COURT FILE NO.: 04-FL-1277-01

DATE: 2012/07/13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Thompson, Applicant

AND

Nancy Gilchrist, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: None for the Applicant

Wade L. Smith for the Respondent

HEARD: June 7 and 8, 2012

JUDGMENT

[ 1 ] Mr. Thompson is seeking to reduce his child support payments and terminate his spousal support obligation, both retroactively, based on decreased earnings. Ms. Gilchrist resists the application and seeks continued spousal support and Guidelines child support based on income imputed to Mr. Thompson.

Preliminary Matters

[ 2 ] Along with the above, there were three other issues that I have already addressed or can dispose of quickly:

(i) Historical Costs

[ 3 ] I indicated to Mr. Thompson that I had no jurisdiction to order the costs he was seeking related to proceedings regarding access that pre-dated the current application and/or were resolved on consent. That claim is dismissed.

(ii) Breach of Privacy

[ 4 ] Mr. Thompson was seeking damages for breach of his privacy. He went bankrupt in 2007 and did not want his parents to know. Ms. Gilchrist advised his parents by sending them a copy of an affidavit he filed with this court. She said that his parents needed to know as they might have assisted Mr. Thompson thereby indirectly benefitting her and the children. Mr. Thompson was of the view that this communication was done in spite with the purpose of embarrassing him, and had that effect.

[ 5 ] I was referred to the Bankruptcy Act , R.S.C. 1985, c-B-3, section 11.1 , indicating that there is no expectation of privacy in bankruptcy proceedings. Even if there were, I was also referred to Rule 20(25)(b) of the Family Court Rules , O.Reg. 114/99 , which creates an exception to the confidentiality requirements of these proceedings once the evidence has been filed in court. I see no cause of action here. That claim is dismissed.

(iii) Ms. Gilchrist’s Motion to Dismiss at the Start of Trial

[ 6 ] Ms. Gilchrist brought a motion at the start of trial seeking to have Mr. Thompson’s proceeding dismissed for failure to abide an August 25, 2010 order requiring him to pay the existing child and spousal support orders. On the facts as set out below, largely admitted, I found that he did fail to obey that order and is therefore subject to Rule 14(23) of the Family Court Rules .

[ 7 ] Ms. Gilchrist relied on two cases. In Gordon v. Starr (2007), 2007 35527 (ON SC) , 42 R.F.L. (6 th ) 366 (Ont. S.C.J.) the proceeding was dismissed for a failure to pay an outstanding costs order but without prejudice to the applicant to have a further hearing once the breach was satisfied. In Maida v. Maida , 2007 CarswellOnt 5785 (SCJ) the moving party’s proceeding to vary his child support payment was denied because he was in arrears but again this was without prejudice to his right to bring his motion once the arrears were satisfied.

[ 8 ] Mr. Thompson travelled from New Brunswick to Ottawa for this trial. His position was that if I were to make the order requested he would be denied the right to a hearing indefinitely as he had no ability to pay the arrears given his recent loss of employment.

[ 9 ] Mr. Thompson has a Locked-In Retirement Account (“LIRA”) which he indicates is his only substantial asset. It has a face value of $83,306. As part of the relief requested on the motion Ms. Gilchrist sought transfer of that entire asset to her to satisfy outstanding arrears and to secure future support. I did not dismiss Mr. Thompson’s motion but rather ordered that support payments in arrears would be secured by the LIRA account. I also ordered that Ms. Gilchrist would have her costs on the motion. The result is not entirely unlike the Gordon and Maida cases in that although payment was not made in advance, substantial arrears were in a sense secured before we continued.

Issues

[ 10 ] As pleadings and positions have changed a number of times during the course of this proceeding, I asked the parties at the outset of trial which specific issues the court needed to address. They agreed on the following:

1. Should child support be reduced retroactively to March 1, 2010 and be based on Mr. Thompson’s current income?

2. Should spousal support be terminated retroactively to March 1, 2010?

Facts as Found

[ 11 ] The parties met at college but did not begin living together until they married on June 8, 1991. They have three children: Quinton age 17, Lauren age 14, and Gracie age 12.

