NEWMARKET COURT FILE NO.: FC-06-23372-00

DATE: 20120601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephen Paul Dover

Applicant

– and –

Deborah Lynn Timbers

Respondent

Unrepresented

Howard E. Warren, for the Respondent

HEARD: November 22 and 23, 2011

REASONS FOR DECISION

McDermot J.

Introduction

[1] This was a Motion to Change commenced by the applicant, Stephen Dover, on August 11, 2010. Mr. Dover seeks to vary spousal support payable to the respondent, Deborah Timbers under a separation agreement entered into by the parties on August 11, 2004. Under that agreement, Mr. Dover was to pay spousal support of $1,800 per month, as well as a $2,000 annual support payment for holidays and car insurance; he was also to provide medical and dental insurance for Ms. Timbers as well as support life insurance.

[2] The agreement contained certain events which would have the effect of terminating spousal support. It also contained a review clause entitling either party to a review on or after March 1, 2006. Mr. Dover says that one or more events have occurred which terminate spousal support under the agreement; in any event, he is entitled to a review of support. Finally, even if these events have not occurred or a review should not take place, he states that there have been drastic and unforeseen changes in circumstances which would entitle him to change spouse support as his business income has declined precipitously since 2009.

[3] Mr. Dover also made tuition payments of over $30,000 so that the parties’ son, Tyson Dover, could attend at the Toronto Film Institute. He says that the respondent’s share of that payment is $9,000 and he claims reimbursement for this amount from the Respondent. Ms. Timbers does not deny that Mr. Dover paid these educational expenses for their son; she refuses payment because she says that she was not consulted as required under the Separation Agreement.

[4] The trial of this matter took approximately two days. Both parties gave evidence. The applicant also called his present wife, Alenka Dover, to testify about their present financial circumstances. The respondent called her friend, Colin Haskin, to testify about the nature of their present relationship.

[5] Although Mr. Dover states that there has been a material change in circumstances entitling him to a variation of support, it was common ground that the agreement allowed a review of spousal support in any event, and accordingly Mr. Dover did not need to show a material change prior to a consideration of a variation of support. This does not mean, however, that counsel for Ms. Timbers was acknowledging a material change had taken place; it was the position of Ms. Timbers that no change had taken place, and the support should continue unchanged.

[6] For the reasons set out below, I have determined that spousal support and other benefits under the agreement will be terminated as of January 1, 2011. I have further determined that Mr. Dover is not entitled to any contribution to the tuition expenses of Tyson for the Toronto Film School.

Background Facts

[7] Mr. Dover is a 53 year old businessman. For most of the marriage, and until recently, he operated a flooring business, most recently known as Dover Carpet and Flooring. He says, however, that this business is no longer in operation, and he has recently obtained a sales position with Sears selling flooring products. Ms. Timbers is the same age; she works part time at Longo’s, which is a “higher end” grocery store, as a product demonstrator. These parties were married on July 30, 1977. The parties separated in May of 2003 after nearly 26 years of marriage.

[8] This was a traditional marriage. The parties had four children, all of whom are presently independent. Two of those children, Kyla (and her child) and Tyson, live with the applicant; the remaining two children, Lindsay and Ryan, have their own residences. Ms. Timbers has a grade 10 education and hairdressing school. It was common ground that she was the primary caregiver of the children and was home with the children during their formative and younger years.

[9] Mr. Dover did not give evidence about his education, but I assume that he did not have more than his high school diploma as he began working in his father’s business at age 19 after his father had a heart attack. He worked there until his father’s death 10 years later. The business was then transferred by the estate to Mr. Dover’s mother. The evidence about what transpired after Mr. Dover’s father’s death was confusing and conflicted. Mr. Dover gave evidence that he left his father’s business about six years later, in 1992, due to a falling out with his mother. However, Ms. Timbers stated in evidence that he had fired his mother and stayed in the business; in cross examination, Mr. Dover attempted to obtain an admission from Ms. Timbers that, because of business reversals, he was forced to lay his mother off.

[10] In any event, Mr. Dover gave evidence in cross examination that by 1992, he had incorporated his own company, B.D. Carpet Corporation. He operated that company for a number of years until 1996 when he says that he had financial problems arising out of the economy which resulted in the bank calling in the business loan. At that time, Mr. Dover set up a sole proprietorship named Dover Carpet and Flooring; it eventually became the corporation that he operated until recently.

[11] By this time, Ms. Timbers was also involved in a business which was a tanning salon named Dynamic Body. This business was begun in 1990 or so, and the applicant and the respondent were partners with another couple, Barry and Shauna Niwa. Ms. Timbers worked in this business booking appointments and overseeing staff. It was unclear from the evidence as to what eventually happened to this business.

[12] In any event, it was common ground that although Ms. Timbers had been a nominal employee in B.D. Carpet, she had little to do with that business. She occasionally came in to do minor work; otherwise, the business was run by her husband.

[13] During this time, the parties owned a home jointly located on Willowfarm Lane in Aurora which was purchased in 1990 and in which the parties lived for about 6 years. Ms. Timbers discovered that her husband’s business was in trouble when she was suddenly told in 1996 that the parties had to downsize to a smaller home; as well that home would have to be put into Ms. Timbers’ name alone as would be the new business to be operated by the applicant. Ms. Timbers states that the Willow Farm Lane home was quickly sold and that a smaller home was located and purchased on Timpson Drive in Aurora. The parties lived in that home until separation.

[14] The applicant operated Dover Carpet and Flooring; the respondent confirmed that she was the nominal owner of the business, but again had little to do in the operation of that enterprise. However, in 2000, the parties purchased together a Chem Dry carpet cleaning franchise for $37,500. Ms. Timbers purchased that franchise along with her husband; however, she says that she was not really involved in it, and was presented with a number of documents to sign when the transaction occurred. She acknowledges, however, attending at the training sessions set up by Chem Dry in British Columbia. Again, it is unclear as to what eventually happened to this business other than it was transferred to Mr. Dover on separation.

[15] As noted, when the parties separated in May, 2003, they were residing in the home on Timpson Drive. Mr. Dover was operating Dover Carpet and Flooring. Ms. Timbers retained counsel who wrote to Mr. Dover on November 13, 2003; by August 11, 2004, the parties had negotiated and executed a comprehensive separation agreement which resolved all of their differences.

