COURT FILE NO.: 04-6209

DATE: 20130426

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JACQUELINE SKIPPEN

(now Armstrong)

Allen Wilford, for the Applicant

Applicant

- and -

THOMAS SKIPPEN

Thomas Denholm, for the Respondent

Respondent

HEARD: April 15, 17, 19, 23, 2013

REASONS FOR JUDGMENT

Conlan J.

Introduction

[1] The hyperbolic part of me wants to start by saying that this litigation is as old as the dinosaurs, but suffice it to say that the trial of the matter was long, long overdue.

[2] Almost a decade after the Application was commenced by the Applicant mother (“Ms Armstrong”), after an array of seemingly endless motions, after too many Temporary Orders and Endorsements to count, after the involvement of a good chunk of Central West’s complement of Superior Court Justices, and after a series of lawyers for the Respondent father (“Mr. Skippen”), the financial aspects of this case were finally tried before me in Owen Sound on April 15, 17, 19 and 23, 2013.

[3] Unfortunately, the custody and access issues will have to be tried separately because the file was very recently transferred to a new children’s lawyer. I encourage the parties and all counsel to ensure that those issues are determined as soon as possible. Any further delays are certainly not in the best interests of the children.

The Background

[4] Most of the facts in this case are not in dispute.

[5] The parties started living together in August 1992. They married in June 1993. They separated in April 2004 and were divorced in January 2006.

[6] There are two children of the union, both boys: A born June 19, 1997 (15 years old) and J born August 16, 1999 (13 years old).

[7] From the date of separation until November 2009, the children lived with Ms Armstrong. In November 2009, J went to live with Mr. Skippen. Since December 2010, the boys have lived with each parent on a week-about rotation.

[8] Ms Armstrong is a college graduate and legal assistant.

[9] Since the end of November 2010, Mr. Skippen has been in receipt of social assistance. He worked at Honda Canada for 17 years until December 2004 when he was terminated as a result of his “creative accounting” (that was Mr. Skippen’s expression; obviously, the employer concluded that Mr. Skippen was either negligent or fraudulent in the way that he was carrying out his duties in ordering stock for the plant). He has had a few jobs since the beginning of 2005 including a brief stint with a company called Amlap (which job Mr. Skippen quit to move closer to his sons) and approximately four years (June 2006 to September/October 2010) as a salesman employee and then, for the last six months, as a consultant for Provincial Tank Lining and Inspections Inc., based out of Owen Sound.

[10] According to Mr. Skippen, he was eventually terminated from Provincial Tank Lining and Inspections Inc. because he was focusing too much on his own business.

[11] Mr. Skippen was a successful salesman, as confirmed by the testimony of Greg Waugh, sales manager with Provincial Tank Lining and Inspections Inc. Despite healthy gross annual incomes and a few very sizeable commission cheques (one as high as nearly $14,000.00 in the Fall of 2007), Mr. Skippen left behind his employment with Provincial Tank Lining and Inspections Inc. in 2010, largely because changes in the sales and payment structures meant that the job was significantly less financially rewarding for him.

[12] In April 2010, Mr. Skippen started his own registered business called Hard Water Rescue. It was originally a partnership but then became a sole proprietorship owned and operated by Mr. Skippen. That business continues today, although it only recently began to generate any profit (about $4,000.00 profit in each of the months of March and April 2013 – see Exhibit 34 created by Mr. Skippen).

[13] Mr. Skippen predicts that Hard Water Rescue will continue to be profitable going forward. His goal is to rid himself of social assistance.

[14] Mr. Skippen was also an agent for Hydroflow Canada from May 2010 to February 2013.

[15] Between December 2010 and May 2011, Mr. Skippen was actively looking for other jobs. That search stopped in May 2011. Commencing then, because he had been approved for a business assistance program through social assistance, Mr. Skippen concentrated exclusively on Hard Water Rescue. That business assistance program is no longer in place for Mr. Skippen.

[16] The current arrangement is that every profit dollar earned by Mr. Skippen through his business is deducted from his social assistance benefits. Every dollar earned by Mr. Skippen through other employment, such as his part-time taxi driver job that he has currently, results in 50 cents being deducted from his social assistance benefits.

[17] Social assistance contributes towards some of Mr. Skippen’s business expenses. For example, he receives an allowance of 25 cents per kilometer driven for business travel.

[18] Exhibit 37 shows that Mr. Skippen received $13,244.45 in social assistance benefits for the tax year 2012. He currently receives about $1,000.00 per month. His major monthly expense is his rent - $600.00.