[ 12 ] Mr. Thompson had a job with General Motors Acceptance Corporation (“GMAC”) on marriage, and was earning about $30,000. After the marriage Ms. Gilchrist worked mostly at retail sale jobs earning marginally more than minimum wage. She stopped working in April of 2005 when Quinton was born and has not worked since. Mr. Thompson was earning just under $40,000 at the time.

[ 13 ] The parties separated on January 3, 2003. On June 24, 2005 they settled all matters between them during a trial. The end result was the consent Divorce Order of Mackinnon J. of that date. The order provided that Ms. Gilchrist have custody of the children with access to Mr. Thompson. Child support was $1,350 per month per the Federal Child Support Guidelines, SOR/97-175, (“ Guidelines ”) using Mr. Thompson’s ‘base salary’ of $80,300 with yearly adjustments based on annual income disclosure thereafter. Spousal support was to be paid at $1,500 per month based on Mr. Thompson’s ‘total income’ of $85,679. The spousal support was to be reviewed should Ms. Gilchrist remarry, obtain employment, or on July 1, 2010, whichever came first. Ms. Gilchrist has not remarried.

[ 14 ] Mr. Thompson remarried Tanya Thompson on August 1, 2007. He filed an Assignment in Bankruptcy on November 7, 2007. Mr. Thompson was evasive about Tanya Thompson’s situation, citing a prenuptial agreement that kept their finances separate. For example, his 2008 Tax Return Summary indicated that he was married but his wife`s income is whited out in the disclosure. He confirmed that when they married she was also working at GMAC earning “less than $80,000.” He indicated that in February of 2008, she was let go from her job at GMAC. However at some point she found new employment as his then lawyer disclosed in a letter dated February 11, 2009 without supporting documentation that her income was $100,000 per year.

[ 15 ] On December 5, 2008, Mr. Thompson brought his Motion to Change. He claimed relief regarding access but also sought to reduce spousal support to $500 per month effective December 1, 2008.

[ 16 ] Mr. Thompson amended his Motion to Change on April 20, 2009 adding the Breach of Privacy claim and some further relief regarding access.

[ 17 ] On March 1, 2010, Mr. Thompson quit his job with GMAC and moved to his new wife’s hometown in New Brunswick to take a new job at a car dealership starting on March 4, 2010. It was clear from his evidence, his admissions, and his pleadings that this was a voluntary move.

[ 18 ] The year just before the move Mr. Thompson was making $85,963 per year at GMAC, and as noted his current wife was making at least $100,000 per year. His new job with the car dealership paid $52,000 per year, plus the use of a car which was a taxable benefit of $100 per week. There was no evidence about his wife’s new income other than that she worked as a real estate agent. She bought a very comfortable house in New Brunswick where the couple now lives.

[ 19 ] Mr. Thompson stopped paying spousal support and after several months adjusted his child support to reflect his new income of $52,000 per year using the Guidelines for Ontario. He amended his Motion to Change seeking to adjust the child support based on his new income level and to terminate spousal support, both effective March 1, 2010.

[ 20 ] On August 25, 2010 the access and custody issues settled, as reflected in the Final Order of Aitken J. of that date. The Office of the Children’s Lawyer was involved. Subsequent access between Mr. Thompson and the children would be subject to their wishes. As it turned out there has been no further access. Indeed his last access took place prior to that, in February of 2010. There has, however, been access between the children and Mr. Thompson’s parents.

[ 21 ] Justice Aitken also ordered, apart from that agreement, that Mr. Thompson continue paying spousal and child support at its most recent level. He failed to do so prompting the pre-trial motion noted above.

[ 22 ] Quinton has a mild learning disability that leads to frustration and anxiety. He suffers from anxiety and depression but is no longer on medication and is progressing in school. Lauren has a learning disability. However, she is also progressing well in school. She has a serious eating disorder that required hospitalization for several months in the spring of 2011. A huge amount of attention to her and follow-through with professionals by Ms. Gilchrist was needed. She is doing well now but remains on medications. Gracie has had some difficulties with anxiety and depression, but is coping well and doing well in school.