[16] In the agreement in question, all of the property issues were settled between the parties by a transfer of $200,000 to Ms. Timbers from the matrimonial home which was agreed to be sold. Certain debts of both of the parties were paid off from the sale of the home, and Mr. Dover agreed to assume a number of other debts. Mr. Dover received what was left over from the matrimonial home sale proceeds after payment of the debts and payment of the $200,000 to Ms. Timbers. Ms. Timbers was to transfer to the Applicant her shares in 1414314 Ontario Inc. (presumably the corporation that ran Dover Carpet and Flooring) and her interest in the Chem Dry franchise. Ms. Timbers also agreed to transfer her interest in the family cottage that Mr. Dover had obtained from his father; she stated that she did this on the basis that Mr. Dover would eventually transfer the cottage to the parties’ children although this was not set out in the agreement. The cottage is now jointly owned by Mr. Dover and his present wife, Alenka Dover.

[17] Both parties rely upon the spousal support provisions in the agreement. Under para. 8.1, Mr. Dover agreed to pay indefinite support of $1,800 per month to Ms. Timbers; he also agreed to pay both the wife’s car insurance as well as a further $2,000 per annum to cover the cost of a vacation so long as he had to pay spousal support (paras. 8.3 and 8.4). The agreement further provided that Mr. Dover would maintain support life insurance in the amount of $250,000; that again was to be maintained so long as spousal support was payable. There was a further provision requiring the applicant to maintain extended medical and dental coverage for herself; she acknowledged that she had released Mr. Dover from this clause when she obtained her own coverage.

[18] The clauses regarding the termination of spousal support which are in issue in this proceeding are paras. 8.2 and 8.5 which read as follows:

8.2 Spousal Support shall be paid by the Husband to the Wife until one of the following events occurs, whereupon it shall end:

i) The Wife remarries

ii) The Wife cohabits with another man for a period of 60 days;

iii) The Wife has an income (from sources other than spousal support) in excess of $3,000 per month.

8.5 The Wife shall make reasonable efforts to become less financially dependent upon the Husband. The Wife shall inform the Husband in a timely manner of any change in her employment status and shall provide particulars of income from any source. The matter of spousal support shall be reviewed by the parties on or before March 1, 2006. If the parties cannot agree on the matter of continued spousal support or the quantum thereof, they shall attempt to resolve their differences in accordance with the provisions of the (sic.) paragraph 18. If the matter remains unresolved after negotiation and mediation, either party may apply to a court of competent jurisdiction to have the issue in dispute adjudicated.

[19] As noted above, there is also an issue between the parties respecting the payment by Mr. Dover of some $30,000 towards the tuition paid for Tyson to attend the Toronto Film Institute. The agreement stated that add-ons would be borne by the parties on a proportionate to income basis. The agreement further provided as follows:

7.5 The parties shall discuss in advance and agree upon the adjusted support payment or adjusted Add-ons. If the parties cannot agree on the expenses that are special or extraordinary, or the actual sharing of the expenses or the Table amount they shall attempt to resolve their difference in accordance with the provisions of the (sic.) paragraph 18. If the matter remains unresolved after negotiation and mediation, either party may apply to a court of competent jurisdiction to have the issue in dispute adjudicated. Where one party pays for the full amount of agreed upon Add-ons for a child, the other party shall reimburse the paying party for his or her share of the expense within 7 days of receiving notice and particulars of the expense.

7.6 After the child have (sic.) contributed as much as he is able from summer employment, scholarships, and bursaries available to him for tuition fees, text books, supplies and equipment (not to include school residence), the Husband and Wife shall share proportionate to their incomes the balance of the foregoing expenses for a post-secondary education for the child to the extent of one four year degree or diploma in an Ontario university or college. Where one party pays for the full amount of education expenses on behalf of the child, the other party shall reimburse the paying party for his or her share of the expense within 7 days of receiving notice and particulars of the expense. If in the opinion of either party, the post-secondary education costs for the child are unreasonable or in dispute, they shall attempt to resolve their differences in accordance with the provisions of paragraph 18. If the parties cannot agree on the appropriate division of the contributions to the post-secondary education costs of the child, if any, either party may apply to a court of competent jurisdiction to adjudicate the issue.

[20] The parties were divorced in 2006. Since separation, Mr. Dover has met a new partner. The Applicant remarried in April, 2007; his present wife, Alenka Dover, testified at the trial. They have been cohabiting since April, 2004.

[21] When Mr. Dover met Alenka, she was residing in a residence that she owned at 8 Smith Street in Bradford. She eventually purchased a second home located at 30 Mahogany Court in Aurora into which she and Mr. Dover moved. Those homes were sold to buy a condominium located at 122 Stonecliffe Crescent in Aurora in November, 2005. The entire down payment for that property came from Mrs. Dover’s two properties; the arrangement was that it would be jointly owned but that Mr. Dover would pay the mortgage. Eventually, for reasons arising from Mr. Dover’s financial problems, the parties realized that they could not afford Stonecliffe Crescent and that they had to sell this home; in December 19, 2009, Mr. and Mrs. Dover purchased a residence located at 60 Dowson Loop in Newmarket, a move Mr. Dover described as a “downsize.”

[22] Prior to marrying Alenka Dover, Mr. Dover had purchased a home for his two daughters which was located at 42 Kemano Road, also in Aurora. Both of his daughters had young children; Lindsay was a single mother, and Kyla had a husband, Tim, and a young child. The home was purchased with a down payment raised by way of mortgage on Mr. Dover’s cottage property and a high ratio mortgage on the Kemano Road property. Mr. Dover said that he needed at least $1,500 per month to carry the property; accordingly, each adult living there was to pay $500 per month. Eventually Kyla and Tim split up and the two daughters could not afford to pay $750 apiece. They moved in with their mother; Kemano Road was sold on December 14, 2009 and the net proceeds were used to pay debt.

[23] The respondent has also re-partnered; she met a neighbour, Colin Haskin, after purchasing her new home after separation. They were friends initially, but are now involved in an intimate relationship; Mr. Haskin described them to be “lovers.” Mr. Haskin worked at the Globe & Mail but retired in 2009; in September of that year, Mr. Haskin sold his home and moved to Frankford, Ontario, which is near Trenton. Ms. Timbers assisted him in that move. Ms. Timbers has accompanied Mr. Haskin on several holidays, including a six week holiday to New Zealand. She continues to live in Aurora, but she works three days per week and she and Mr. Haskin spend time together at both residences when she is off of work. Mr. Dover submits that they are cohabiting within the meaning of para. 8.2 (ii) of the separation agreement; Ms. Timbers and Mr. Haskin are both adamant that they do not.