[19] There is a dispute between the parties as to how often the children have been in the care of Mr. Skippen over the years. The divergence of opinion seems to commence in June 2006. Up until then, Mr. Skippen agrees that he had the children less than 40% of the time – on weekends. But between June 2006 and September 2007, Mr. Skippen says that he had care of the children 40-45% of the time. Then, according to Mr. Skippen, access decreased to little or none between September 2007 and November 2009, at which time J went to live with him. Since November 2009 until the present, Mr. Skippen states that the children have been in his care 50% of the time.

[20] If it sounds like we are talking about chattels, we are not. These are children.

The Issues

[21] There are three issues: child support, arrears and ongoing, payable by Mr. Skippen; s. 7 Guidelines expenses, arrears and ongoing, payable by Mr. Skippen; and spousal support, arrears and ongoing, payable by Mr. Skippen.

[22] There were a few other claims advanced during the trial, such as a request by Ms Armstrong for payment by Mr. Skippen to compensate her for a motor vehicle that she says the couple bought after separation for the benefit of her and the children and which she alleges was essentially stolen from her by Mr. Skippen, although it was in his name.

[23] All such other claims are dismissed. The age of this matter has created a paucity of reliable evidence to make anything other than the three major issues already identified capable and worthy of adjudication.

The Evidence at Trial and the Positions of the Parties

[24] This was a short trial with just three witnesses including the two parties. These Reasons for Judgment are being released within days of the conclusion of the trial. The evidence is straightforward and very fresh in my mind. It is necessary only to summarize the evidence of each party as it relates most directly to the three issues to be decided.

Child Support Payable by Mr. Skippen

[25] On the first day of her testimony at trial, Ms Armstrong alleged that Mr. Skippen owes a total of $80,905.15 for arrears in child support ($18,096.16), s. 7 Guidelines expenses ($21,895.39) and spousal support ($40,913.60) between 2004 and 2012.

[26] Exhibit 17 is Ms Armstrong’s original calculation of the alleged child support arrears. To create that document, she used (i) for 2005, the January 2005 Temporary Order of Justice O’Connell and the gross income for Mr. Skippen as reflected in his Canada Revenue Agency (“CRA”) document (part of Exhibit 1), and (ii) for subsequent years, the Guidelines table amounts and the gross incomes for Mr. Skippen disclosed by his CRA documents. Ms Armstrong accounted for the changes in the children’s residency and gave credit to Mr. Skippen where he overpaid.

[27] The relevant clauses of O’Connell J.’s Temporary Order are as follows:

6. The Respondent shall pay to the Applicant on account of child support for the two children of the marriage; the sum of $468.00 per month for the support of the children in accordance with the Federal Child Support Guidelines; such payment to commence 1 February 2005 and the first of each month thereafter. The child support amount is based upon the Respondent’s current income of $32,000.00 per year for support of the children, namely; Andrew Thomas Skippen born 19 June 1997 and Jeremy Lewis Skippen born 16 August 1999.

7. The Respondent shall not deplete any benefits due to the Respondent from Honda Canada Mfg.

8. All monies received from Honda Canada Manufacturing payable from the Respondent’s employment shall be paid into the trust of Brent Cumming and held until consent agreement or Order of this court.

[28] As revealed during her cross-examination, Ms Armstrong did not use the Temporary Order of Coats J. made in October 2007, which Order stated, in part, as follows:

1. When the Respondent, Thomas Skippen receives the commission cheque of $4,519.79, he shall pay the Applicant’s solicitor in trust the sum of $4,000.00 within 24 hours of the Respondent, Thomas Skippen, receiving the commission cheque.

2. The Respondent Thomas Skippen will pay ongoing child support for Andrew Thomas Skippen born June 19, 1997 and Jeremy Lewis Skippen born August 16, 1999 and spousal support, to Jacqueline Skippen, the combined amount being $281.08 per week.

[29] Further, in cross-examination, Ms Armstrong conceded that she did not account for seven support payments of $562.16 each, totaling $3,935.12, made by Mr. Skippen and deposited into Ms Armstrong’s TD Canada Trust bank account (Exhibit 29).

[30] When the cross-examination of Ms Armstrong resumed on the second day of the trial, she amended the arrears figures to account for the payments made by Mr. Skippen which were pointed out to her on the first day of her cross-examination. As reflected in Exhibit 31, those amended arrears figures were calculated by Ms Armstrong to be $77,596.41 total - $17,358.16 for child support, $21,895.39 for s. 7 Guidelines expenses and $38,342.86 for spousal support.