[ 23 ] Mr. Thompson conceded that the children were high needs when they were younger but disputed that was still the case. He has not had access to them for over two years but takes the view that the children are doing “wonderfully” based on their recent positive report cards. The direct evidence from Ms. Gilchrist is that the children have been improving due to her hard work and high level of attention and care, but that they are still frail and all require extra attention and support from her regarding their schooling, mental/emotional health, and appointments with service providers.

[ 24 ] Mr. Thompson’s new employer underwent an ownership change and on February 16, 2012 the entire management team including Mr. Thomson was let go. Mr. Thompson has therefore been collecting Employment Insurance benefits of $485 per week since March 17, 2012. He stopped making any child support payments other than one installment of $80 on May 30, 2012. He indicated that he was aware his child support payments based on his E.I. income and the Child Support Guidelines for New Brunswick should be $447 per month, but said he needed the money to travel to court for this trial.

[ 25 ] Mr. Thompson is actively looking for work, but is limiting his search to Atlantic Canada.

[ 26 ] Ms. Gilchrist and the children have been on public assistance since a few months after April of 2010 when the spousal support payments stopped. Ms. Gilchrist has a college diploma in business/fashion but as noted has not worked since 1995. She has not explored any level of employment. At one time she explored educational upgrading but the cost was prohibitive.

[ 27 ] Ms. Gilchrist testified that she suffers from a mild learning disability, and from a number of ailments. She is currently on medications for a thyroid condition, for anxiety and depression, and on blood thinners for a deep vein thrombosis in one of her legs. She indicated that the net effect was she was unable to work at this time because of medical reasons. The only evidence of her difficulties was from her; no experts were called and no medical reports were admitted pursuant to section 52(2) of the Ontario Evidence Act , R.S.O. 1990, c. E.23 . Mr. Thompson refused to admit reports served pursuant to a Request to Admit.

Reasons for Move/Change of Circumstances

[ 28 ] While again there is no dispute that Mr. Thompson voluntarily left his job with GMAC for a lower paying job at the car dealership in New Brunswick, he presented evidence that seemed to be directed at proving either that a material change in circumstances had taken place by March 1, 2010, or that the move to New Brunswick in 2010 was necessary or justified. His evidence can be summarized as follows:

a) In 2006 the Child Support Guidelines table amounts for his income increased.

b) As his income went up following the 2005 Consent Order his child support increased.

c) In January of 2007 his employer GMAC began paying him over 27 pay periods rather than the previous 25 pay periods ( i.e. he earned the same amount but was paid in different increments).

d) GMAC changed its pension plan rules in 2007.

e) He went bankrupt in 2007.

f) In May of 2008 he lost the use of a company vehicle, a taxable benefit. He maintained that he could not get financing to secure the use of a private vehicle after his bankruptcy, and found getting to and from work difficult and stressful.

g) The cost of getting to access was a problem for him and Ms. Gilchrist refused to contribute. He lived in the Toronto area and she lives in Ottawa. The consent order is silent on who pays for access so her obligation to contribute was not established. However, as noted, the access had stopped before Mr. Thompson quit GMAC and moved to New Brunswick.

[ 29 ] Regarding his decision to move Mr. Thompson said that his new mother-in-law had a stroke in 2008 and passed away in June of 2009, and his sister-in-law was ill in 2009. Given the timing, I did not find these unfortunate events relevant.

[ 30 ] Regarding his decision to quit GMAC Mr. Thompson said that he had heard unofficially from friends and managers that his job was in jeopardy. He claimed that his work performance was suffering because the stressors noted above were weighing on him. Without a vehicle he was often arriving late. However, there was no independent evidence from GMAC that Mr. Thompson’s job situation was indeed insecure. Mr. Thompson did not suggest or provide any evidence that he had been subject to discipline. While we heard that there was financial turmoil with General Motors around that time, there was no evidence that anyone at GMAC or its successor lost their jobs. Mr. Thompson had 22 years of seniority at the time he quit.

Issue 1: Should Child Support be Reduced Retroactively to March 1, 2010 and Be Based on Mr. Thompson’s Current Income?

(i) Has There Been a Material Change of Circumstances?

[ 31 ] Section 17(4) of the Divorce Act , R.S.C. 1985, c. 3, says that before the Court can make an order varying child support it shall satisfy itself that a change of circumstances as provided for in the Guidelines has occurred.

