COURT FILE NO.: F-2264/09 (Hamilton)
DATE: 2013/09/06

ONTARIO

SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN:

Andre Jefferson Chase

Monica Scholz, for the Applicant

Applicant

• and -

Valerie Pauline Chase

Kanata Cowan, for the Respondent

Respondent

HEARD: May 27, 28, 29, 30 and 31, 2013 and July 24, 2013

REASONS FOR DECISION

I. Introduction

[1] Andre Jefferson (A.J.) Chase and Valerie Pauline Chase separated in 2009 after less than three years of marriage. They had lived together for approximately two years prior to marriage. They have one child, Dante, who is currently five years old (born April 5, 2008). Neither party has other children.

[2] Mr. Chase is 46 years old. He is a successful financial advisor with a bank-owned investment firm. His total income was over $200,000 in each year since 2007.

[3] Ms. Chase is 32 years old. She worked as a bilingual (English/French) financial administrator until she went on maternity leave in March 2008, just prior to Dante’s birth. She earned $46,714 in 2007, the last full year before Dante’s birth. She did not return to work at the end of her maternity leave. She has not worked outside the home since Dante was born.

[4] Following Dante’s birth, Mrs. Chase suffered severe, debilitating, post-partum depression. Her condition continued for approximately six months according to Ms. Chase, or up to a year, according to Mr. Chase. A few days after Dante’s first birthday in April 2009, Ms. Chase left the matrimonial home to stay with her parents, leaving Dante in the care of Mr. Chase. Within a few days, she returned to the matrimonial home, staying until July 24, 2009, Mr. Chase’s 43rd birthday. That day, she again left the matrimonial home and moved in with her parents in Stoney Creek, taking Dante with her. The parties have lived apart since that time.

[5] Ms. Chase and her parents continued to live in Stoney Creek until November 2009, when her parents sold their house. Ms. Chase and her parents moved to a house in Grimsby, which Ms. Chase owns jointly with her parents. Ms. Chase lives in separate quarters in the house, together with Dante when he is in her care. Since May 2010, she has shared these quarters with Eric Bayne, her current romantic partner. Mr. Chase continues to live in the previous matrimonial home in Beamsville, together with Dante when he is in Mr. Chase’s care.

[6] Mr. Chase brought an application dated December 29, 2009, seeking custody of Dante. In Ms. Chase’s answer dated January 18, 2010, she claimed custody of Dante, as well as child support, spousal support, equalization of property and other relief. Neither party has made a claim for divorce.

[7] The property issues were settled by a partial final order of Mr. Justice Gordon dated June 12, 2012, made on consent. In addition, custody and decision-making relating to Dante were settled by a partial final order of Mr. Justice Pazaratz dated May 6, 2013, made on consent, which provides for joint custody. As well, the issue of time-sharing relating to Dante was settled by way of a partial final order made at the commencement of the trial on May 27, 2013. That order provides for equal time-sharing relating to Dante. Dante will reside with each parent on a week about basis, with overnight access to the other parent one night each week.

[8] Prior to settlement of time-sharing relating to Dante, that matter was governed by a temporary order of Mr. Justice Steinberg dated November 24, 2010. Under that order, time-sharing was on a four week cycle, where for the first three weeks Ms. Chase had primary care of Dante during the week until 6:00 PM on Thursday and Mr. Chase had him from then through the weekend. In the fourth week, the responsibilities would switch, with Mr. Chase having more responsibility for care of Dante during the week and Ms. Chase having care of him on the weekend.

[9] Justice Steinberg’s order also required on an interim basis that Mr. Chase pay child support of $2,088 per month (based on an annual income of $262,000) and spousal support of $1,500 per month, in each case commencing December 1, 2010. Prior to that time, as arranged between the parties, Mr. Chase paid support to Ms. Chase in the amount of $2,000 per month without a court order or written agreement being in place.

[10] The trial relating to the remaining issues proceeded over a five day period in May 2013, and final submissions were completed in late July after a two month gap due to scheduling issues. The matters that remain outstanding relate to child support and spousal support. Both parties agree that Mr. Chase should continue to pay child support and spousal support to Ms. Chase under the final order. However, they do not agree on the amount of child support or spousal support that should be paid, nor do they agree on the duration of spousal support. The issue of retroactivity also remains outstanding. As well, the parties do not agree on the date they started living together or the date they separated.

[11] In the balance of these reasons, I will deal with the questions to be determined in the following order:

1. Date of first cohabitation: When did the parties start living together?
2. Date of separation: When did the parties separate?
3. Applicant’s income: What is Mr. Chase’s income for support calculation purposes?
4. Respondent’s income: Should income be imputed to Ms. Chase for support calculation purposes, and if so, how much?
5. Spousal support: How much spousal support should be payable to Ms. Chase and for how long?
6. Child support: How much on-going child support should be payable to Ms. Chase?
7. Benefit/life insurance coverage: To what extent should the parties be required to maintain extended medical/dental and life insurance coverage for the benefit of Dante or the other party?

II. Date of first cohabitation

[12] The parties do not agree on when they started living together. The answer to this question is a factor that may be taken into account in determining the amount and duration of spousal support. However, the difference between the parties’ positions amounts to a matter of months. Given this fact, and the fact that the parties have a child together, the impact on the issue of spousal support would be marginal at best.

[13] In any case, the evidence indicated that parties first met in 2003 when Ms. Chase worked as a bank teller and Mr. Chase as a financial advisor for the related investment firm. The relationship was initially professional, with Ms. Chase performing typing and clerical services for Mr. Chase outside of work hours. Mr. Chase paid her directly for these services. They began dating early in 2004 after Ms. Chase left the bank to work for John Deere Credit. Ms. Chase was then living with her parents in Stoney Creek, and Mr. Chase was living in a small condo he owned in east Hamilton. According to Ms. Chase, they started living together in July 2004, when she moved her clothes and toiletries to Mr. Chase’s condo. According to Mr. Chase, they started cohabiting in late November 2004, when they moved into a house in Beamsville that they jointly purchased. The house purchase closed November 27, 2004. It is common ground that the parties became engaged in early 2005 and got married on November 23, 2006.

[14] On the evidence before me, I have concluded that the parties started cohabiting when they moved into their jointly owned house in Beamsville in late November 2004. It is not disputed that Ms. Chase moved clothes and toiletries to Mr. Chase’s condo by July 2004, keeping them in one drawer of Mr. Chase’s dresser, nor is it disputed that she was staying overnight at the condo. However, she maintained her room at her parents’ house in Stoney Creek, where she left her bedroom furniture and other belongings. She was regularly at her parents place after work, where she was sometimes joined by Mr. Chase, who worked later than she did. She continued to receive her mail at her parents’ house until after she moved to Beamsville in November. As well, the parties did not have a joint bank account or joint credit cards until after they moved to Beamsville. In all the circumstances, I agree with Mr. Chase that the parties started living together after the closing of the house purchase in late November 2004.

III. Date of separation

[15] The parties do not agree on the date when they separated. The answer to this question may be relevant when considering the issue of retroactive support. It is also a factor that may be taken into account in determining the amount and duration of on-going spousal support. However, given that the difference between the parties’ positions again amounts to a matter of months, the impact of this factor on the ultimate issue would once again be marginal.