[31] Ms Armstrong was not the only party who had some difficulties with calculations. On the final day of his testimony, Mr. Skippen acknowledged that he had wrongly indicated losses for his business, Hard Water Rescue, on Exhibit 34 for the months of March, June and October 2012 – those months should have shown profits.

[32] Effective April 2010, when Mr. Skippen ceased being an employee of Provincial Tank Lining and Inspections Inc., and on an ongoing basis, for purposes of child support Ms Armstrong asks that the Court impute income to Mr. Skippen. I am urged by Ms Armstrong to fix Mr. Skippen’s gross income at $70,000.00 per annum between April 2010 and now and for the foreseeable future until such time as Mr. Skippen earns a reasonably decent income and is off of social assistance. The $70,000.00 figure is allegedly an average of Mr. Skippen’s gross incomes for the few years prior to 2010. Ms Armstrong says that Mr. Skippen has concealed income in the past, for example, with regard to sizeable commission cheques received by him from Provincial Tank Lining; that he currently lives a lifestyle inconsistent with someone on social assistance; and that he is intentionally underemployed or unemployed given his work history and skills.

[33] It should be noted that Mr. Skippen insinuates that income ought to be attributed to Ms Armstrong as well. In fact, the DivorceMate support calculations filed with the Court and referred to in the closing submissions of Mr. Skippen’s counsel assume gross incomes for Ms Armstrong for various years equal to 1.3 times her reported total income figures. In support of his argument in favour of imputing income to Ms Armstrong, Mr. Skippen alleges that she has a history of financial records that show significant deposits of money which are unexplained and well beyond her reported gross income amounts.

[34] In summary, as reflected in the closing addresses by counsel for the parties, Ms Armstrong submits that the Court should accept her calculations (revised) in Exhibit 31 in terms of the child support arrears owing by Mr. Skippen, and that going forward I should use her actual reported annual gross incomes and an imputed annual income of $70,000.00 for Mr. Skippen to calculate child support owing by him in accordance with the Guidelines. On the other hand, Mr. Skippen submits that his calculations prove that he owes nil in child support arrears; in fact, it is alleged that he has overpaid in total support, child and spousal. And he argues that child support ought to have ceased when the child J went to live with him full-time.

Section 7 Guidelines Expenses Payable by Mr. Skippen

[35] Exhibit 18 is Ms Armstrong’s calculation of the alleged s. 7 Guidelines expenses arrears. To create that document, she used the gross incomes for Mr. Skippen as reflected in his CRA documents and her actual gross incomes. I say “her actual gross incomes” because Ms Armstrong acknowledged that, for some recent years, her actual gross income was higher than what is reported in her CRA documents (part of Exhibit 1).

[36] The cross-examination of Ms Armstrong focused on the fact that she does not have supporting documentation for some of the section 7 expenses that she is claiming, such as thousands of dollars for daycare costs.

[37] I pause here to address what is a common misunderstanding about evidence. Just because a claimant has no supporting documentation to prove that she paid something does not mean that there is “no evidence” that it was paid. The evidence is the claimant’s testimony. The weight to be given to that testimony in the absence of supporting documentation will depend on the circumstances. For example, a claimant who has no documents to prove that she bought an airplane yesterday may very well be looked at with more suspicion than a claimant who has no receipt for a box of nails bought five years ago.

[38] According to Mr. Skippen, some of the s. 7 Guidelines expenses that Ms Armstrong says were paid by her were actually paid for by Mr. Skippen or his employment benefits provider, such as dental costs for the children.

[39] Exhibit 38 is a collection of receipts for what Mr. Skippen states are s. 7 Guidelines expenses paid for by someone (he is not sure if he paid them), totaling about $6,000.00, between 2004 and 2013. The receipts are for items such as sports and dental costs.

[40] Currently, according to Mr. Skippen, he pays about $2,000-$2,500.00 per year for the boys’ hockey and about $5,000.00 annually for their football.

[41] In summary, as reflected in the closing addresses by counsel for the parties, Ms Armstrong submits that the Court should accept her calculations (revised) in Exhibit 31 in terms of the s. 7 arrears owing by Mr. Skippen, and that going forward I should use her actual reported annual gross incomes and an imputed annual income of $70,000.00 for Mr. Skippen to calculate proportionately the respective shares of the parties. On the other hand, Mr. Skippen submits that his calculations prove that he owes nil in s. 7 arrears; and he argues that the parties should split the s. 7 expenses equally going forward.