[ 32 ] Mr. Thompson paid guideline child support up until he left GMAC on March 1, 2010, and for three months afterwards. The issue of material change regarding child support is therefore framed around his decision to quit his employment with GMAC.

(ii) Is Mr. Thompson Intentionally Under-Employed?

[ 33 ] Mr. Thompson said that he didn’t quit GMAC until he found his new job because child support needed to be “minimally covered.” It was not clear that Mr. Thompson appreciated that divorced parents have an obligation to financially support their children and that they cannot avoid that obligation by a self-induced reduction of income: Weir v. Therrien (2001), 2001 28136 (ON SC) , 20 R.F.L. (5 th ) 199 (Ont. S.C.), Drygala v. Pauli (2002), 2002 41868 (ON CA) , 61 O.R. (3d) 711 (Ont. C.A.), Stoangi v. Johnson , 2006 24124 (ON SC) , 2006 CarswellOnt 4375 (Ont. S.C.), Rodriguez v. Singh , 2011 ONCJ 728 .

[ 34 ] Per section 19(1)(a) of the Guidelines the court may impute income if a spouse is “intentionally under-employed”. A spouse who chooses to earn less than he or she is capable of earning is intentionally under-employed: Drygala v. Pauli , supra.

[ 35 ] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: Riel v. Holland (2003), 2003 3433 (ON CA) , 67 O.R. (3d) 417 (Ont. C.A.), at para. 23 . It must be reasoned, thoughtful and highly practical: Hagner v. Hawkins (2005), 2005 43294 (ON SC) , 21 R.F.L. (6 th ) 315 (Ont. S.C.) at para. 19 .

[ 36 ] I find that Mr. Thompson’s attempt to justify the decision to change jobs is not in any way compelling. The decision considered only his interests. He was aware of the operation of the Guidelines and the effect this decision would have on his children as he subsequently reduced the child support payments unilaterally without a court order. I find therefore that he is intentionally under-employed.

(iii) What Income Should be Imputed?

[ 37 ] The Court of Appeal in Drygala v. Pauli , supra noted at para. 44 :

Section 19 of the Guidelines is not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence.

[ 38 ] The Court went on to anticipate the potential lack of evidence in some cases and noted at para. 46:

If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history and impute an appropriate percentage thereof.

[ 39 ] That last quotation addresses the practical realities of a trial such as this. The onus is on the payor parent to justify the decision to reduce his income. Given that Mr. Thompson’s position was that support should simply be calculated based on the income he actually receives, he led no evidence of comparative employment beyond his efforts to seek employment in Atlantic Canada. The result is that the Court has little more than his past earning history to consider. I find, as Judges in other cases have, that his previous income is a rational basis on which to impute income, as it is the amount that Mr. Thompson would have continued to earn but for his decision to leave his job: Olah v. Olah (2000), 2000 22590 (ON SC) , 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien , supra; Vitagliano v. Di Stavolo (2001), 2001 28202 (ON SC) , 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar , 2006 ONCJ 296 ; Laing v. Mahmoud , 2011 ONSC 4047 .

[ 40 ] Mr. Thompson relied on the case of Liscio v. Avram , 2009 43640 (Ont. S.C.), which also involved the imputing of income to an underemployed parent based on past earnings. He raised it for a different proposition, namely that a parent’s obligation to pay support for an adult child should take into account ( i.e. be reduced by) social assistance the child is receiving. Ms. Gilchrist has been receiving Ontario Disability Support Program benefits for Lauren relating to her eating disorder. However, Lauren is not an adult child. That case is clearly distinguishable on the facts on that point as very different considerations apply for adult children.

[ 41 ] Mr. Thompson’s decision to walk away from a secure job at GMAC carried with it obvious risks. I do not find that his subsequent loss of employment with the car dealership impacts the above analysis.

(iv) Summary

[ 42 ] As in the case of Zarzycki v. Zarzycki (1993), 1993 16091 (ON SC) , 47 R.F.L. (3d) 200 (O.C.J. (Gen. Div.)), I find that the voluntary termination of employment here is not a material change in circumstances.

[ 43 ] I therefore answer the question as follows. Mr. Thompson`s income should not be reduced retroactively as of March 1, 2010. His income is imputed as his last full year at GMAC which according to his 2009 Notice of Assessment was $85,963 per year.