[24] Ms. Timbers purchased her present residence at 79 Devins Drive in Aurora with the proceeds of the sale of the matrimonial home received pursuant to the separation agreement. She continues to live there with her son, Tyson and her daughter Kyla and her child. She receives no rent from either of her children although she said that they occasionally pay a bill that is found lying around in the home.

[25] Ms. Timbers did obtain employment after separation, but although she came close to reaching the $3,000 per month threshold set out in the separation agreement, she has not done so, and in fact her income increased after separation and then dropped off sharply. It is her evidence that after separation, she initially worked part time in a small coffee shop; she worked there until she obtained a seasonal position with Clublink, which is a golf course and resort, in March, 2005. She obtained that job through connections that she had with some members of the board of Clublink. She eventually obtained full time work at Clublink during her third season there, when she took over for a maternity leave for another person.

[26] Ms. Timbers did not like the job at Clublink. She says that she ended up working 60 hours per week without being paid for overtime. She says that she was promised advancement to a management position, a promise that was eventually breached. She made a complaint to human resources; that complaint was rejected. Her income from that employment, however, came close to the $3,000 per month figure in the separation agreement; in 2007, Ms. Timbers’ income from Clublink was just over $32,000 per annum.

[27] Because of perceived betrayals by her employer and the negative working conditions, Ms. Timbers decided to look for another job. She found another full time position as an event coordinator at Brickenden Speakers Bureau and left Clublink for that position on August 27, 2008. She worked at Brickenden briefly, but was then approached by contacts that she knew from another firm, Kenilworth Media, which is a publishing firm. She was hired as a travel coordinator on September 8, 2008. She understood that her duties were to make travel arrangements for staff to attend at conventions and for business trips.

[28] Unfortunately, the position was apparently misrepresented. She found herself essentially working in a call centre; she was on a quota to renew a certain number of subscriptions to trade publications. She was constantly reprimanded; she spoke of an event where the power failed and staff members were berated for not working when the lights were out and the phones not working. She felt that she was constantly in trouble for no good reason. She did not like the drive to work to the offices on Highway 7. One day, Ms. Timbers was reprimanded for not coming into work 15 minutes prior to her start time; she had only come in at 8:25 rather than at 8:15. She quit the job that day. Her record of employment indicates that she worked for Kenilworth for just over two months, and that she left that job on November 7, 2008.

[29] After leaving Kenilworth, Ms. Timbers was unemployed for nearly 9 months. She obtained her present position at Longo’s Supermarket in August, 2009. This was a part time job as a food and product demonstrator. She works 3 days a week. She states that she also sometimes works in the kitchen at Longo’s; she has also obtained another part time job, but gave no particulars as to that job or the income that she might make from it. She states that there are no full time positions as a product demonstrator at Longo’s and she cannot take another full or part time job as she has to be on call to go to the company’s offices to be introduced to new products to demonstrate. She says the job is stressful but that she enjoys her work. She has no plans to look for other work or to change this position; in her own words, she says that she has found her “niche.”

[30] Unfortunately, Ms. Timbers’ income has shrunk substantially as a result. Her income from employment (excluding spousal support) since 2007 is as follows:

2007 $32,388.74

2008 $28,433.29

2009 $3,391.19

2010 $11,538.55

[31] Ms. Timbers states that her income as set out for 2010 is as good as it gets; she does not expect that there will be any betterment in her position, especially as she is not presently looking for full time work.

[32] Mr. Dover has also suffered decreases in income. The business had both a retail element and a commercial element; the retail element involved sales of carpeting and broadloom; the commercial element was the supply and installation of commercial carpeting, mostly for the hotel industry.

[33] Regarding the retail element, Mr. Dover states that this part of the business is essentially dead. He had retail premises on Yonge Street; those premises were closed in April, 2008 when Mr. Dover moved his retail business to a smaller unit on Mosley Street in Aurora. The move was due to increased competition from big box stores; Mr. Dover states that it just did not make sense to keep the larger store open. He says that business continued to decline; he moved to a home office to save rent in January, 2010. He states that he presently has no retail business.

[34] Mr. Dover also had a commercial element to his business. He installed carpets in newly built hotels as well as for hotel renovation projects. Mr. Dover states that his carpet installation business has declined precipitously as a result of the 2008 recession. When that recession hit in late 2008, he says that he lost all of his installation jobs for newbuilds; he was left with income from hotel renovations. He had two large clients, Comfort Inns and Westmount Hospitality. In November, 2009, he lost Comfort Inns to a competitor; at that time, he had to lay off his son, Ryan, who had been working for him. In the fall of 2010, he lost his last client, Westmount Hospitality, due to a dispute over an invoice regarding the installation of carpeting at a location in Calgary. Mr. Dover states that because of the circumstances surrounding the loss of this client, he does not expect this business to come back.

[35] As a result, Mr. Dover says that he has been suffering financially. He states that he has been looking for numerous jobs including jobs at Lowes and Home Depot; he was recently hired at Sears as a commissioned salesperson. He has cashed in RRSPs and has little or no business income at present. He presently expects to make about $30,000 annually from his present employment at Sears.

[36] Mr. Dover’s business income in the past number of years has decreased substantially. The financial statement filed in this proceeding and the exhibits indicate his income to be as follows:

2004 $79,000

2005 $100,000

2006 $100,000

2007 $143,000

2008 $75,954

2009 $44,933

2010 $14,239

[37] The last few years have seen Mr. Dover’s income being made up of cashed in RRSPs rather than income from Dover Carpets. In 2010, Mr. Dover disclosed no business income whatsoever.

[38] In 2006, the parties’ son, Tyson, was having difficulties. Mr. Dover agreed to send him to the Toronto Film Institute at an estimated cost of $30,000. He says that he called the Respondent to advise her that he was doing this; he later e-mailed her requesting payment but only after Tyson graduated. Tyson attended the Toronto Film Institute between January, 2006 and March, 2007. The cost of $30,000 is undisputed; Ms. Timbers, however, disputes any obligation to pay for the school because she says that she was not consulted about the costs prior to the expenditure as required in the Separation Agreement. She states that Tyson had told her about the schooling but said that his father was paying for the schooling. She said she only got a demand for payment after the schooling was finished.