Spousal Support Payable by Mr. Skippen

[42] Exhibit 19 is Ms Armstrong’s calculation of the alleged spousal support arrears. To create that document, she used the gross incomes for Mr. Skippen as reflected in his CRA documents and her actual gross incomes, as well as the Temporary Order of O’Connell J. (and not the Temporary Order of Justice Coats).

[43] The relevant clause of O’Connell J.’s Temporary Order is as follows:

10. The Respondent shall pay to the Applicant the sum of $750.00 per month for spousal support commencing 1 February 2005 and on the first of each month thereafter. The spousal support Order is based upon the Respondent’s current income of $32,000.00 per year and the Applicant’s current income of $16,000.00 per year.

[44] Again, Ms Armstrong gave Mr. Skippen credit for when he overpaid.

[45] In summary, as reflected in the closing addresses by counsel for the parties, Ms Armstrong submits that the Court should accept her calculations (revised) in Exhibit 31 in terms of the spousal support arrears owing by Mr. Skippen, and that going forward I should use her actual reported annual gross incomes and an imputed annual income of $70,000.00 for Mr. Skippen to calculate spousal support owing by him. On the other hand, Mr. Skippen submits that his calculations prove that he owes nil in spousal support arrears; and he argues that spousal support ought to have ceased in favour of Ms Armstrong once she began working full-time for her current law office employer (Mr. Wilford, her counsel in this proceeding).

Analysis

Credibility of the Parties

[46] Generally, I found Ms Armstrong to be a more credible and reliable witness than Mr. Skippen. On the few points of factual disagreement between the parties, I prefer the evidence of Ms Armstrong and accept it over that of Mr. Skippen.

[47] I was impressed with Ms Armstrong’s openness in admitting that her CRA documents understate her gross incomes for certain years. I was equally impressed with her acknowledgement in cross-examination that her original calculations of the child and spousal support arrears owing by Mr. Skippen were incorrect.

[48] Ms Armstrong was rather meticulous in her evidence. She was well organized. She was direct in answering questions from the lawyers. She demonstrated a good memory of what has transpired since the date of separation. Nothing in her evidence struck me as being fanciful, illogical or incapable of common sense belief.

[49] I have concerns, on the other hand, about parts of Mr. Skippen’s evidence. The following are some examples.

[50] First, when asked in cross-examination how he is able to pay for his other expenses besides rent, Mr. Skippen initially stated that he sold some personal property. He clarified that the items sold included kayaks and some other stuff around the house. I found this evidence to be unreasonably vague. Further, that evidence is incapable of explaining in a credible way how Mr. Skippen generated extra monthly income on a consistent basis to compensate for the fact that he had for some time just $400.00 or so left over monthly after paying his rent.

[51] Second, Exhibit 36 is a series of Mr. Skippen’s Hard Water Rescue income and expenses reports. Mr. Skippen was pressed at length in cross-examination as to how he pays those expenses given that the reports consistently show him in a deficit position. The only explanations offered by Mr. Skippen were that some of the expenses shown were not necessarily cash outlays, such as mileage, and perhaps some of the bills, like utilities, were paid in a different month. I found those explanations to be imprecise and incomplete. I just do not understand how it is possible that the business and Mr. Skippen himself have survived given those figures.

[52] Third, when asked about Exhibit 36 (his Financial Statement sworn on April 2, 2013), Mr. Skippen testified in cross-examination that he did not recall if he read it before he signed it. That I found to be bizarre to say the least. This is a document that he signed less than three weeks before that testimony. Either Mr. Skippen has a terrible memory or he was not being forthright with the Court.

[53] Fourth, Exhibit 34 is a document created by Mr. Skippen himself which shows a profit for Hard Water Rescue of approximately $4,200.00 in March 2013, yet Exhibit 36 (his Financial Statement sworn on April 2, 2013) shows $400.00 per month as business income. When confronted in cross-examination with that glaring discrepancy, Mr. Skippen testified that he forgot about the profit from the business when he completed and signed his Financial Statement. Forgot? This is a man who has been on social assistance for more than two years. Finally striking gold with a profit of more than $4,000.00 in March 2013 is not something that he likely would have forgotten. Again, either Mr. Skippen has a terrible memory or he was not being forthright when he swore that Financial Statement.

[54] Fifth, Exhibit 36 shows monthly expenses for Mr. Skippen of about $500.00 more than his monthly income. That makes no common sense. Where is the money coming from?

