24.

[154] There is nothing exceptional in this case. The formulas were used for the original agreements with the child support formula.

[155] There was no submission by either party that the formula would not be appropriate.

[156] In this case, the court is using the CSG and applying the SSAG. Each party’s income is used.

[157] In applying the formula from SSAG to the incomes as found above and taking into account the CSG, Andrew submits that the spousal support payable is at a mid range results in the following:

(a) 2020 - Andrew’s income is $95,364 Anna’s income is $84,137 SSAG $132 a month Andrew’s overpayment is $15,120

2021 - Andrew’s income is $97,748 Anna’s income is $84,137 SSAG $162 a month Andrew’s overpayment is $14,760

2022 Andrew’s income is $100,192 Anna’s income is $84,138 SSAG until March 31, 2022 - $191 a month Andrew’s overpayment is $1,884.

[158] The total overpayment by Andrew effective March 31, 2022 is $31,764

[159] The court chooses to fix the support at the higher range of SSAG. Thus, the overpayment is reduced by about $2,500. to $29,264.

[160] The parties did not address the tax consequences of this over payment. The court leaves the parties to deal with this issue when re-imbursement is made.

The Effect of March 31, 2022 Child Support Change

[161] The court finds that entitlement to spousal support terminates on March 31, 2022; based on the above findings and in particular these:

(a) Anna is imputed with income from 2020; the same income is used for each year when, in reality, it would increase at least by some cost of living; (b) Similarly, rental income would also increase; (c) The economic environment has improved since the end of covid; (d) Anna must make some efforts to be self-sufficient; (e) Anna has used the litigation as an excuse to finding employment and saving money; (f) Anna has said she spends most of her spousal support on various lawyers.

[162] In the alternative, when Andrew begins to pay on full table CSG on April 1, 2022, there is no spousal support payable under the SSAG, because the full child support is so high. The obligations for child support come first.

[163] The relationship was less than nine and a half years.

[164] Since March 2014, Andrew has been paying spousal and child support to Anna.

[165] Anna did work for two years- 2018 and 2019- and has had the benefit of rental income since 2016. No income has been imputed to Anna until 2020.

[166] Anna has made very perfunctory efforts, through electronic employment opportunities, to apply for jobs. The court accepts the evidence of Andrew that these efforts perhaps amounted to no more than one hour a week.

[167] Anna is healthy and has two teenagers who are in full time attendance at school.

[168] The total amount that Andrew has paid for the last ten years has been more than adequate to cover both compensatory and any non-compensatory claims that Anna has.

[169] Spousal support should terminate on March 31, 2022.

[170] Andrew’s overpayment from April 1, 2022 through 2023 is $29,232. The tax consequences for this overpayment should also be addressed by the parties when reimbursement is made.

Conclusions:

[171] In summarizing the above findings, the court orders that:

1. Anna’s income is imputed at $84,000 for child and spousal support purposes.
2. Andrew’s income is imputed as presented in the income valuation from Ornstein Valuators, for the purpose of child support.
3. Andrew shall continue to pay table child support in the amount of $2,232. per month, per CSG, based on imputed income of $170,521 per year, as per his 2022 income.
4. Mutual annual disclosure by July 30th annually and CSG to be updated accordingly.
5. Andrew shall pay child support arrears to Anna of $9,804 for the period of April 1, 2022 to April 30, 2023.
6. Anna shall pay Andrew child support arrears for the period of January 1, 2020 until March 31, 2022, in the amount of $19,200, based on imputed income as set out above.
7. Spousal support terminates March 31, 2022. Anna shall pay Andrew the amount of $58,496, for reimbursement of over payment of spousal support, based on the income of Anna and the income of Andrew for spousal support purposes, and Andrew’s payments to date.
8. Andrew will pay 67% of the net amount owing now or in future for the daughter’s cochlear implants, after taking into account subsidies, grants, and benefits, upon receiving the invoices or receipts. Anna will provide copies of all applications, grants, or subsidies relating to this expense in a timely manner.
9. Future section 7 expenses are to be shared proportionate to incomes, and only if agreed upon in writing in advance. Anna’s income will be as imputed above or her line 150 income, which ever is higher.
10. Each parent should cover their own benefits’ insurance premiums.
11. From the date of this order, the parents should share proportionate to their incomes, any amounts for medical, dental, and extended health not covered by insurance.
12. A support deduction order will issue for enforcement through the Family Responsibility Office.
13. Post secondary tuition and reasonable expenses are to be shared: two thirds by the parents proportionate to their respective incomes and one third by the student.
14. All other claims are dismissed.
15. The parties are invited to suggest an arrears payment plan with their cost submissions.

Costs

[172] If the parties cannot agree on costs, Andrew can serve and file a cost submission of no more than 3 pages, excluding Bills of Costs and Offers, within 14 days of receiving this decision and Anna can reply with the same page limits, within 14 days. Service by email. One copy of both submissions to be filed by counsel for Andrew in the trial scheduling office.

[173] Thank you to the parties for such an efficient yet fulsome method of dealing with these issues.

Released February 28, 2024.

Signed: Justice Paulseth

[i] The court notes that if Anna was successful in obtaining retroactive CSG back to 2015 at Andrew’s valued income and her imputed income including rental income, the difference would be almost zero.