[39] Mr. Dover says that he called Ms. Timbers to advise her of the educational plan for Tyson shortly before Tyson began to attend the Toronto Film Institute in January, 2007. He demanded payment after the completion of Tyson’s course of studies, requesting some $9,000 for her proportionate share of the educational costs. He suggested that Ms. Timbers pay for the education by foregoing the vacation amounts in the Separation Agreement; she refused. He ceased paying the $2,000 per annum and Ms. Timbers filed the agreement and registered it for collection by the Family Responsibility Office.

[40] The support was brought into good standing, but further defaults occurred in 2010. Mr. Dover has not paid support since January, 2011. He has lost his driver’s license; apparently he did not act quickly enough to obtain a refraining order.

Analysis

[41] The within motion to change was brought about not only as a result of the terms of the separation agreement that Mr. Dover says ended spousal support; it was also brought because Mr. Dover states that his business has declined sharply in the last two years, and most significantly in 2010. Accordingly, the issues before me for consideration are as follows:

a) Is Mr. Dover entitled to a termination of spousal support and other entitlements according to the terms of the Separation Agreement dated August 11, 2004?

b) Is Mr. Dover entitled to a change in support through either a review of the support permitted under the separation agreement or a material change in circumstances?

c) Is Mr. Dover entitled to a contribution by the respondent to the cost of Tyson’s tuition and expenses for the Toronto Film Institute?

[42] I shall consider each of these issues in turn.

(a) Is Mr. Dover entitled to a termination of spousal support and other entitlements according to the terms of the Separation Agreement dated August 11, 2004?

[43] There are two provisions in the Separation Agreement that Mr. Dover relies upon for a termination of support. The first is that Ms. Timbers is now cohabiting with another man which would result in a termination of support under para. 8.2(ii). As well, Mr. Dover states that the Respondent is able to earn income in excess of $3,000 per month, and that para. 8.2(iii) of the agreement combined with Ms. Timbers’ failure to become self sufficient as required under para. 8.5 of the agreement disentitles her to ongoing spousal support.

(i) Is Ms. Timbers cohabiting with another man as contemplated by para. 8.2(ii) of the Separation Agreement?

[44] Ms. Timbers acknowledges that she has, for some time, been in relationship with Colin Haskin, who also testified at the trial. Mr. Haskin lived in Ms. Timbers’ neighborhood, but he retired from his job as a reporter with the Globe & Mail and moved to Frankford, Ontario in September, 2009.

[45] Ms. Timbers and Mr. Haskin have taken holidays together, and their children spend time together with both of them at their respective residences. They also spend time together at each of their homes, with Mr. Haskin spending time with Ms. Timbers at her residence in Aurora, Ontario, and Ms. Timbers staying with Mr. Haskin in Frankford. Ms. Timbers testified that she spends about three days per week with Mr. Haskin.

[46] On the other hand, both of these parties continue to maintain separate residences. They do not pool their resources; they did have a joint account to pay for a holiday together, but Ms. Timbers testified that this account was now closed. They state in their income tax returns that they are single. Mr. Haskin was adamant that he does not reside with Ms. Timbers; he notes that he does not help her financially and that she paid for her share of the holidays they took together without assistance from him. He states that if Ms. Timbers bought items for his new residence, he always reimbursed her for these expenses. He notes the numerous cell phone calls to him from Ms. Timbers which illustrate the time spent by these parties apart.

[47] Mr. Dover notes that parties do not have to have the same address to be residing together. He points to the cases decided under s. 29 of the Family Law Act,[^1] which have considered the issue of when cohabitation took place for the purpose of determining liability for spousal support under that section. He states that parties have been found to be cohabiting notwithstanding the fact that they have separate residences: see Campbell v. Szoke, 2003 2291 (ON SC), [2003] O.J. No. 3471 (S.C.J.) as aff’d by 2005 1046 (ON CA), [2005] O.J. No. 154 (C.A.) and Stephen v. Stawecki, 2006 20225 (ON CA), [2006] O.J. No. 2412 (C.A.).

[48] Although the parties may very well be in a “long term committed relationship” as discussed in Juvatopolos v. Juvatopolos, 2004 34843 (S.C.J.), this does not answer the question of whether Ms. Timbers “cohabits with another man” within the meaning of para. 8.2(ii) of the Separation Agreement. A number of cases were cited by counsel in this regard; Mr. Warren relied upon Molodowich v. Penttinen, 1980 1537 (ON SC), [1980] O.J. No. 1904 (Dist. Ct.) which set out a number of criteria which indicated spousal cohabitation. Some of these indicia were later adopted by Fleury J. in Letford v. Letford, 2000 22453 (ON SC), [2000] O.J. No. 4061 (S.C.J.). They included such things as:

(i) the nature of the sexual relationship between the parties;

(ii) whether they prepared meals, maintained the premises or performed domestic chores together;

(iii) whether the parties participated in neighborhood and community activities together;

(iv) whether the parties made joint financial arrangements to pay household or other expenses or purchase property together;

(v) the attitude of the parties towards their children;

(vi) the appearance to the outside world; how did the parties hold their relationship out to outside observers?

[49] Unfortunately, not a lot of evidence was provided at trial respecting most of these criteria. It was confirmed that these parties had a sexual relationship; as well there was some evidence that Ms. Timbers had paid some household expenses for the residence maintained by Mr. Haskin in Frankford (although Mr. Haskin gave evidence that all of those amounts were repaid by him). Vacation costs were paid separately. The parties visited each other’s children on occasion and there were family get-togethers at both residences. No evidence was provided as to what the outside world thought of their relationship; however, the evidence was that both Ms. Timbers and Mr. Haskin filed their income tax returns as being “single”, which was an important criterion in both Letford, supra and Harbour v. Harbour, [2000] O.J. No. 2517 (S.C.J.).