[55] Sixth, although he had clearly indicated in his direct examination that Exhibit 38 is a collection of s. 7 expenses receipts largely paid for by him, Mr. Skippen later acknowledged during cross-examination that he is not sure if he paid any of those receipts. That is an inconsistency which adversely affects his credibility.

[56] Seventh, Mr. Skippen stated in cross-examination that he did not disclose the approximately $13,000.00 commission cheque from Provincial Tank Lining and Inspections Inc. during the court proceeding before Coats J. in October 2007 because he was at court only with regard to the other commission cheque in the amount of $4,500.00, approximately. I find that to be disingenuous. Clearly, the Temporary Order made by Coats J. would have been different had the Court known about the soon to be received cheque for $13,000.00 or so.

[57] To add insult to injury, before he paid the $4,000.00 cheque to Ms Armstrong as ordered by Justice Coats, Mr. Skippen had already received the approximately $13,000.00 cheque. Yet none of that $13,000.00 was given to Ms Armstrong. Although Mr. Skippen was in support arrears, the entire money was deposited in to his mother’s bank account. Mr. Skippen testified that he owed money to his mother. That may be true, but that obligation was not Court-ordered. His child and spousal support obligations were.

[58] Eighth, Mr. Skippen appears to believe that Court Orders are guidance or advice as opposed to mandatory directives. That belief is wrong. In cross-examination, Mr. Skippen stated that he did not pay the support ordered by O’Connell J. from June to December 2006 even though he was working for Provincial Tank Lining and Inspections Inc. and was earning more money than what the Temporary Order of Justice O’Connell was based on. I do not accept Mr. Skippen’s evidence that Ms Armstrong told him not to pay. That makes no common sense given her circumstances at the time. Besides, a Court Order is a Court Order. It is not a “please and thank you”. It shall be followed.

[59] A further example is the Temporary Order of Justice Corbett made in August 2009. His Honour ordered Mr. Skippen to pay $250.00 monthly towards support arrears. Other than two payments, Mr. Skippen admitted in cross-examination that he did not comply with that Order because the boy J came to live with him, and thus, he felt that the Order should be changed. I suspect that there are an awful lot of litigants who think that Temporary Court Orders ought to be changed. But until they are, they shall be adhered to. It was not up to Mr. Skippen to conduct a mock Court proceeding in secret; vary the Order and carry on his way. This is not some saloon portrayed in A Fistful of Dollars. The rule of law must be respected.

[60] Ninth, Mr. Skippen’s testimony in cross-examination was that the consent Temporary Order of O’Connell J., paragraphs 7 and 8 (reproduced above), did not include the RRSP that he cashed out. Mr. Skippen gave a couple of reasons for that stance, but the most absurd one was his comment that the RRSP funds did not fall within the said Order because they were paid to him by Sun Life and not Honda. Of course, that ignores that the funds were generated through his employment with Honda.

[61] Finally, I find that Mr. Skippen’s $10,000.00 claim against the former matrimonial home is spurious and reflects either unreasonable spite or greed on his part. Even if it is true that there was some agreement to place the home in the name of Ms Armstrong’s father into the names of Mr. Skippen and Ms Armstrong some time later (which I doubt given the testimony of Ms Armstrong’s father in reply evidence), and even if it is true that the home was bought by Ms Armstrong’s parents in trust for these parties (which I doubt given the testimony of Ms Armstrong’s father), the fact is that the parties lived in that home for less than one year (September 2003 until separation in April 2004). How that gives rise to some $10,000.00 trust claim by Mr. Skippen against the home, I have no idea. Mr. Skippen lived there for about 7 months. I do not know what he paid towards the home; he admitted in cross-examination that he did not pay anything towards the mortgage. The claim is simply a “Hail Mary”. It is without any merit, and I readily dismiss it.

Attribution of Income and the Law of Spousal Support Generally

[62] Before turning to a discussion of the three major issues, I will deal first with the matter of imputation of income. This is the flavour of the season in family law. Nearly everyone wants extra income attributed to his or her former partner.

[63] The two leading decisions are: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.) and Drygala v. Pauli, 2002 41868 (ON CA).

[64] There is a three-step approach. First, is the spouse intentionally underemployed or unemployed? If so, is the intentional underemployment or unemployment required by virtue of the needs of the child or children or the education or health of the spouse? If no, what income is appropriate to be attributed to the spouse?

[65] Next, a few words about the law of spousal support generally.

[66] The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significant income disparity between the parties after separation, there will be an entitlement to some spousal support.

[67] The decision of the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, created a broad basis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economic advantage on the other spouse.