Issue 2: Should Spousal Support be Terminated Retroactively to March 1, 2010?

a) Imputing of Income

[ 44 ] In this case it would be inconsistent to impute income for spousal support using a different approach than used above for child support. As noted by Linhares de Sousa J. in Brophy v. Brophy (2002), 2002 76706 (ON SC) , 32 R.F.L. (5th) 1 (Ont. S.C.) at para. 35 , “In essence, both situations relate to a paying spouse’s ability to provide support to a dependent.” The decisions in that case, in Murray v. Murray , 2003 64299 (ON SC) , [2003] 66 O.R. (3d) 540, rev’d on other grounds 2005 30422 (ON CA) , [2005] O.J. No. 3563 (Ont. C.A.), and in Korkola v. Korkola , 2009 2487 (ON SC) , [2009] O.J. No. 343 (S.C.J.), adopt the approach that the Child Support Guidelines should apply to the calculation of a payor spouse’s income for the purposes of spousal support. I impute income to Mr. Thomson for the purpose of spousal support in the amount of $85,963 per year.

b) Change of Circumstances as of March 1, 2010

[ 45 ] Although the 2005 order is clear that no review of spousal support was to take place before July 1, 2010, I still have jurisdiction to make a variation before then: Bemrose v. Fetter , 2007 ONCA 637 , 42 R.F.L. (6th) 13. However, I first have to be satisfied that there is a change in circumstances as set out in section 17(4.1) of the Divorce Act .

[ 46 ] Mr. Thompson’s imputed earnings are at about the same level as when support was set by agreement in 2005. In the intervening time there were higher earning years. While Mr. Thompson did go bankrupt in 2007, there was little evidence to compare his debt situation at that time relative to the date of the 2005 order, and to March 1, 2010. There was no clear evidence to suggest that the bankruptcy resulted from an unforeseen event versus , as in the case of Bossin v. Bossin (2003), 2003 64314 (ON SC) , 36 R.F.L. (5th) 18 (Ont. S.C.), aff’d 2003 27166 (ON CA) , 48 R.F.L. (5th) 251 (Ont. C.A.), poor handling of personal finances. In any event, as of March 1, 2010 the bankruptcy was well in the past. Mr. Thompson may have even been in a better cash flow position with no historical debt payments. As to his argument that the bankruptcy wiped out his savings and his priority therefore should be to save for his retirement, his dependents’ immediate needs take top priority.

[ 47 ] I have listed above the factors put forward by Mr. Thompson suggesting a change in circumstances, and I do not find that any of them or all of them taken together are material or significant. Indeed prior to quitting his job in March of 2010, he had no substantial debt, no other dependents, a good paying job, and was at a minimum sharing living expenses with his new wife who owned her own home mortgage free and similarly had a good paying job and no dependents. He went so far as to comment that he was “unable to survive in Ontario” on his net disposable income paying child support pursuant to the guidelines and $1,500 per month spousal support. I agree with the decision of the British Columbia Court of Appeal in P.(W.C.) v. P.(C.) , 2005 BCCA 60 () , [2005] 40 B.C.L.R. (4th) 163, to the effect that a spouse cannot spend his way into a ‘change of circumstances’ for the purposes of section 17. I do not accept Mr. Thompson’s suggestion that as the welfare system and Ms. Gilchrist’s family were providing basic financial support for her and the children there was no need for further spousal support from him. This is his obligation first.

[ 48 ] I therefore answer the question as follows. Spousal support should not be terminated or varied effective March 1, 2010. Mr. Thompson has not met his onus of establishing a material change of circumstances.

c) Review as of July 1, 2010

[ 49 ] It would be unfair to Mr. Thompson to leave the issue there. During the course of this litigation we passed the date of July 1, 2010, the trigger point for a review of spousal support pursuant to the 2005 consent order.

[ 50 ] Mr. Thompson provided me with Spousal Support Advisory Guidelines calculations based on the date of separation. He said that it was not until April of 2010 that he became aware that the level of spousal support he had been paying was higher than the SSAG calculation. However, in assessing the variation application this court must start from the proposition that the original consent order was fit and just.