[50] In all, the criteria noted above are important, but none are conclusive. As noted in Stephen v. Stawecki, supra, at para. 4, there is no “bright line” test possible:

The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant's argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. 1999 686 (SCC), [1999] 2 S.C.R. 3 in this area. We agree with the respondent that the jurisprudence interprets "live together in a conjugal relationship" as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 1980 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, 1996 8090 (ON SC), [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke 2003 2291 (ON SC), [2003] O.J. No. 3471 (S.C.).

[51] Karakatsanis J. made a similar statement in Campbell v. Szoke, supra, where he said:

52 The fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one's children: Thauvette v. Malyon (1996), 1996 8090 (ON SC), 23 R.F.L. (4th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under s. 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent, [2000] O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important.

[52] In that case, evidence was led as to how family and friends viewed the relationship; that type of evidence was not available in the present case. However, to me, as stated by Karakatsanis J., the reason for the parties maintaining separate residences is important in the present case. It appears to me that Ms. Timbers maintains her own residence for a number of reasons. Firstly, she testified that she enjoyed her job at Longo’s and that she did not intend to give that job up; accordingly, she is remaining in the home which she presently owns so that she can continue to work there. Moreover, she has two of her children living in the home and it was apparent from her testimony that she was not willing to make them pay rent or to move out into a separate residence. It was clear, in other words, that she did not intend to give up her own residence in order to cohabit with Mr. Haskin. To do so would mean giving up a job that she enjoys and to force her children to obtain their own residence. In fact, it was apparent that one of the reasons that Ms. Timbers wishes to continue to work part time is so that she can spend time with Mr. Haskin when she is off.

[53] These criteria are especially important in light of the fact that she continues to file her income tax noting a “single” status.

[54] It is recognized that they take holidays together and have an exclusive sexual relationship. However, Ms. Timbers and Mr. Haskin have, as far as I can see, maintained separate bank accounts and finances. They maintain, at an increased expense, separate residences. There is good reason for Ms. Timbers to have a long distance relationship with Mr. Haskin, including her job and her children. Accordingly, I find that it is not the intention of Ms. Timbers to cohabit with Mr. Haskin; nor do they cohabit together.

[55] Therefore, para. 8.2(ii) of the Separation Agreement is not engaged and support does not cease based upon that provision in the Agreement.

(ii) Is Ms. Timbers capable of earning $3,000 per month, and if so, does this bring spousal support to an end under para. 8.2(iii) and 8.3 of the Separation Agreement?

[56] Unlike many separated spouses of her age and position, Ms. Timbers embarked on her quest for self-sufficiency with more than average success. She obtained work with Clublink, and later succeeded in obtaining full time work with that employer. In 2007, while with that employer, she nearly crossed the threshold set out in para. 8.2(iii) of the Separation Agreement, earning well over $32,000 per annum.

[57] However, because of perceived betrayals by her supervisor, Ms. Timbers elected to take a job with another employer. In short order, she quit that job to take another with Kenilworth Media. She stated that this job was unpleasant; again she states that there was a betrayal as the job description was misrepresented when she accepted that job. After two months she left that job without having another position to move on to. It is acknowledged that, as a result, Ms. Timbers never earned $3,000 per month as provided for in the Separation Agreement, and she presently makes less than $1,000 per month.

[58] After this, there was a lengthy period of unemployment in excess of nine months. As she left the Kenilworth job voluntarily, she was presumably unable to collect Employment Insurance; however, she had also purchased tickets to go on a six week holiday to New Zealand with Mr. Haskin. Because of this holiday, which took place in May, 2009, Ms. Timbers did not obtain employment until well after her return, in August, 2009. That was when she obtained the job at Longo’s. About the part time job at Longo’s, Ms. Timbers stated that she had found her “niche”; she said in testimony that she found the job challenging and enjoyable, and wished to continue in that position.

[59] The evidence from Ms. Timbers about her employment at Clublink, and later at Kenilworth, was that she felt justified in leaving those positions. She defended her resignation based upon the fact that she was betrayed by both of those employers. She states that she was let down by her supervisor at Clublink, when he failed to give her the managerial position that she was promised, and purposefully embarrassed her in front of her fellow employees at a meeting when she thought they were about to announce her promotion. Later, she states that the terms of her employment at Kenilworth was misrepresented, and she ended up working in a call centre type of position with quotas in the sale of subscriptions to trade magazines.

[60] However, the other common factor with both of these positions was that she did not like the work that she was doing. Ms. Timbers was clear that her personal satisfaction with her employment is a major criterion for the job that she chooses or does not choose. She stated that one of the reasons that she left Clublink was the failure to advance and the fact that younger people got the promotions to management. She also complained about the fact that she had to work a lot of unpaid overtime and that she did not want to come in to do evening work. She stated that she disliked the stress of selling at the Kenilworth job and as well she did not like the commute to Highway 7 to get to work.

[61] I was particularly concerned about the evidence that Ms. Timbers gave about her present job at Longo’s. She stated that she did not wish to apply for other positions either inside or outside that employer because she had to be on call for her food demonstrating position. When noted that there was a new store at the Richmond Hill location, she stated that she did not want to apply for a job there because she would find it difficult to get to that location. When asked if she would give up her present job for a full time position, she stated that she would not; she stated that she had found her “niche” and enjoyed her job. She is not, as a result, looking for full time employment; her 2010 income of $11,500 per annum is for her as good as it gets.

[62] Almost as concerning is the fact that Ms. Timbers elected a lengthy period of unemployment so that she could accompany her partner on a six week trip to New Zealand. As a result, her income in 2009, excluding spousal support, was just over $3,300.

[63] One has to wonder, were spousal support not being paid, whether Ms. Timbers have elected to quit her job at either Clublink or Kenilworth; would she elect to continue to work at a part time job that she enjoys and would she have elected a nine month hiatus of unemployment between November, 2008 and August, 2009? I think not.

[64] It is apparent to me that when Ms. Timbers quit her position at Kenilworth, she well on the way to earning $3,000 per month as provided for in the Separation Agreement. In fact, in 2008, taking into account the fact that Ms. Timbers left her job at the beginning of November, 2008, it is apparent that she was making $2,800 per month in that year, nearly at the level of the $3,000 per month threshold in the Separation Agreement.