[68] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the need basis for spousal support was outlined by the Supreme Court of Canada. A spouse may advance a non-compensatory claim based on need or hardship created by the loss of the marital standard of living.

[69] In determining the length of the relationship for spousal support purposes, the Court should look to the start of cohabitation, even before marriage, to the date of separation. The simplest approach is to round up or down to the nearest full year.

[70] “Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit at the time that it is made. Indefinite support orders remain open to variation as the circumstances of the parties change, and the orders may have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal process of variation and review.

[71] Indefinite spousal support orders are more common in long marriages (twenty years or more).

[72] A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both duration and quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that is longer and higher in amount. There are other factors that affect duration and quantum, and some of these considerations are specified in the Divorce Act: age, number, needs and standard of living of children; needs and ability to pay of the payor; work incentives for the payor; property division and debts; and self-sufficiency incentives.

Substantive Issue Number One - Child Support Payable by Mr. Skippen

[73] I reject Mr. Skippen’s argument that income ought to be attributed to Ms Armstrong. Mr. Skippen has not proven on a balance of probabilities that she is intentionally underemployed or unemployed or has ever been since the date of separation in April 2004.

[74] Regarding the argument that Ms Armstrong has significant deposits in to her bank account which are in excess of her reported gross incomes over various years, I accept the evidence of Ms Armstrong that those deposits are explained by funds from (i) her partner for his three children and (ii) the father of the girl over whom Ms Armstrong acquired guardianship.

[75] It is a serious allegation that Ms Armstrong is concealing her true finances. There is no reliable evidence to support such a serious accusation, especially in light of Ms Armstrong’s candidness in disclosing to the Court higher actual gross incomes for a few years compared to her CRA documentation.

[76] Mr. Skippen, on the other hand, was intentionally underemployed after he quit his employee sales position with Provincial Tank Lining and Inspections Inc. in April 2010. And that intentional underemployment was not required by virtue of the needs of the children or the education or health of either Mr. Skippen or Ms Armstrong. Thus, the test for imputation of income to Mr. Skippen has been satisfied on balance, and the remaining issue is to determine what income is appropriate to be attributed to him.

[77] In my view, it was unreasonable for Mr. Skippen to leave his employment with Provincial Tank Lining and Inspections Inc. in April 2010. His gross income for the tax year 2009 was over $100,000.00. Although I accept that the changes in the payment and sales structures would have meant a substantial decline in his income in 2010 and beyond, the facts show that he still earned nearly $50,000.00 gross in 2010 (which included the six months that he worked as a consultant to Provincial Tank Lining and Inspections Inc.). Mr. Skippen testified that the changes in the compensation at the company would have meant about a 50% decline in his income assuming the same sales that he had in 2009. So be it – he would have still earned $45,000.00 to $53,000.00, approximately. Instead, by leaving that employment, his gross incomes plummeted to $13,000.00 to $14,000.00 in the years following 2010.

[78] Mr. Skippen had a right to follow his dream business but not at the risk of such a dramatic decline in his finances at the potential expense of his children.

[79] I decline to attribute to Mr. Skippen a $70,000.00 gross annual income effective April 2010 until now and beyond, as suggested by Ms Armstrong. That amount is unreasonably high. In my view, given all of the circumstances including Mr. Skippen’s work history and his previous earnings and the changes to the compensation at Provincial Tank Lining and Inspections Inc., the appropriate income to impute to Mr. Skippen is $50,000.00 gross for the years 2011, 2012, 2013 and beyond.

[80] As will be seen below, this imputation of income to Mr. Skippen really only affects the issue of s. 7 expenses for the children.

[81] Thus, counsel shall calculate the child support arrears owing by Mr. Skippen as follows. There is no legitimate reason to go back before 2005, as suggested by Mr. Skippen. There is no claim being advanced by Ms Armstrong for the year 2004. The Application was not commenced until late 2004. The first Temporary Order was not made until early 2005. And any argument that Mr. Skippen may have overpaid for the year 2004 is more than offset by the fact that Ms Armstrong received nil of the approximately $13,000.00 commission cheque paid to Mr. Skippen in the fall of 2007.

[82] For the year 2005, the income figure for Mr. Skippen is $48,400.10; the income figure for Ms Armstrong is $27,477.00; and the Guidelines apply rather than the Temporary Order of O’Connell J. (both parties agree on that).

[83] For the year 2006, the income figure for Mr. Skippen is $44,038.00; the income figure for Ms Armstrong is $9.022.00; and the Guidelines apply rather than the Temporary Order of O’Connell J. (both parties agree on that).