[ 51 ] Both parties fully addressed the SSAG calculations in argument. Ms. Gilchrist suggested that they supported the proposition that the expected duration of spousal support on these facts with dependent children is 16 years. Mr. Thompson argued that the amount of spousal support in the 2005 consent order was too high, and that with child support it left him with a net disposable income that was oppressive. I am mindful of Fisher v. Fisher , 2008 ONCA 11 , 88 O.R. (3d) 241, which stands for the proposition that while the SSAGs are a useful tool they are only advisory and they only apply to initial orders for support not variation orders.

[ 52 ] Footnote 8 in Bemrose v. Fetter , supra, notes:

The distinction between a review of and a variation of a support order was expressed by Laskin J.A. in Andrews v. Andrews (1999), 1999 3781 (ON CA) , 45 O.R. (3d) 577 at para. 35 : “[u]nlike on a variation application, on a review neither spouse has to demonstrate a material change in circumstances. The court determines spousal support – entitlement, amount, and duration – afresh on the facts existing at the review date.” See also Leskun v. Leskun , 2006 SCC 25 () , [2006] 1 S.C.R. 920 at paras. 37 and 39 .

[ 53 ] In many respects the means and needs of the parties have not changed much since the 2005 consent order. With the imputing of income to Mr. Thompson he still earns about the same as he did then. His assets and liabilities at the time of the order were not put into evidence to compare to his current situation. Ms. Gilchrist remains unemployed caring for the children.

[ 54 ] The factors for me to consider regarding a spousal support variation are set out in section 17(7) of the Divorce Act . The relevant evidence is noted above and I summarize it briefly as follows:

− This was an approximately 11.5 year marriage.

− Ms. Gilchrist has had sole custody of the children since separation approximately 9.5 years ago.

− The children have had very high needs, but they have been improving with Ms. Gilchrist’s attention and care. They still struggle at times and require a high level of educational and emotional support from her.

− Ms. Gilchrist and has been out of the work force for about 17 years, roughly 7.5 during the latter part of the marriage and 9.5 since separation.

− Ms. Gilchrist has not taken steps to obtain employment or upgrade her education. She has a college diploma and some work experience mostly at retail sales jobs earning marginally above minimum wage.

− I accept Ms. Gilchrist’s evidence of her health related difficulties as noted above. However, I do not accept her opinion that she is currently unable to work in any capacity. Parenting three children is a difficult job. Doing it well with three children who have special needs as Ms. Gilchrist has is even more difficult. She is resourceful and functions at a high level. She has a pleasant demeanor. Without admissible expert evidence to the contrary I find that going back to the type of job she had before Quinton was born is certainly within her capacity. The question really is whether she is able to do both the required parenting and some employment at this time.

− Gracie, the youngest child, was born on January 8, 2000, and is now 12 years old. She was 10 years old on July 1, 2010. All the children are in school full-time.

[ 55 ] Ms. Gilchrist has a need for support. The financial consequence for her of higher needs children has made it impossible to even consider becoming fully self-sufficient. Full-time work would be extremely difficult at this stage and risk negatively impacting the progress the children have made with her extra attention. That situation will remain difficult for some time. However, with all the children in school she should at least be looking for some work on a part-time basis.

[ 56 ] I have no doubt that Ms. Gilchrist would be able to find part-time work that could accommodate her need to be home at important times with the children. Three shifts of 4 hours per week would not be unreasonable, which at roughly minimum wage would be approximately $500 per month. I would accordingly reduce the level of spousal support to $1,000 per month at the time of review. This would be a practical way to promote her moving towards self sufficiency within a reasonable period of time.

[ 57 ] Mr. Thompson argued that even at a reduced rate of spousal support and with child support at his imputed level of income his net disposable income is still not adequate for him to maintain himself. He relied on Oddi v. Oddi (2000), 2000 22589 (ON SC) , 7 R.F.L. (5th) 164 (Ont. S.C.), as support for this proposition. In that case the court held that while a 60/40 split of net disposable income in favour of the wife with three dependent children is reasonable in some cases, it was not reasonable when it leaves the payor husband with a monthly net disposable income of $1,441. The court was of the view that the husband could not maintain himself, and spousal support was therefore lowered such that the husband was left with a net disposable income of $1,568. The court added that even at that reduced level, “[u]nfortunately the husband will have to lower his expectations as far as living expenses are concerned until such time as more money becomes available.”