[65] Moreover, I find Ms. Timbers is in breach of paragraph 8.5 of the Separation Agreement, which is the clause which requires her to make attempts to become self-sufficient. After November, 2008, she apparently elected to go through a nine month period of unemployment. After that date she sought out and obtained a part time job. She is not looking for full time work and is not making “reasonable efforts to become less financially dependent upon” Mr. Dover as required in paragraph 8.5. The reason that she gives for not looking for full time work is because she enjoys the part time job that she has now and she does not see any reason why she should be forced to take other employment. The issue of whether one enjoys a job or not, or whether one likes a commute or not is not relevant, to any great extent, as to whether one should retaine a job or look for full time work, especially when another party is being asked to continue paying support to that individual and there is a duty on that support recipient to become self sufficient. One question that was never raised with Mr. Dover was whether he enjoyed his job selling carpeting or not; it was not relevant to Ms. Timbers’ right to support and to have Mr. Dover maximize his income; neither is her personal satisfaction with an employment position relevant to whether that job should be maintained to the exclusion of full time work and to her obligation under the agreement to become self sufficient.

[66] It is finally to be noted that Ms. Timbers apparently has the ability to work at a full time position such as the sale coordinator position that she had at Clublink and the events coordinator position that she obtained at Brickenden Speakers Bureau for which she left the Clublink position. Although this was a traditional marriage, Ms. Timbers in an admirable fashion obtained employment at Clublink and turned that into a full time position. Moreover, Ms. Timbers worked during the marriage in running the tanning studio business and did take the franchise training for the Chem Dry business. She appears to have had business acuity as demonstrated by her success in maintaining employment at Clublink.

[67] As such, Mr. Dover has laid the evidentiary basis to impute income to Ms. Timbers as it is apparent that she is presently unreasonably underemployed. It has been more than two years since she left the job at Kenilworth, and this is a sufficient period of time for Ms. Timbers to have obtained employment similar to that at which she worked at prior to November, 2009. She has admittedly chosen not to look for full time employment. I am prepared to find that she is presently capable of making $3,000 per month or $36,000 per annum and I accordingly impute that income to her.

[68] As such, I am prepared to find that Ms. Timbers “has an income (from sources other than spousal support) in excess of $3,000 per month” within the meaning of paragraph 8.2(iii) of the Separation Agreement and that, under that agreement, support should come to an end.

[69] I now intend to deal with the issue of whether, apart from the terms of the Separation Agreement, whether Mr. Dover’s circumstances warrant a change in support, after which I will deal with the disposition of the spousal support issue.

(b) Is Mr. Dover entitled to a change in support based either on review of the support pursuant to the separation agreement or a material change in circumstances?

[70] Although I have made a finding that under the terms of the agreement, the spousal support should come to an end, I wish to also consider the present circumstances of Mr. Dover and whether those circumstances would warrant a change in the support apart from the terms of the agreement. This is because, as the parties have divorced, my jurisdiction lies under the Divorce Act;[^2] as such a separation agreement is not necessarily binding upon the court unless it meets the objectives of that statute: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303.

[71] This was a compensatory award of spousal support; the intent was to compensate Ms. Timbers for the years that she was at home raising the children of the marriage. Mr. Dover was able to build up a successful business in the sale and installation of carpets; Ms. Timbers worked in a number of businesses formed by the parties, but had a limited set of skills when the marriage ended. She was able to eventually obtain full time employment which came to an end in 2008. However, based upon the respective incomes of the parties, she was clearly at an economic disadvantage when the marriage came to an end in 2003. This was reflected in the indefinite support award agreed to between the parties in the Separation Agreement. Were Mr. Dover today making the same income that he had traditionally made in the past, there would be a cogent argument that the ending of spousal support under the terms of the Separation Agreement might very well not meet the objectives of the Divorce Act, especially the compensatory provisions set out in s. 17(7)(a) of the Act.

[72] As such, the issue is whether Mr. Dover’s income dropped to the precipitous extent that he said that it did in the years 2009 and 2010. It was his evidence that competition from big box stores such as Home Depot resulted in the retail component of the business being reduced to the extent that retail premises on Yonge Street were downsized in April, 2011.

[73] He also gave evidence that he has suffered a severe reduction in the commercial element of his business which was the supply and installation of carpets to newly built commercial premises as well as providing carpets for hotel construction and renovation. He had several large clients, including Comfort Inns and Westmount Hospitality. At one point, he had his son working for him. In November, 2009, Mr. Dover lost Comfort Inns to a competitor; at that time, he had to lay off his own son. In late 2010, he lost Westmount Hospitality due to an error in a job which resulted in a Calgary hotel replacing much of the carpet installed. This does not appear to be a fiction; Mr. Dover filed a copy of the e-mail from his client advising of the error.

[74] As of 2010, he began to operate out of a home office and gave up his business premises. He states that his business deposits have dropped and that there has been no income from the business since October, 2010. His business bank accounts were filed; the business deposits in the years from 2008 to 2010 were as follows:

Year Deposit Amount

2008 $1,345,107.38

2009 $758,558.36

2010 $291,000.10

[75] Mr. Dover states that, as a result, he and his wife have had to downsize their home. He stopped paying support and lost his driver’s license. He has financial problems; he has been sued by the Toronto Dominion Bank which obtained a judgment against him for $18,717.12 in respect of his line of credit; that judgment was obtained in September, 2011. He filed his Equifax Report which appears to have been obtained in October, 2011; that indicates that there are a number of delinquent debts including Mr. Dover’s Bank of Montreal Mastercard, his Royal Bank Visa, his CIBC Visa and his TD Line of Credit noted above. Although he has worked with his wife, Alenka Dover, selling real estate, he says he has only been involved in several transactions and has earned little from that quarter. He has looked for work at a number of employers including several of the big box stores that he says drove him out of business. He now works selling carpeting at Sears; he says that his present annual income is about $30,000. He states that any income disclosed in any previous year after 2009 was from drawing down his RRSPs; he only has one RRSP worth $5,000 left which cannot be cashed in because it is subject to an RRSP loan.

[76] Mr. Dover was cross examined extensively by Mr. Warren. In particular, Mr. Warren focussed in on the numerous holidays taken by Mr. Dover throughout the past four or five years; he noted that in a number of years, the Applicant took numerous cruises which would have eaten up a substantial amount of his declared income. For example, in 2009, the same year Ms. Timbers took her New Zealand trip, the Applicant went on a cruise on the Queen Mary II which cost in excess of $7,000; this in a year that the Applicant was alleged to have made just under $45,000, the majority of which he stated came from RRSPs that were cashed in. This cruise was taken notwithstanding the fact that Alenka Dover had testified that she saw things declining at the end of 2008 and she and her husband downsized their home in December, 2009.