[84] For the year 2007, the income figure for Mr. Skippen is $72,882.00; the income figure for Ms Armstrong is $25,631.00; and the Guidelines apply rather than the Temporary Order of O’Connell J. or that of Coats J. (both parties agree on that).

[85] For the year 2008, the income figure for Mr. Skippen is $70,754.68; the income figure for Ms Armstrong is $31,027.00; and the Guidelines apply rather than any Temporary Order (both parties agree on that).

[86] For the year 2009, the income figure for Mr. Skippen is $106,454.90; the income figure for Ms Armstrong is $38,116.00; and the Guidelines apply rather than any Temporary Order (both parties agree on that).

[87] For the years 2010, 2011, 2012, 2013 and beyond, there is no base child support payable by either party to the other. The child J had moved in with Mr. Skippen full-time in late 2009. And the gross incomes of the parties began to get closer to each other during those years (even using $50,000.00 for Mr. Skippen starting in 2011).

[88] I reject the assertion by Mr. Skippen that he is entitled to any offset prior to the date that J went to live with him. I find as a fact that he did not have care of the children 40% or more of the time before late 2009.

[89] Whatever the total child support arrears figure is calculated to be as per the above parameters, this Court Orders that Mr. Skippen shall pay those arrears at the rate of $500.00 per month commencing June 1, 2013 and on the first day of each month thereafter. This Order is enforceable through the Family Responsibility Office. A Support Deduction Order shall issue.

Substantive Issue Number Two - Section 7 Guidelines Expenses Payable by Mr. Skippen

[90] For the most part, there is no good reason for the Court not to accept the evidence of Ms Armstrong as to the s. 7 arrears – her revised calculations at Exhibit 31.

[91] As I indicated previously, I find Ms Armstrong to be a credible and reliable witness. Mr. Skippen is unable to point to any specific payments that he has made for s. 7 expenses that he has not been given credit for by Ms Armstrong in Exhibit 31. Mr. Skippen’s own receipts, Exhibit 38, are of no assistance to his argument because he was clear in cross-examination that he is not sure whether he paid those items.

[92] It is not determinative that Ms Armstrong does not have independent documentary proof of each and every expense that she paid for going back nearly ten years. To expect that she would is unreasonable.

[93] On the other hand, I agree with Mr. Skippen that to allow the full amount of expenses for daycare, for example (about $13,000.00), without any documentation at all, would be a bit of a stretch.

[94] I also recognize that, although I have made some concerning observations about Mr. Skippen in these Reasons, he has been an important influence in the lives of his boys and a good father in terms of his involvement with their sports.

[95] Thus, I have decided to apply a discount to the total amount of arrears owing by Mr. Skippen as calculated by Ms Armstrong. Ms Armstrong’s figure is $21,895.39 to the end of 2011. I am deducting $6,500.00 from that amount (50% of the daycare costs claimed by Ms Armstrong) to arrive at a figure of $15,395.39.

[96] Ms Armstrong did not make the calculation for 2012 because of her ignorance of Mr. Skippen’s gross income for that year. I have concluded that Mr. Skippen’s income for each of the years 2011 and 2012 ought to be attributed to him at $50,000.00 gross. That means that Mr. Armstrong’s arrears figure for 2011 is likely understated because it assumes an income for Mr. Skippen less than $50,000.00. On the other hand, I must consider that Ms Armstrong’s income increased between 2011 and 2012, to almost $46,000.00. Taking into account all of the circumstances, I fix the s. 7 arrears owing by Mr. Skippen at $2,500.00 for the year 2012 (half of what was paid by Ms Armstrong on the theory that the parties should have contributed roughly equal to those expenses in that year).

[97] Whatever the total s. 7 arrears figure is calculated to be as per the above parameters, this Court Orders that Mr. Skippen shall pay those arrears at the rate of $300.00 per month commencing June 1, 2013 and on the first day of each month thereafter. This Order is enforceable through the Family Responsibility Office. A Support Deduction Order shall issue.

[98] In 2013 and beyond, this Court Orders that the parties shall pay their proportionate shares of s. 7 expenses for the children based on Ms Armstrong’s gross annual income and an imputed income of $50,000.00 for Mr. Skippen.

[99] The fact that the boy J went to live with Mr. Skippen in late 2009 does not change Mr. Skippen’s responsibility to pay his share of the s. 7 expenses, just as Ms Armstrong continued to pay more than her share for both children.