[16] In any case, the evidence before me indicated that the parties lived together without any serious issues until after the birth of Dante in April 2008. Within a short time after the birth, Ms. Chase experienced symptoms of severe post-partum depression, including delusions and suicidal thoughts. Her parents, Claude and Louise Pepin, moved in with her and Mr. Chase in May 2008 to assist. Ms. Chase sought medical help and was put on anti-depression medication. According to the testimony of Ms. Chase and her parents, she was much improved by July 2008. At that time, she and Dante went to her parents’ cottage for a short period of time with her mother, and Mr. Pepin moved back home.

[17] According to Ms. Chase, she continued to improve following her return to the matrimonial home, and she felt she had recovered by the end of October 2008. However, her relationship with Mr. Chase continued to deteriorate. She found him to be critical and controlling. According to Ms. Chase, by the end of 2008, she suggested counseling to Mr. Chase in order to obtain help with their marital difficulties, since she was considering separation. Both parties saw a counsellor starting in January 2009 and continuing until July 2009. In March 2009, one year after the commencement of her maternity leave, Ms. Chase advised Mr. Chase that she was not returning to work.

[18] In his testimony, Mr. Chase did not seriously dispute the sequence of events related by Ms. Chase. However, he did not agree that Ms. Chase had recovered from her emotional difficulties by the autumn of 2008, and stated that her symptoms continued for at least a year after Dante’s birth in April 2008. He also claimed that the joint counselling sessions were part of Ms. Chase’s treatment for emotional issues and not marriage counselling. He explained his own presence at the counselling sessions as that of a supportive husband. In that regard, I did not have the benefit of any evidence from the counsellor as to the nature of the counselling. Ms. Chase’s counsel did not call the counsellor as a witness, citing cost considerations. Ms. Chase’s counsel sought to introduce the counsellor’s written notes, but Mr. Chase’s counsel did not consent their admission and I did not accept them into evidence. I did, however, accept into evidence a Consent to Services Form dated January 16, 2009 with Dr. Dan Dalton & Associates, Psychological and Counselling Services, signed by both Mr. Chase and Ms. Chase.

[19] I found the issue relating to the precise nature of the 2009 counselling sessions to be a needless distraction. Whatever the reason for it, there is no doubt that by the beginning of 2009, the Chases’ marriage was in serious difficulty and Ms. Chase was considering separation. I accept Ms. Chase’s evidence that her motivation in initiating the joint counselling sessions related to the difficulties in her marriage, and that these difficulties were the focus the counselling sessions. I found it disingenuous for Mr. Chase to suggest otherwise.

[20] In any case, it is common ground that on April 9, 2009, Ms. Chase left the family home to stay with her parents, leaving Dante with Mr. Chase. She stayed away for either a few days (according to Ms. Chase) or up to a week (according to Mr. Chase), and then returned to the family home. The difficulties between the Chases continued after her return.

[21] On July 24, 2009 (Mr. Chase’s 43rd birthday), while Mr. Chase was at work, Ms. Chase left the family home and did not return, taking Dante with her. Her friend Cindy Verrault testified that she assisted Ms. Chase in moving her belongings. According to the evidence of Ms. Chase and her parents, she called her parents that day on a cell phone to advise them she was leaving, and they agreed she and Dante could move in with them. Her parents were then en route to the cottage, and she reached them in their car.

[22] Ms. Chase’s position was that the parties separated on July 24, 2009, the date she left the family home with Dante and did not return. Mr. Chase’s position was that the date of separation was April 9, 2009, when she first left the family home without Dante to stay with her parents. According to Mr. Chase, Ms. Chase had already decided to leave the marriage at that time, and returned to the family home for strategic purposes only. Mr. Chase testified that he found evidence that Ms. Chase had removed financial and other information from his computer, which she would not have been able to do if she had not returned home. Similarly, by returning she had access to certain items relating to Dante that had particular sentimental value, items that she took with her when she left in July. He also relied on email exchanges between the parties in July 2009 which suggest that she had already decided to leave prior to July 24. As well, he relied on the fact that the parties had had intimate relations on only one occasion after her return to the family home in April 2009.

[23] During the reply submissions of Mr. Chase’s counsel, I inquired whether a fair summary of her client’s position on this issue was that the parties separated in April 2009, but Mr. Chase did not know they were separated until July 2009. While Mr. Chase’s counsel did not dispute that characterization, she argued that it was not necessary to prove common intention in order to establish the date of separation.

[24] Having considered the evidence cited by both parties, I have concluded that the date of separation was July 24, 2009, the day the Ms. Chase finally left the family home with Dante and moved in with her parents. Whatever her intention may have been when she left to stay with her parents the previous April, she returned to the family home a short time later and stayed there until her final departure on July 24, 2009. Without doubt, she was still considering separation during that period, and some of the incidents alleged by Mr. Chase would be consistent with someone who considered the failure of her marriage to be a possible or even likely outcome. Nevertheless, I accept Ms. Chase’s evidence that she was still attempting to salvage her marriage during that period. The counselling sessions, however they are characterized, continued during that period and ceased by the time of her final departure in July. Her actions on July 24 were consistent with someone who was moving out. She took belongings with her and confirmed with her parents that that she and Dante could move in with them.

[25] Accordingly, I find that the parties separated on July 24, 2009.

IV. Applicant’s income

[26] In order to determine the extent of Ms. Chase’s entitlement to child support and spousal support, it is necessary to establish Mr. Chase’s income for support purposes. In the case of child support, his income would be established by applying the Ontario Child Support Guidelines.[^1] The same amount would be the starting point in considering the amount of spousal support to the extent that Ms. Chase is entitled to it.

[27] Under section 16 of the Child Support Guidelines, the starting point for determining annual income for child support purposes is “total income” as set out in the taxpayer’s tax return for the relevant year, adjusted in accordance with Schedule III of the Child Support Guidelines. In 2012, Mr. Chase’s total income was $261,825. When he calculated his income for tax purposes, he deducted from his total income the sum of $27,740, being the total amount of “employment expenses” he incurred that year, as listed in the Statement of Employment Expenses included in his 2012 Income Tax Return. According to Mr. Chase’s counsel, this amount should be deducted from his total income in order to calculate Mr. Chase’s income for support purposes, relying on section 1 of Schedule III of the Child Support Guidelines.

[28] It should be noted at this point that whether all or any part of “employment expenses” are deducted from Mr. Chase’s total income in 2012, the resulting income would be in excess of $150,000. Section 4 of the Child Support Guidelines provides that where the income of the payor parent is in excess of that amount, the court may order the payment of child support in an amount different than the table amount that would otherwise be payable if the court considers the table amount to be inappropriate. In the closing submissions, neither party’s counsel relied on section 4 of the Child Support Guidelines to justify a different amount of child support. In light of the evidence before the court and the position taken by counsel, I agree with their assessment that section 4 of the Child Support Guidelines should not be relied on in this case to justify a variation from the table amount that would otherwise be determined under those Guidelines.

[29] While I agree with Mr. Chase’s counsel that there should be a reduction from total income in respect of employment expenses in this case, I do not agree that the reduction should be the full amount of employment expenses claimed by Mr. Chase. As indicated in section 1 of Schedule III of the Child Support Guidelines, not all “employment expenses” are deductible from total income in order to calculate income for support purposes. I agree with Ms. Chase’s counsel that the only employment expense deducted by Mr. Chase in 2012 that he has established should be deducted to calculate income for support purposes is the amount for “allowable motor vehicle expenses”, being $15,653, which is deductible under paragraph 1(f.1) of Schedule III.