[77] Mr. Warren on behalf of the Respondent stated that the Applicant lived a lavish lifestyle, and that he has no right today to cry poor. He states that there is ample evidence of the fact that Mr. Dover has not been wholly honest with either the court or Ms. Timbers as to what his actual income is. He notes that in some years, Mr. Dover would spend amounts on holidays close to what his net income would be after taxes. He notes as well that the Applicant was taking luxury holidays on the Queen Mary II at the same time as he states that his business was failing and he and Alenka Dover were forced to downsize their residence. He states that Mr. Dover was “living like a king” in 2008 and 2009 while accruing support arrears; he states that the evidence shows that Mr. Dover has adjusted his income in order to support his position at trial.

[78] It is apparent to me that Mr. Dover did live a lavish lifestyle at one point in time; he took numerous holidays and luxury cruises and the business had a large gross income. He not only spent lavishly on himself and his present wife, Alenka Dover; he also spent money on his children. He sent his son to the Toronto Film Institute and hired him as an employee of his business. He purchased a home for his two daughters; although they paid rent, he was able to raise the funds to purchase the home so that they would have a place to stay. He was obviously, for much of the time after separation, living a more affluent lifestyle than was Ms. Timbers.

[79] However, I do find that Mr. Dover’s evidence regarding his business problems to be credible. He has provided written evidence regarding the loss of Westmount Hospitality as a client of his business. He was forced to lay off his son and has suffered judgments against him. His credit rating is a mess as disclosed in the Equifax report. The summaries provided by Mr. Warren indicate that his business deposits shrank precipitously during 2009 and 2010; by the end of 2010, there were no business deposits. He provided evidence of a job search and is now working as a commissioned sales person for Sears Canada. He cashed in RRSPs in 2009 and 2010.

[80] Mr. Warren would have me believe that all of this was purposeful manipulation designed to give me the false impression of financial distress. However, were this true, Mr. Dover’s manipulation of the facts will have put him in an extremely uncomfortable personal situation. He has a judgment against him and he has lost his driver’s license. He sells carpeting at Sears. This is not a situation where an individual continues to live a lavish lifestyle while working at a business while claiming to have no income or funds. In the present case, there was no evidence that Mr. Dover now takes the holidays that he used to take. There was no evidence that he continues to work at selling or installing carpeting in another business or from another business premises. There is no evidence that Mr. Dover continues to live the lavish lifestyle that he once led; he cannot presently use the Porsche motor vehicle that he purchased during better times as he lost his driver’s license because of his failure to pay support; he testified that he cannot unload the lease.

[81] This is born out by the changes in the parties’ respective financial situation even during the course of this litigation. Although Ms. Timbers testified that she had to borrow some $20,000 to pay her legal fees, increased her line of credit by some $1,900 and also had to cash in her mutual funds, this pales in comparison to Mr. Dover’s situation. The two financial statements filed by him indicate that when he commenced this litigation in 2010, he had $18,500 in credit card debt and another $18,000 outstanding for his line of credit, all of which was being paid. When this matter came up for trial, his credit card debt had jumped to $84,700; the line of credit and the credit cards are now in default.

[82] Moreover, this is not an individual who has been resistant to paying support throughout the period of time since the parties separated. In fact, Mr. Dover paid support without complaint until the parties got into a dispute about Tyson’s tuition expenses; then Mr. Dover only withheld the vacation component of his support, and continued to pay the ongoing support. Although there was evidence of a number of defaults taking place after 2009, the Respondent’s own income tax return from 2010 appears to indicate that the support was paid in full during that taxation year. This is not a situation where a payment history is evidence of the support payor’s refusal to pay spousal support or which indicate that the Applicant was intent upon avoiding his obligations to his former wife. Mr. Dover had a good support payment record until recently which negates the Respondent’s position that Mr. Dover intentionally manipulated the facts to avoid payment of support.

[83] Mr. Warren states, however, that I should impute income to Mr. Dover similar to that which he made when the Separation Agreement was negotiated. He states that I should do this because Mr. Dover has not been wholly forthright with the court, and has failed to make proper disclosure. He notes that Mr. Dover had failed to provide a credit application for the lease of a Suburu in 2008 for his son; he also failed to have an appraiser of his home complete an interior inspection.

[84] Mr. Dover did, however, eventually produce the Suburu credit application. The application is dated June of 2008 and it stated that his business income was $150,000 per annum with gross annual sales from his business of $1.2 million. Mr. Dover’s business deposits for that year were actually $1,345,107.38 and his taxable income that year was $75,954. Mr. Dover’s previous years’ income was $143,000. The credit application discloses an accurate representation of Mr. Dover’s income at that time and did not show that he had understated his income to the court.

[85] It is correct that Mr. Dover only provided drive by appraisals of both his cottage and the Dowson Loop properties; however, the appraisal for the cottage notes that it is “superior” to the surrounding sales and that it has a substantial value; in any event I can hardly see how the value of these properties are evidence of the Applicant’s ability to earn income to pay support.

[86] Accordingly, Mr. Warren has not provided an evidentiary basis upon which to draw a negative inference against Mr. Dover or to impute income to him. I do not find that there is sufficient evidence allowing me to impute income to Mr. Dover as requested by Mr. Warren.

[87] I accordingly find that Mr. Dover’s business has essentially failed, and that Mr. Dover’s income is presently $30,000 per annum which is his declared income from Sears. I find that there has been a material change in circumstances which, apart from the terms of the Separation Agreement, would warrant a variation in spousal support under s. 17 of the Divorce Act.

[88] Mr. Dover has asked that I reduce support as of January, 2010. There is no evidence that this is an appropriate date for the elimination of support. I am going to bring spousal support to an end as of January 1, 2011; as noted above, I believe that under the circumstances, it would have been reasonable for the Respondent to have achieved an income of $3,000 per month two years after she left her employment at Kennilworth in November, 2008. Accordingly, an appropriate date for the termination of the Applicant’s spousal support is January 1, 2011.

(c) Is Mr. Dover entitled to a contribution by the respondent to the cost of Tyson’s tuition and expenses for the Toronto Film Institute?