[ 58 ] Mr. Thompson’s imputed net disposable income is much higher than that in the Oddi case looking at his own SSAG calculations. The spousal support ordered would only be at the high range but not off the scale. Again, Mr. Thompson lives with an income-earning spouse with no dependants. He does not currently have transportation costs regarding access. There is no claim before the Court by Ms. Gilchrist for extraordinary expenses. I do not see this as a case where the balance between the parties has become so distorted as to be viewed as unjust.

Decision

[ 59 ] Child support as of March 1, 2010 is set at $1,590 per month based on imputed income to Mr. Thompson at $85,963 using the New Brunswick tables as required by section 3(3) of the Federal Child Support Guidelines .

[ 60 ] Spousal support is set at $1,000 per month as of July 1, 2010.

[ 61 ] As noted above, I ordered that the arrears of support as of the date of trial be secured by the LIRA account. Subsections 66(1) and (4) of the Pension Benefits Act, R.S.O. 1990, c.P.8, (“ PBA ”), read as follows:

66(1) Money payable under a pension plan is exempt from execution, seizure or attachment.

66(4) Despite subsection (1), payments under a pension plan or that result from a purchase or transfer under section 42 or 43, clause 48(1)(b) section 67.3 or 67.4 or subsection 73(2) are subject to execution, seizure or attachment in satisfaction of an order for support enforceable in Ontario to a maximum of one-half the money payable.

[ 62 ] In Trick v. Trick (2006), 2006 22926 (ON CA) , 81 O.R. (3d) 241 (C.A.), an order that purported to vest 100 percent of the husband’s pension with the wife for the purposes of support enforcement was set aside. Per subsection 66(4) of the PBA the wife was only entitled to garnishment of 50 percent of the pension.

[ 63 ] Ms. Gilchrist’s counsel provided the case of Briere v. Saint-Pierre , 2012 ONSC 421 (SCJ), where the Court made a lump sum spousal support order. That order coupled with support arrears resulted in a transfer to a spouse in excess of 50 percent of a LIRA’s value. However, that decision relied on subsection 65(3) of the Pension Benefits Act which might allow for a further exemption for orders made under the Family Law Act, R.S.O. 1990, c. F.3. As we are under the Divorce Act that subsection cannot assist: see Trick v. Trick , supra , at para. 44 .

[ 64 ] In Belton v. Belton , 2010 ONSC 2400 , an entire LIRA account was transferred to and vested in the name of the wife. One half was on account of spousal support arrears. The other half was as a property order. There is no property claim in this case.

[ 65 ] I therefore find that I while I do have authority to award a transfer of the LIRA to Ms. Gilchrist, I cannot transfer an amount greater than one-half its value.

[ 66 ] One half of the LIRA account is $41,653. Pursuant to the support orders I have made, this is less than the total amount of support owing as of the start of trial. A final order shall issue that $41,653 of the funds in the Royal Bank RRSP Account No. 574995080 shall be transferred to and vested in the name of the Respondent Nancy Gilchrist on account of support arrears.

Costs

[ 67 ] As Mr. Thompson lives in New Brunswick, if the parties cannot agree on costs within 30 days including Ms. Gilchrist’s costs on the pre-trial motion for dismissal, I am prepared to receive written submissions. Mr. Thompson shall serve and file his submissions of no more than three pages by August 8, 2012. Ms. Gilchrist shall serve and file her submissions of no more than four pages by August 15, 2009. Mr. Thompson shall serve and file his reply submissions if any of no more than two pages by August 29, 2012.

Mr. Justice Timothy Minnema

Date: July 13, 2012

COURT FILE NO.: 04-FL-1277-01

DATE: 2012/07/13

ONTARIO SUPERIOR COURT OF JUSTICE RE: Scott Thompson, Applicant AND Nancy Gilchrist, Respondent BEFORE: Mr. Justice Timothy Minnema COUNSEL: Wade L. Smith for the Respondent JUDGMENT Mr. Justice Timothy Minnema

Released: July 13, 2012