[100] I considered spelling out for the parties a procedure for having s. 7 expenses contributed to by the other party, however, I expect these parents to behave like responsible adults and be reasonable with each other. Suffice it to say that, generally, it is a good idea to have the expense approved of in advance by the other party (preferably in writing), which approval should not be unreasonably withheld; provide documentary proof of the expense to the other party; and then request the other party's contribution to the expense, whether before or after it is paid by the requesting parent. Of course, whenever possible employment benefits of either party shall be used to defray s. 7 expenses for either child.

[101] All prior Court Orders dividing up responsibility for s. 7 expenses between the boys’ sports and other items are hereby rescinded. Whether those Orders are made again in the future will depend upon a determination of the custody and access issues. Those issues must proceed to trial as soon as possible, preferably before me.

Substantive Issue Number Three - Spousal Support Payable by Mr. Skippen

[102] Mr. Skippen does not challenge Ms Armstrong’s initial entitlement to spousal support upon separation, but he submits that the said entitlement ended when she began working full-time for her current employer. I reject that argument.

[103] In my view, given all of the circumstances including but not limited to the length of the marriage and the respective incomes of the parties in the years following separation, as well as the law as summarized above, Ms Armstrong remained entitled to spousal support on a need basis between 2005 and 2009, inclusive.

[104] Thus, counsel shall calculate the spousal support arrears owing by Mr. Skippen as follows. Again, there is no reason to go back before the year 2005, for the reasons outlined above.

[105] For the year 2005, the income figure for Mr. Skippen is $48,400.10; the income figure for Ms Armstrong is $27,477.00; and the Spousal Support Advisory Guidelines apply, the mid-range figure, rather than the Temporary Order of O’Connell J.

[106] For the year 2006, the income figure for Mr. Skippen is $44,038.00; the income figure for Ms Armstrong is $9,022.00; and the Spousal Support Advisory Guidelines apply, the mid-range figure, rather than the Temporary Order of O’Connell J.

[107] For the year 2007, the income figure for Mr. Skippen is $72,882.00; the income figure for Ms Armstrong is $25,631.00; and the Spousal Support Advisory Guidelines apply, the mid-range figure, rather than the Temporary Order of O’Connell J. or that of Coats J.

[108] For the year 2008, the income figure for Mr. Skippen is $70,754.68; the income figure for Ms Armstrong is $31,027.00; and the Spousal Support Advisory Guidelines apply, the mid-range figure, rather than any Temporary Order.

[109] For the year 2009, the income figure for Mr. Skippen is $106,454.90; the income figure for Ms Armstrong is $38,116.00; and the Spousal Support Advisory Guidelines apply, the mid-range figure, rather than any Temporary Order.

[110] Beyond the year 2009, there is no spousal support payable by either party to the other. By 2010, Ms Armstrong was well settled and earning close to $40,000.00 per year, gross. She no longer had a need for spousal support.

[111] Whatever the total spousal support arrears figure is calculated to be as per the above parameters, this Court Orders that Mr. Skippen shall pay those arrears at the rate of $200.00 per month commencing June 1, 2013 and on the first day of each month thereafter. This Order is enforceable through the Family Responsibility Office. A Support Deduction Order shall issue.

[112] I am giving priority to the child support arrears in ordering that those arrears be paid off by Mr. Skippen at a higher monthly amount than the spousal support arrears, in the best interests of the children.

[113] I have also determined that it would be unfair to expect Mr. Skippen to pay more than $1,000.00 total per month towards arrears, even with an imputed income of $50,000.00. I recognize that O’Connell J. ordered more total support per month in early 2005 based on a lower income for Mr. Skippen, but I am attempting to compensate Ms Armstrong and the children while, at the same time, not crush Mr. Skippen so as to discourage him from getting off of social assistance and start earning decent money.

Conclusion

[114] A Final Order shall issue as per these Reasons for Judgment, largely in favour of Ms Armstrong.

[115] Ms Armstrong is entitled to her costs. If the quantum cannot be agreed upon between the parties, counsel may speak to the trial coordinator in Owen Sound within two weeks of the date of these Reasons to arrange for a further brief court attendance before me in that regard. Filings can be made at that time.

[116] Now, let us focus on the best interests of the children. Custody and access must be determined without delay.

Conlan J.

Released: April 26, 2013

COURT FILE NO.: 04-6209

DATE: 20130426

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JACQUELINE SKIPPEN

(now Armstrong)

Applicant

- and -

THOMAS SKIPPEN

Respondent

REASONS FOR JUDGMENT

Conlan J.

Released: April 26, 2013