[89] Both parties gave evidence about the fact that Mr. Dover had borne the cost of Tyson’s expenses for the Toronto Film Institute in from January, 2007 to March of 2008. At the time, Tyson was in difficulties with the law. There is no issue taken with the evidence given by the Applicant that he had discussed the issue with Tyson and agreed to pay for Tyson’s tuition and expenses so that Tyson could attend the Institute. No serious issue is taken in respect of the costs claimed by Mr. Dover for the Toronto Film Institute which he says were in the range of $30,000.

[90] The major concern expressed by Ms. Timbers in respect of this particular expense is that she says it was not discussed with her as required by para. 7.5 of the Separation Agreement, which provides, in part, that “[t]he parties shall discuss in advance and agree upon the ... adjusted Add-ons.” Ms. Timbers states that without this prior consultation, Mr. Dover has no right to make a claim for her proportionate share, if any, of the tuition.

[91] The evidence of the parties conflicts in this respect. Mr. Dover states that he did call Ms. Timbers about the Film Institute costs shortly before Tyson began school to advise her of what he was doing and that he was paying for Tyson’s attendance at the Film Institute; he states that she agreed that Tyson could attend at the Film Institute. In May, 2008, the Applicant wrote to Ms. Timbers and noted that he had paid $32,594.15 for Tyson’s costs at the Institute; he also stated that he was requesting reimbursement of $8,145.54 for her share of the expenses.

[92] Ms. Timbers acknowledges having received that e-mail. She denies that there was any phone call from Mr. Dover prior to Tyson going to the Institute. She says that Tyson told her that his father was paying all of the costs of the Film Institute; she says that she did not understand that Mr. Dover was looking to her for reimbursement until she received the e-mail dated May 7, 2008 noted above.

[93] I cannot possibly find that Mr. Dover complied with para. 7.5 of the Separation Agreement even if we accept Mr. Dover’s evidence at face value. He states that he made a telephone call to his former wife; that hardly qualifies as attempting to “discuss in advance and agree upon” the expenditure as required by the Agreement. Moreover, one can hardly see how the parties could reasonably discuss a proposed expenditure in excess of $30,000 over the telephone shortly before commencement of the course. This is especially so in light of the fact that part of the determination of the post secondary educational costs of a child involves the available contributions by the child as set out in para. 7.6 of the Separation Agreement.

[94] Accordingly, I find that, even on Mr. Dover’s evidence, the monies were expended for Tyson’s attendance at the Toronto Film Institute without any sort of effective notice to Ms. Timbers or input from her as contemplated by the Separation Agreement.

[95] Mr. Dover states, however, that this does not matter. He states that obligation to pay the proportionate share of post secondary educational expenses is absolute; he relies upon para. 7.6 of the Agreement which states, in part, “Where one party pays for the full amount of education expenses on behalf of the child, the other party shall reimburse the paying party for his or her share of the expense within 7 days of receiving notice and particulars of the expense.” He states that the import of this clause is that, if he has paid educational expenses for his child, Ms. Timbers “shall reimburse” him for her share of the expenses. There is no room for debate.

[96] In asserting this position, he ignores the remainder of that clause which states that a party may argue whether or not the costs are “unreasonable”; this means that the obligation is not absolute in nature. Moreover, it is contemplated that the child would contribute to the expenses to his or her maximum ability. There is obviously an issue as to whether the course taken by Tyson at the Toronto Film Institute is a “one four year degree or diploma in an Ontario university or college” within the meaning of paragraph 7.6.

[97] Finally, and most importantly, the clause refers to the proportionate sharing between the parties of the “foregoing” expenses, referring back to the expenses to be discussed between the parties under para. 7.5 of the Agreement noted above. It is arguable that without a reasonable discussion between the parties and effective notice being provided, the claimed expense cannot be shared because it does not meet the definition of a “foregoing expense” which was an expense to be agreed upon or otherwise determined under para. 7.5 of the Separation Agreement. Without such determination, it is arguable that the expense is not to be shared on a proportionate basis under para. 7.6.

[98] This court considered a similar situation in Kougioumtzidis v. Fontana, [2007] O.J. No. 4847 (S.C.J.); there an interim order provided that if the parties could not come to an agreement on an extraordinary expense, that issue would be determined by way of motion. A motion was not brought, and the mother enrolled the child in a Montessori School and demanded repayment. P.A. Daley J. made a finding that the “applicant unilaterally enrolled the child in these Montessori schools, without the prior knowledge or consent of the respondent, and without having brought any motion for the determination of this issue as required by the order of Justice Mossip” and accordingly, “the respondent should have no liability for this expense.” [see para. 55 and 56]. See also Levien v. Andrews, [2006] O.J. No. 213 (O.C.J.) and Luftspring v. Luftspring, [2004] O.J. No. 1538 (C.A.), both of which stand for the proposition that a spouse should not have to bear extraordinary costs not discussed with him or her beforehand, or otherwise not approved by the court in an orderly fashion.

[99] Accordingly, I find that the Applicant unilaterally and without consultation, enrolled Tyson in the Toronto Film Institute. He did not comply with the notice requirements under the Agreement, and did not otherwise seek the approval of the court as contemplated by the Separation Agreement. As such, the costs of the Toronto Film Institute incurred by the Applicant are not claimable from Ms. Timbers under paragraph 7.6 of the Separation Agreement or otherwise under the Child Support Guidelines.^3

Order

[100] Accordingly there shall be a final order as follows:

(a) Para. 8.1 of the Separation Agreement dated August 11, 2004 shall be varied to provide that no further spousal support thereunder shall be payable by the Applicant to the Respondent as of January 1, 2011.

(b) Any and all arrears which have accrued from January 1, 2011 on are hereby rescinded.

(c) The Applicant’s claim for reimbursement for Tyson’s costs of the Toronto Film Institute is dismissed.

[101] The parties may provide written submissions as to costs, with the Applicant providing written submissions within 20 days of the date of these Reasons for Judgment and the Respondent providing reply written submissions on a 10 day turnaround. Costs submissions not to be more than 5 pages in length, not including any Offers to Settle and Bills of Costs.

McDermot J.

Released: June 1, 2012

[^1]: R.S.O. 1990, c. F.3

[^2]: R.S.C. 1985 c. 3 (2nd Supp.)