[30] Mr. Chase’s counsel relied on paragraph 1(g) of Schedule III to justify deduction of the balance of the “employment expenses” deducted by Mr. Chase in 2012. The other “employment expenses” listed in Mr. Chase’s Statement of Employment Expenses for 2012 consisted of (i) accounting and legal fees, (ii) advertising and promotion, (iii) food, beverages, and entertainment expenses, and (iv) other expenses postage etc. Further details relating to employment expenses were included elsewhere in the tax return.

[31] Paragraph 1(g) of Schedule III provides for deduction of employment expenses deductible under paragraph 8(1)(i) of the Income Tax Act[^2] concerning “dues and other expenses of performing duties.” That provision sets out seven categories of expenses, five of which relate to membership or other dues of various kinds payable by the taxpayer. The other two categories are expenses that the taxpayer is required to pay by the contract of employment consisting of (i) office rent or salary to an assistant or substitute, or (ii) the cost of supplies that were consumed directly in the performance of the duties of employment.

[32] I have considered the other employment expenses deducted by Mr. Chase, as detailed in his 2012 income tax return, and compared them to the categories he was permitted to deduct under paragraph 8(1)(i) of the Income Tax Act. Having done so, I agree with Ms. Chase’s counsel that the information contained in the income tax return does not provide a sufficient basis to determine that those expenses were deductible under that provision, contrary to the position taken by Mr. Chase’s counsel.

[33] Accordingly, I find that Mr. Chase’s income for support purposes in 2012 was $246,172. This amount is obtained by deducting $15,653 in motor vehicle travel expenses from total income of $261,825, as provided for in section 16 of the Child Support Guidelines and paragraph 1(f.1) of Schedule III of the Child Support Guidelines.

V. Respondent’s income

[34] As already indicated, Ms. Chase has not been employed since prior to the date of separation on July 24, 2009. Mr. Chase’s position is that in order to calculate the amount of support he is required to pay, income should be imputed to Ms. Chase, as provided for in section 19 of the Child Support Guidelines.

[35] Before dealing with the substance of this issue, it is appropriate to first address an issue raised by Ms. Chase’s counsel for the first time during her closing submissions. Ms. Chase’s counsel pointed out that after Ms. Chase filed her answer in January 2010 claiming child support and spousal support, Mr. Chase did not file a reply stating that income should be imputed to Ms. Chase for purposes of calculating her entitlement to child support and spousal support. According to Ms. Chase’s counsel, Mr. Chase should be precluded from raising this issue now since it was not pleaded.

[36] To some extent, I am sympathetic to the point raised by Ms. Chase’s counsel. If a party is going to take the position that income should be imputed to the other party for purposes of calculating support, adequate notice should be given to the other party. The appropriate way of providing such notice is to make reference to the issue in the pleadings. However, I have difficulty with the fact that Ms. Chase’s counsel raised this issue for the first time during her closing submissions.

[37] In her opening statement on the first day of the trial, Mr. Chase’s counsel clearly stated her position that income should be imputed to Ms. Chase for support calculation purposes. In the opening statement by Ms. Chase’s counsel that followed immediately after, she disputed that position as a matter of substance, but did not object to this issue being raised based on Mr. Chase’s failure to refer to the issue in his pleadings. Had Ms. Chase’s counsel done so, an appropriate response from Mr. Chase’s counsel would have been to seek leave to file a reply raising this issue. In these circumstances, I would have been required by subsection 11(3) of the Family Law Rules[^3] to grant leave unless doing so would disadvantage Ms. Chase in a way for which costs or an adjournment could not compensate. I would therefore have been in a position to canvas any resulting prejudice, including whether Ms. Chase had adequate notice that this issue would be raised, and determine whether an adjournment or a cost order could adequately address the issue. By failing to raise the issue until her closing submissions, Ms. Chase precluded this process from playing out. Instead, the trial proceeded, and the issue of whether income should be imputed to Ms. Chase was a significant issue on the evidence presented by both parties.

[38] Given the circumstances I have outlined, I have concluded that I should proceed to consider the issue of whether income should be imputed to Ms. Chase for the purpose of determining her entitlement to child support and spousal support. The issue is clearly joined on the evidence before me, and the court has the authority to determine the issue pursuant to section 19 of the Child Support Guidelines. I also note that Ms. Chase’s counsel did not allege that she suffered actual prejudice as a result of Mr. Chase’s failure to refer to the issue in his pleading, and specifically did not allege that she did not have adequate notice that it would be necessary to address the issue at trial. Indeed, the evidence led on Ms. Chase’s behalf indicated that her counsel was well aware that it would be a significant issue.

[39] Under section 19 of the Child Support Guidelines, the court has authority to impute income to a parent or spouse to the extent that it considers appropriate in the circumstances. Under paragraph 19(a), these circumstances include where the parent or spouse is intentionally under-employed or unemployed other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

[40] The leading case in Ontario relating to the application of this provision is Drygala v. Pauli.[^4] Under the framework provided for in that case, the trial judge is required to consider three questions when applying that provision. First, is the parent or spouse intentionally under-employed or unemployed? Second, if so, is the intentional under-employment or unemployment required by her reasonable educational needs, her reasonable health needs or the needs of a child? Third, if the answer to the second question is no, what income is it appropriate to impute in the circumstances?[^5]

[41] By way of factual background, as previously indicated, Ms. Chase has not worked outside the home since March 2008, when she went on maternity leave just prior to Dante’s birth. Her last position was a bilingual (English/French) financial administrator with a financial services firm, earning $46,714 in 2007. Among other duties, she was involved in the preparation of standard form equipment leases, based on information provided by sales associates and directly by customers. She had previously been involved with other aspects of equipment leases with same company and with John Deere Credit since 2004. Prior to that, she had been a balancing teller and customer service representative with a Canadian bank since 2001, when she finished college with an office administration certificate.

[42] According to the testimony of Ms. Chase, the only effort she had made to find employment outside the home since the separation was to apply for three jobs in the financial services sector starting in January 2013, without success. As well, commencing in the summer of 2012, she developed a business plan for a daycare business she proposed to open in St. Catharines with her friend Valerie Perrault, who currently works in that field for another employer. Under that business plan, Ms. Chase would initially be paid an annual salary of $18,000 to perform administrative and support services for the daycare centre. As of the time of trial, she was waiting to hear from a financial institution whether they would provide financing for this venture, in the form a loan guaranteed by Ms. Chase’s father.

[43] In her closing submissions, Mr. Chase’s counsel argued that for support purposes, an annual income of $50,000 should be imputed to Ms. Chase. She also argued that in each succeeding year, support payment should be adjusted based on the greater of Ms. Chase’s actual income for the prior year and an imputed income of $50,000 plus 2% per year. According to Mr. Chase, there was no health reason for her not to return to work as of the date of separation. As well, Ms. Chase’s responsibilities for care of Dante were not significantly different than those of Mr. Chase, who continued to work full time. Mr. Chase’s counsel also noted that since the separation, while working full time, Mr. Chase continued to update and upgrade his professional qualifications by taking continuing education courses. Ms. Chase had done nothing to maintain or upgrade her qualifications. To support the argument that there was work available at that salary that Ms. Chase would be qualified to do and within her geographical reach, Mr. Chase’s counsel relied on the results of online job searches conducted by Mr. Chase. His counsel dismissed Ms. Chase’s job search efforts to date as inadequate and her plans to open a daycare centre as unrealistic.

[44] The position of Ms. Chase’s counsel was that no amount of income should be imputed to her for support purposes. According to Ms. Chase, the decision that she would stay at home with Dante and not return to work at the end of her maternity leave was made with Mr. Chase’s concurrence and reflected their joint intention as to the role she would play in their marriage. In any case, given Ms. Chase’s continuing upset from what she described as controlling and verbally abusive behaviour by Mr. Chase, she would have been unable to contemplate working outside the home for some period of time. From the time of their separation until Justice Steinberg’s temporary order in November 2010, she had primary care of Dante and was unable to work for that reason. From that date until final settlement of the time-sharing arrangements in May 2013, the time-sharing arrangements in place under Justice Steinberg’s temporary order were not conducive to her being able to find a job of the nature she performed before. In any case, Ms. Chase disputed Mr. Chase’s claim that the financial services job searches conducted by him turned up positions that she was qualified to do or within her geographic reach. Ms. Chase indicated that she wanted to pursue her proposed daycare business, which would provide her with flexibility in respect of Dante’s care. According to her counsel, it was not appropriate to impute any income to Ms. Chase before the business was up and running.

[45] Having considered the evidence before me and the submissions of counsel, I have concluded that it is appropriate to impute income to Ms. Chase for support purposes.

[46] Applying the first part of the three-part framework set out in Drygala v. Pauli, I find that her unemployment is intentional in the sense that it is voluntary, as contemplated by the reasoning in that case.[^6] She clearly made no effort to find employment until the summer of 2012, when she began to develop a business plan to open a daycare business. She did not apply for any other positions until early 2013, when she applied unsuccessfully for three positions in the financial services area. Had she applied for employment prior to that time, I am satisfied that she would have been able to find a position in the financial services area in a reasonable time, given her qualifications and experience. While I commend her for her initiative in her plans to open a daycare centre, I agree with Mr. Chase’s counsel that it is not appropriate for her to expect Mr. Chase to subsidize these efforts by way of higher support payments than he would otherwise be required to pay.

[47] Turning to the second part of the framework, on the evidence before me, there is no health reason why Ms. Chase cannot work. On the testimony of both parties, Ms. Chase had recovered from the symptoms of severe post-partum depression at some time prior to the date of separation in July 2009. As well, while I agree with Ms. Chase’s counsel that childcare responsibilities would have provided grounds for not seeking employment for a transition period after separation, that period has long since ended. By December 2010, a temporary timesharing arrangement was in place which left Mr. Chase in care of Dante in excess of 40% of the time, as provided for in Justice Steinberg’s temporary order dated November 24, 2010. In my view, it would have been reasonable for Ms. Chase to be seeking employment by that time. Under the partial final order made May 27, 2013, Dante is now in the care of the parties on an equal timesharing basis, and during the school year Dante is attending full day kindergarten in Grimsby. Those arrangements do not preclude Ms. Chase from working outside the home.

[48] Moving to the third part of the framework, I find that the appropriate amount of income to impute to Ms. Chase is $40,000 per annum. Should her actual income for support purposes as calculated pursuant to the Child Support Guidelines exceed that amount in any year, her income for support purposes will be that higher amount commencing July 1 of the next year. From the evidence before me, I am satisfied that there should be work available in the financial services field that Ms. Chase would be qualified to perform and that she could obtain within a reasonable period given her qualifications and experience. However, I am not satisfied on the evidence that it was reasonable to expect Ms. Chase to obtain employment at a salary higher than the salary she received in the last full year that she worked before Dante was born and that such amount would increase by a set amount each year. In all the circumstances, including the fact that Ms. Chase has been out of the work force since March 2008, I find an imputed income of $40,000 per year to be appropriate in the circumstances, rather than the higher and escalating amount suggested by Mr. Chase’s counsel.

[49] As well, to the extent required to calculate child support for prior periods, I find that the appropriate date to commence imputing income to Ms. Chase to be June 1, 2011, six months after the effective date of Justice Steinberg’s temporary order. This finding is consistent with my findings above that it would have been reasonable for Ms. Chase to be seeking employment by December 2010, and that Ms. Chase should have been able to find a position in the financial services area in a reasonable time.

VI. Spousal support

[50] How much spousal support should be payable to Ms. Chase and for how long?

[51] As previously indicated, Mr. Chase is currently paying interim spousal support as well as interim child support to Ms. Chase under Justice Steinberg’s temporary order dated November 24, 2010. Both parties agree that Mr. Chase should continue to pay spousal support to Ms. Chase under the final order, but they do not agree on the amount or duration of those payments.

[52] According to Ms. Chase’s counsel, the basis for Mr. Chase’s obligation to pay spousal support in this case is both compensatory in nature as well as needs-based. The compensatory element arises from Ms. Chase’s intended role in their relationship as primary caregiver for Dante, and the economic consequences for Ms. Chase in assuming this role. The needs based justification is manifested by the disparity in the standard of living of Ms. Chase when compared to that of Mr. Chase. In order to determine the amount and duration of Mr. Chase’s spousal support obligation, Ms. Chase’s counsel relied on the Spousal Support Advisory Guidelines. Applying those Guidelines and based on the facts already determined, the monthly spousal support payments would range from a low of $4,397 to a high of $5,895, with a midpoint of $5,145. Under the Guidelines, there would be no automatic end date for payments for an initial spousal support order, but the suggested duration before review and possible variation would be a minimum of five years and a maximum of 17 years. Ms. Chase’s counsel therefore submitted that the spousal support order should be of indefinite duration, subject to later variation upon a motion to change to the extent justified.

[53] Mr. Chase’s position is that an on-going spousal support order is not justified in this case beyond a short transitional period. His counsel disputed that Ms. Chase had established an on-going need for spousal support beyond that period, or that Ms. Chase had suffered any economic disadvantage as a result of the relationship, including her role as a parent. In the final order suggested by his counsel, Mr. Chase’s spousal support obligation to Ms. Chase would be reduced to $1,000 per month effective June 1, 2013, and would terminate altogether as of the end of this year.

[54] Under section 30 of the Family Law Act,[^7] every spouse has the obligation to support the other spouse in accordance with the other spouse’s need, to the extent that he or she is capable of doing so. Section 33 of the Family Law Act provides the statutory authority to make a spousal support order upon the termination of the relationship. The purposes of a spousal support order are set out in subsection 33(8), that is, (a) recognizing the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse, (b) sharing the economic burden of child support equitably, (c) making fair provision to assist the spouse to become able to contribute to his or her own support, and (d) relieving financial hardship. As well, subsection 33(9) sets out the considerations the court is to take into account in determining the amount and duration of spousal support.

[55] Counsel for the parties referred to the leading cases for interpreting the statutory provisions relating to entitlement to spousal support, including the Supreme Court of Canada decisions in Moge v. Moge[^8] and Bracklow v. Bracklow.[^9] The latter decision in particular recognized that entitlement to spousal support may be compensatory, needs-based or contractual in nature, depending on the circumstances of the particular case. Ms. Chase’s counsel also relied on the 2008 Ontario Court of Appeal decision in Fisher v. Fisher[^10] with respect to the application of the Spousal Support Advisory Guidelines, which were released in final form in July 2008.

[56] Having considered the evidence before the court and the submissions of counsel, I have concluded that Ms. Chase has established her entitlement to on-going spousal support. In my view, such entitlement is justified in this case primarily on a needs-based analysis, rather than being compensatory in nature.

[57] In her justification of Ms. Chase’s entitlement to spousal support as compensatory, her counsel relied on, among other things, Ms. Chase’s testimony as to her intended role in their relationship once Dante was born. According to Ms. Chase, the mutual intention of the parties was that she would be the primary caregiver for Dante, and that her career would be subordinated to that role. She also testified that prior to Dante’s birth, Mr. Chase had discouraged her from pursuing higher paying positions in furtherance of this mutual intention. Mr. Chase disputed that such was the case, noting that Ms. Chase had worked outside the home continuously since leaving school until just prior to Dante’s birth, with the intention of returning to work after the standard one year maternity leave.

[58] Having considered the evidence led by both parties on this issue, I have concluded that Ms. Chase did not establish a mutual intention that Ms. Chase would subordinate her career to child-rearing responsibilities, with resulting adverse economic consequences for Ms. Chase. When she went on maternity leave in March 2008, her intention was to return to work after a one year maternity leave. On her own evidence, she only advised Mr. Chase of her intention not to return to work near the end of that period, at a time when her relationship with Mr. Chase was in serious difficulty. They separated only a few months later in July 2009. By December 2010, a temporary time-sharing arrangement was in place under Justice Steinberg’s temporary order, which left Dante in Mr. Chase’s care a significant percentage of the time. I have already found that it would have been reasonable for Ms. Chase to be seeking employment by that time, and that Ms. Chase would have been able to find a position in the financial services area in a reasonable time. In all the circumstances, in my view, Ms. Chase would not be entitled to spousal support going forward based primarily on compensatory considerations.

[59] Notwithstanding that conclusion, I find that Ms. Chase is entitled to on-going spousal support on a needs-based analysis. In order to establish her need for on-going spousal support, Ms. Chase relied in part on a series of financial statements, the most recent of which was sworn on June 20, 2011. The only income disclosed on that statement was child support and spousal support received from Mr. Chase pursuant to Justice Steinberg’s November 2010 temporary order in the amount of $3,588, plus $478 for child tax benefits or rebates, resulting in a total monthly income of $4,066. The statement also disclosed monthly expenses of $3,665, including utilities and other household expenses shared with her parents. While that financial statement shows a surplus of income over expenses, Ms. Chase’s testimony was that she would not be able to meet her expenses without financial assistance from her father, including money that he loaned her for her half of the down payment of the house in Grimsby in 2009, as well as funds to purchase a car and for legal fees relating to this application. By contrast, Mr. Chase’s financial statement sworn on April 22, 2013 discloses monthly income of $18,559, as well as monthly expenses of $21,848, indicating a disparity in the standard of living between the parties.

[60] Mr. Chase’s counsel argued that I should not accept Ms. Chase’s testimony nor her financial statements as establishing her on-going need for spousal support. In particular, her most recent financial statement indicated a surplus of income over expenses and does not disclose the loans from her father that she claims to owe, nor has she provided other reliable evidence as to the existence of those loans. Mr. Chase’s counsel also noted that his financial statement indicated an excess of expenses over income, as well as significant debts.

[61] Mr. Chase’s counsel also argued that some portion of Ms. Chase’s expenses should be attributed to her partner Mr. Bayne, whose financial circumstances have limited his ability to contribute financially to household expenses. The evidence indicated that Mr. Bayne was laid off from his employment shortly after he started to cohabit with Ms. Chase, and he subsequently took courses at Mohawk College in order to upgrade his qualifications, while collecting Employment Insurance. He did not return to work until January 2013, but was working only part time as of the time of trial. Mr. Bayne’s evidence was that he covered his own personal expenses and also contributed to grocery expenditures, but he did not otherwise contribute to household expenses to any significant extent.

[62] Having considered the evidence led by both parties, I have concluded that Ms. Chase has established her need for on-going spousal support, as well as Mr. Chase’s ability to provide it. Her financial statements, although less than satisfactory in some respects, indicated relatively modest expenses in keeping with her limited income. I am satisfied from her testimony that she would be unable make ends meet without financial assistance from her father, including the loans referred to above. By contrast, Mr. Chase is a high income earner with the means to provide spousal support consistent with his obligations. As well, the evidence did not support Mr. Chase’s position that any significant portion of Ms. Chase’s expenses should be attributed to Mr. Bayne.

[63] Having established Ms. Chase’s entitlement to spousal support, the next issue for consideration is the amount and duration of support. Ms. Chase’s position is that the amount of spousal support should be determined by applying the Spousal Support Advisory Guidelines. In her submission, the monthly support payment should be at the midpoint suggested by the Guidelines if Mr. Chase is also required to provide extended medical and dental coverage for Ms. Chase and Dante, and at the high level suggested by the Guidelines if such coverage is not required. Ms. Chase’s counsel also took the position that there should be no specified date for termination or review of the order, as contemplated by application of the Guidelines, leaving opening the possibility for a variation in the future upon a motion to change based on a material change in circumstances.

[64] The position of Mr. Chase’s counsel was that the Spousal Support Advisory Guidelines should not be used to establish the amount of spousal support in this case, arguing that Ms. Chase had not established a need for support at the level indicted by the Guidelines. Counsel also noted that the Guidelines did not have the force of law; rather, the Guidelines are described in the case law as a useful tool in a judge’s determination of spousal support, there being more than one route available to arrive at an appropriate result.[^11]

[65] In this case, I agree with Ms. Chase’s counsel that the Spousal Support Advisory Guidelines provide the appropriate basis for determining the amount of spousal support to be awarded. Once a spouse’s entitlement to spousal support has been established, the Guidelines provide an appropriate means of determining the amount of spousal support within the suggested range unless particular circumstances apply to justify a different result. In my view, no such circumstances apply in this case, and no reasonable alternative means of determining an appropriate amount of spousal support has been suggested or is appropriate on the evidence.

[66] Given the order I am making with respect to coverage for extended health and dental benefits for Ms. Chase and Dante (as outlined below under “Benefits/life insurance coverage”), it is unnecessary for me to consider Ms. Chase’s position that spousal support should be at the high level suggested by the Spousal Support Advisory Guidelines in the absence of such coverage. In any case, in my view, the evidence before me would not have justified spousal support at that level even in the absence of such coverage.

[67] In all the circumstances, I agree with Ms. Chase’s counsel that it would be appropriate in this case that the monthly spousal support payment should be in the mid part of the range suggested by the Spousal Support Advisory Guidelines. The final order will therefore require Mr. Chase to pay spousal support in the amount of $5,000 per month, effective January 1, 2010. On January 1, 2016, the amount of spousal support will reduce to $2,500 per month until the end of 2016, when the spousal support obligation will terminate. In my view, this result is appropriate having regard to the need demonstrated by Ms. Chase and Mr. Chase’s financial means, taking into account, among other things, the length of their relationship, their joint child care responsibilities, as well as Ms. Chase’s age, health and employment prospects.

[68] With respect to the duration of the order, I decided against an indefinite term for support. This decision was based on Ms. Chase’s relative youth and her prospects of attaining economic self-sufficiency in the future, as well as the principally non-compensatory justification for a spousal support order in this case. I also considered the possibility of an order of indefinite duration with an automatic review feature, which would have permitted Mr. Chase to bring a motion to change after a specified period without demonstrating a material change in circumstances. However, I rejected this alternative, taking into account previous case law that indicated that review provisions should be the exception and not the norm.[^12] Instead, the spousal support order has a duration of seven years, with a step down in the last year of the order as a transitional measure. The duration of the order is therefore at the lower end of the period that would otherwise be contemplated by the Guidelines for possible variation of the spousal support obligation. In my view, that is the appropriate time to terminate the obligation in the circumstances of this case. Should circumstances develop in the future to justify a different result, the onus will be on the parties to bring a motion to change to the extent permitted by law.

[69] With respect to the effective date of the order, I was mindful of the principles set out by the Supreme Court of Canada in Kerr v. Baranow.[^13] In that decision, the court held that principles similar to those applicable to retroactive child support orders, as set out in that court’s previous decision in S. (D.B.) v. G. (S.R.),[^14] also generally apply to determine the suitability of making a retroactive spousal support order.[^15] In the case of a spousal support order, the relevant factors to be considered in determining whether a retroactive order should be made are as follows:

(a) Whether the payee spouse has a reasonable excuse why support was not sought earlier;

(b) Hardship occasioned by a retroactive order;

(c) The conduct of the payor spouse; and

(d) The circumstances of the payee spouse.[^16]

[70] If it is determined that a retroactive order should be made, Kerr v. Baranow also provides guidance with respect to determining the effective date of the order. In this regard, the court cited with approval the statement in S. (D.B.) v. G. (S.R.) that the "general rule" and "default option" for the effective date of the order would be the date that payee spouse gave effective notice to the payor spouse of his or her intention to seek support.[^17] That date will often be the date that the payee spouse commenced proceedings seeking spousal support or such earlier date as the payee spouse provided sufficient notice of his or her intention to do so.

[71] After considering the foregoing factors, I have determined that I am justified in this case in ordering retroactive spousal support, using the term “retroactive” in the same sense as it is used in Kerr v. Baranow, that is, to describe an obligation having effect prior to the date of my decision.[^18] I have further determined that the effective date of the order will be January 1, 2010.

[72] On the evidence before me, Ms. Chase’s need for spousal support was clear following the date of separation and continued to the time of trial. In addition, she clearly provided notice of her intention to seek spousal support in her answer filed in January 2010 to Mr. Chase’s December 2009 custody application. There is no evidence of her providing any prior notice to Mr. Chase of her intention to do so. As well, from the financial information before the court relating to Mr. Chase, I am satisfied that imposing such an order will not cause him hardship that would justify a different effective date for the order.

[73] Ms. Chase’s position was that the obligation to pay spousal support should commence August 1, 2009, shortly after the date of separation. However, as already indicated, there was no evidence before me that Ms. Chase provided any notice to Mr. Chase of her intention to seek an order for spousal support before January 2010. As well, the evidence of both parties was that as arranged between them, Mr. Chase paid Ms. Chase $2,000 in total support commencing in September 2009 without the benefit of a support order or written agreement. Even though the monthly amount paid prior to that date was substantially less than the combined amount that would otherwise have been payable for child support and spousal support, I see no reasonable basis on the evidence for ordering an effective date for spousal support prior to January 2010, the date of effective notice in this case.

[74] In reaching this conclusion, I also considered Ms. Chase’s position that because of abusive conduct by Mr. Chase, she was not emotionally able to assert a spousal support claim immediately after their separation. However, I do not agree that the evidence supports her allegation of abusive conduct. It was clear from the evidence that in the aftermath of Ms. Chase’s severe post-partum depression, in her view, she was unable to derive sufficient emotional support from her husband, which contributed to the demise of their relationship. It was also clear from the evidence that there was emotional distress for both parties, leading to conduct that each of them likely came to regret in retrospect. However, in my view, such conduct by either party did not justify a date for commencement of spousal support earlier than January 2010.

[75] I also note that the final order provides for the same level of spousal support for the entire period since January 2010, even though the figure is derived from 2012 income amounts. Based on the notices of assessment for Mr. Chase filed as evidence in this application, Mr. Chase’s annual income has been fairly stable for the last several years, except in 2011, when his total income was $317,981, over $56,000 more than in 2012. Mr. Chase’s testimony on this point, which I accept, was that this variation income was due to special circumstances that are not expected to recur. In these circumstances, and given that the application of the Spousal Support Advisory Guidelines results in a suggested range of spousal support payments rather than an absolute number, I concluded that no variation in the amount of spousal support payable for prior periods was required in this case.

[76] Accordingly, the final order will require Mr. Chase to pay spousal support to Ms. Chase in the amount of $5,000 per month, effective January 1, 2010. On January 1, 2016, the amount of spousal support will reduce to $2,500 per month until the end of 2016, when the spousal support obligation will terminate. Mr. Chase will receive credit for amounts paid for interim spousal support under the temporary order of Justice Steinberg dated November 24, 2010. He will also receive credit against his spousal support obligation with respect to support payments made for the period from January 1, 2010 to November 30, 2010 to the extent provided for under the heading “Child Support” below.

VII. Child support

[77] How much on-going child support should be payable to Ms. Chase?

[78] Given the equal time-sharing arrangements relating to Dante currently in place, section 9 of the Child Support Guidelines applies in this case. That section provides that where a parent or spouse has physical custody or exercises a right of access to a child for at least 40% of the time, the amount of support ordered shall be determined by taking into account:

(a) The table amounts for each parent (paragraph 9(a));

(b) The increased costs of shared custody arrangements (paragraph 9(b)); and

(c) The conditions, means, needs and other circumstances each parent and the child (paragraph 9(c)).

[79] Mr. Chase’s position is that the amount of on-going child support payable to Ms. Chase should be determined by taking the table amount for her imputed income and deducting that amount from the table amount for Mr. Chase’s income for support purposes, as provided for in paragraph 9(a) of the Child Support Guidelines. According to Mr. Chase’s counsel, the evidence did not justify any increase in this amount by reason of the factors set out in paragraphs 9(b) and 9(c). Based on Mr. Chase’s 2012 income for support purposes of $246,172 and an imputed income for Ms. Chase of $40,000, the table amounts would be $1,975 for Mr. Chase and $360 for Ms. Chase. Setting off these amounts, the monthly child support payable to Ms. Chase would be $1,615.

[80] Ms. Chase’s position is that Mr. Chase should pay the full guideline amount of child support – there should be no reduction by reason of any income imputed to her. Her counsel relied in particular on paragraph 9(c) of the Child Support Guidelines, arguing that any reduction in support from the full guideline amount would create too great a disparity in the living standards of the two households. She drew a parallel to the situation in Ward v. Ward,[^19] where the court ordered temporary child support in a shared custody situation based on the payor husband’s full guideline amount, without any reduction based the wife’s much smaller income.

[81] The leading case for consideration of child support in joint custody situations is the later decision of the Supreme Court of Canada in Contino v. Leonelli-Contino.[^20] In that case, the court referred to the simple set off contemplated by paragraph 9(a) of the Child Support Guidelines as the preferable starting point for the analysis, but noted that it must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, based on the evidence before the court.[^21] The court goes on to state as follows:

The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.[^22]

[82] When considering Mr. Chase’s obligation to pay spousal support to Ms. Chase, I have already determined that there is a disparity in standard of living between Mr. Chase and Ms. Chase as part of the needs-based analysis that led me to conclude that spousal support should be payable in this case. As a result, I have ordered the payment of spousal support to Ms. Chase in an amount that is significantly more than the amount payable under Justice Steinberg’s temporary order until the end of 2016. Taking this additional income into account, I am not satisfied that the evidence establishes a variation in the standard of living that Dante would enjoy as he moves between the households of Mr. Chase and Ms. Chase that would justify an amount of child support greater than set-off amount.

[83] Accordingly, the final order will require Mr. Chase to pay child support to Ms. Chase for the child Dante on an on-going basis in the amount of $1,615 per month. The final order will also require the parties to exchange income tax returns and notices of assessment by June 1 of each year commencing in 2014 for so long as Dante is dependent, with child support to be adjusted as of July 1 based on the set-off of the parties’ table obligations. Mr. Chase’s table obligation shall be based on his actual income in the prior calendar year. Ms. Chase’s table obligation shall be based on her actual income for the prior year or $40,000, whichever is greater. The final order will also require the parties to share special or extraordinary expenses referred to in section 7 of the Child Support Guidelines in proportion to their respective incomes.

[84] With respect to the effective date for the child support order, in my view, the same reasoning applies as indicated above with respect to spousal support. Accordingly, the effective date for the obligation to pay child support should be January 1, 2010.

[85] On the basis previously set out, the amount of child support payable on an on-going basis will be $1,615 per month. In order to determine the amount of child support that should be payable for prior periods, it is appropriate to take into account the following additional factors: (a) the effective date for imputing income to Ms. Chase, as previously determined; (b) Mr. Chase’s income for support purposes for prior periods; and (c) the table obligations under the Child Support Guidelines in effect at the relevant time (which were varied as of December 31, 2011).

[86] On the first point, I need to take into account my previous finding that income should be imputed to Ms. Chase in the amount of $40,000 effective June 1, 2011. Given that finding, the amount of child support payable for the period from January 1, 2010 to May 31, 2011 would be the full table obligation based on Mr. Chase’s income for support purposes, without any set-off based on an imputed income for Ms. Chase. After that date, the amount of child support payable would be the set-off amount after taking into account Ms. Chase’s table obligation based on an imputed annual income of $40,000.

[87] In addition, I need to determine Mr. Chase’s income for support purposes for prior periods. In this regard, I am mindful of the fact that had a final order on similar terms been in place on January 1, 2010, the amount of child support payable would not have been the same, since that amount was determined based on 2012 income.

[88] In particular, the child support payment in effect from January 1, 2010 to June 30, 2010 would have been based on Mr. Chase’s total income in 2008 of $241,794, less the amount of any employment expenses that he would be permitted to deduct pursuant to Schedule III of the Child Support Guidelines, including specifically the amount of any allowable motor vehicle expenses. The amount of child support payable would have been adjusted as of July 1, 2010, based on his 2009 total income of $262,641, again less the amount of any permitted employment expenses. There would have been another adjustment as of July 1, 2011, based on his 2010 total income of $266,501, again less the amount of any permitted employment expenses. There would have been a further adjustment as of July 1, 2012, based on his 2011 total income of $317,981, again less the amount of any permitted employment expenses. For each of those years, Mr. Chase’s notices of assessment were placed in evidence, but not his tax returns. As a result, the amount by which his total income should be reduced for this reason cannot be determined with precision on the evidence before me. It appears, however, that the aggregate amount of child support payable for prior periods would have been higher than if the child support order were based on Mr. Chase’s 2012 income for support purposes.

[89] The foregoing analysis of amounts that would have been payable had a child support order been in effect on January 1, 2010, while instructive, is not determinative of the amount of retroactive child support that should be payable. When determining the amount of child support prospectively, it is normally appropriate to base the monthly amount payable on the payor’s income for the period year, since the payor’s annual income for the current period may not be known with certainty. However, the same reasoning does not apply when determining the amount of child support payable for a prior period. In those circumstances, it is normally appropriate, in my view, to use the payor’s actual income for the relevant period to determine the amount of child support payable. On that basis, an order for child support in the amount of $1,615 per month is appropriate, at least for the period from January 1, 2012 going forward. As previously indicated, the amount is the set-off amount of Mr. Chase’s table obligation based on his 2012 income for support purposes of $246,172 and Ms. Chase’s table obligation based on her imputed income of $40,000 for that period.

[90] I have also concluded that it is appropriate in the circumstances of this case to set Mr. Chase’s income for child support purposes for the purposes at the same level of $246,172 for the period from January 2010 to December 2011. In that regard, I am exercising my discretion under subsection 17(1) of the Child Support Guidelines, which permits the court to determine an amount of income for support purposes that is different than the payor’s actual income for the relevant period where the court is of the opinion that the latter amount would not be the fairest determination of that income. In doing so, “the court may have regard to the [payor’s] income over the last three years, and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”

[91] In that regard, I have concluded that the amount of Mr. Chase’s income for support purposes for 2010 and 2011 that would otherwise be determined under the Child Support Guidelines would not be the fairest determination of that income, and that it would be fair and reasonable to determine his income to be $246,172 for each of those periods. As I noted previously, based on Mr. Chase’s notices of assessment filed in evidence, his annual income has been fairly stable for the last several years, except in 2011, when his total income was $317,981, over $56,000 more than in 2012. Mr. Chase’s testimony on this point, which I have accepted, was that this variation income was due to special circumstances that are not expected to recur.

[92] Accordingly, the final order will provide that effective January 1, 2012, Mr. Chase shall pay child support to Mr. Chase in the amount of $1,615 per month, being the set-off amount of Mr. Chase’s table obligation of $1,975 based on his 2012 income for support purposes of $246,172 and Ms. Chase’s table obligation of $360 based on an imputed income of $40,000.

[93] For the period June 1, 2011 to December 31, 2011, the child support obligation will be in the amount of $1,599 per month, being the set-off amount of Mr. Chase’s table obligation of $1,966 based on his income for support purposes of $246,172 and Ms. Chase's table obligation of $367 based on an imputed income of $40,000. The amounts are slightly different, since the Child Support Table was amended effective December 31, 2011.

[94] For the period January 1, 2010 to May 31, 2011, the child support obligation will in the amount of $1,966 per month, being Mr. Chase’s table obligation on his income for support purposes of $246,172. There will be no set-off based on Ms. Chase’s income, given my previous finding that no income will be imputed to Ms. Chase prior to June 1, 2011.

[95] Mr. Chase will receive credit for amounts paid for interim child support under the temporary order of Justice Steinberg dated November 24, 2010. He will also receive credit against his child support obligation with respect to support payments made for the period from January 1, 2010 to November 30, 2010 in the amount of $1,966 per month, with the balance of the payments made being credited against his spousal support obligation.

VIII. Benefit/life insurance coverage

[96] To what extent should the parties be required to maintain extended medical, dental and life insurance coverage for the benefit of Dante and the other party?

[97] The order requested by Ms. Chase would require Mr. Chase to provide extended medical and dental coverage for the benefit of Dante and herself as long as coverage is available through his place of employment. Mr. Chase would also be required to maintain in place life insurance coverage available through his place of employment for the benefit of Ms. Chase and Dante. Mr. Chase’s financial statement sworn April 23, 2013 indicated that there is a term life insurance policy in place through his place of employment in the amount of $215,000, naming Dante as the beneficiary. The evidence before me did not indicate how much life insurance coverage was available for the benefit of Ms. Chase or the extent to which such coverage was in place at the time of separation.

[98] In his evidence, Mr. Chase stated that he had no objection to maintaining extended medical and dental coverage for the benefit of Ms. Chase and Dante to the extent available. As well, Mr. Chase’s counsel took the position that each party should maintain any life insurance coverage in favour of Dante that was in place at the time of separation. Such an order would require Ms. Chase to reinstate the life insurance coverage that she had in place in favour of Dante, which she allowed to lapse after separation because she could no longer afford to pay the premiums, according to her testimony.

[99] In all the circumstances, including the positions taken by the parties with respect to extended medical and dental coverage, the final order will require each party to provide extended medical and dental coverage for Dante as long as coverage is available through their respective places of employment and Dante is eligible for support. Mr. Chase will also be required to provide such coverage for Ms. Chase as long as he continues to be required to pay spousal support to her.

[100] With respect to life insurance coverage, the final order will require Mr. Chase to irrevocably designate Dante and Ms. Chase as beneficiaries under any life insurance policies available through his place of employment, for as long as Mr. Chase is required to pay child support (in the case of Dante) or spousal support (in the case of Ms. Chase). The minimum benefit for each beneficiary will be equal to the amount in place at the date of separation.

[101] The final order will also prospectively require Ms. Chase to irrevocably designate Dante as the beneficiary under any life insurance policy available through her place of employment, for as long as Dante is eligible for child support. The minimum benefit will be equal to the amount in place under any life insurance policy that Ms. Chase maintained for Dante’s benefit at the date of separation. In this regard, I agree with the position taken by Ms. Chase’s counsel that it is not reasonable from a financial standpoint to require Ms. Chase to obtain such coverage at the present time.

IX. Conclusion

[102] Accordingly, for the foregoing reasons, a final order will issue as follows:

1. Effective January 1, 2010, on the first day of each month, the Applicant shall pay the Respondent spousal support in the amount of $5,000 per month. On January 1, 2016, the amount of spousal support payable will reduce to $2,500 per month, and the last monthly payment will be on December 1, 2016, when the Applicant’s spousal support obligation will terminate.

2. The Applicant shall receive credit against any amount payable for spousal support under this order (a) with respect to any amount paid to the Applicant for spousal support pursuant to Justice Steinberg’s temporary order dated November 24, 2010, and (b) in the amount of $34 per month for the period from January 1, 2010 to November 30, 2010.

3. Effective January 1, 2012, on the first day of each month, the Applicant shall pay the Respondent support for the child Dante (born April 5, 2008) in the amount of $1,615 per month, being the set-off amount of the Applicant’s table obligation of $1,975 based on his 2012 income for support purposes of $246,172 and the Respondent’s table obligation of $360 based on an imputed income of $40,000.

4. For the period January 1, 2010 to December 31, 2011, the Applicant shall pay the Respondent support for the child Dante (born April 5, 2008), calculated as follows:

(a) For the period January 1, 2010 to May 31, 2011, in the amount of $1,966 per month, being the Applicant’s table obligation on his income for support purposes of $246,172; and

(b) For the period June 1, 2011 to December 31, 2011, in the amount of $1,599 per month, being the set-off amount of the Applicant’s table obligation of $1,966 based on his income for support purposes of $246,172 and the Respondent’s table obligation of $367 based on an imputed income of $40,000.

5. The Applicant shall receive credit against any amount payable for child support under this order (a) with respect to any amount paid for child support pursuant to Justice Steinberg’s temporary order dated November 24, 2010, and (b) in the amount of $1,966 per month for the period from January 1, 2010 to November 30, 2010.

6. The net amount owed by the Applicant or overpaid to the Respondent pursuant to paragraphs 1 to 4 of this order for any period prior to the date hereof shall be payable to the other party on a timetable to be agreed between the parties, and failing such agreement, such net amount shall be payable to the other party within 90 days.

7. By June 1 each year, the parties shall provide each other with their respective income tax returns for the prior year together with all attachments, as well as any notice of assessment or reassessment from the Canada Revenue Agency as soon as practicable after receipt, for so long as child support is payable for Dante. The amount of child support payable shall be adjusted as of July 1 to equal the set-off amount of the parties’ table obligations. The Applicant’s table obligation shall be based on his actual income for the prior year. The Respondent’s table obligation shall be based on the greater of $40,000 and her actual income for the prior year.

8. The parties shall share special or extraordinary expenses referred to in section 7 of the Child Support Guidelines in proportion to their respective incomes as determined in accordance with paragraphs 3 and 7 of this order.

9. The parties shall provide extended medical and dental coverage for Dante to the extent that such coverage is available through their respective places of employment, as long as Dante is eligible for child support.

10. The Applicant shall provide extended medical and dental coverage for the Respondent to the extent that such coverage is available through the Applicant’s place of employment, as long as the Applicant is required to pay spousal support to the Respondent.

11. The Applicant shall irrevocably designate Dante and the Respondent as beneficiaries under any life insurance policies available through his place of employment with a minimum death benefit for each of them equal to the amount in place for such person on July 24, 2009, as long as the Applicant is required to pay child support (in the case of Dante) or spousal support (in the case of the Respondent).

12. The Respondent shall irrevocably designate Dante as the beneficiary under any life insurance policy available through her place of employment with a minimum death benefit equal to the amount available under any life insurance policy that the Respondent maintained for Dante’s benefit on July 24, 2009, as long as Dante is eligible for child support.

13. Support deduction order to issue.

[103] With respect to costs, each party shall serve and file within 21 days brief written submissions (not to exceed three pages), together with a bill of costs and a copy of any offer being relied on. Each party will have an opportunity serve and file brief reply submissions within seven days thereafter. Should counsel for both parties agree on a different timetable or prefer to make oral submissions, please so advise the Trial Coordinator.

The Honourable Mr. Justice R.A. Lococo

Released: September 6, 2013

COURT FILE NO.: F-2264/09 (Hamilton)
DATE: 2013/09/06

SUPERIOR COURT OF JUSTICE - ONTARIO
FAMILY COURT

BETWEEN:

Andre Jefferson Chase

Applicant

• and -

Valerie Pauline Chase

Respondent

REASONS FOR DECISION

Lococo J.

Released: September 6, 2013

[^1]: O. Reg. 391/97. [^2]: R.S.C. 1985(5th Supp.), c. 1. [^3]: O. Reg. 114/99. [^4]: (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). [^5]: Ibid. at para. 23. [^6]: Ibid. at para 28. [^7]: R.S.O. 1990, c. F.3. [^8]: 1992 25 (SCC), [1992] 3 S.C.R. 813. [^9]: 1999 715 (SCC), [1999] 1 S.C.R. 420. [^10]: 2008 ONCA 11, 88 O.R. (3d) 241. [^11]: See Taylor v. Taylor, 2009 ABCA 354, 464 A.R. 245 at para. 51, leave to appeal to S.C.C. refused, 33479 (April 22, 2010). [^12]: See Fisher v. Fisher at para 70. [^13]: 2011 SCC 10, [2011] 1 S.C.R. 269. [^14]: 2006 SCC 37, [2006] 2 S.C.R. 231. [^15]: Kerr v. Baranow at para. 207. [^16]: Ibid. at paras. 207 and 212. [^17]: Ibid. at para. 211. [^18]: Ibid. at para. 206. [^19]: [2000] O.J. No. 1559 (S.C.). [^20]: 2005 SCC 63, [2005] 3 S.C.R. 217. [^21]: Ibid. at para 41. [^22]: Ibid. at para 51.