COURT FILE NO.: 17980/12
DATE: 20140716
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LISE MASON
David L. Lanthier, for the Applicant
Applicant
- and -
MICHAEL MASON
Scott D. Chambers, for the Respondent
Respondent
HEARD: March 17, 18, 19, 20, 21 and
March 24, 25, 26, 27, 28, 2014
D E C I S I O N
WILCOX, J.
INTRODUCTION
[1] The Applicant sought spousal support from the Respondent. This was the sole issue remaining for trial after they settled all of the rest of the issues arising from their marital separation.
BACKGROUND
[2] The parties began cohabiting in 1989 by the Applicant’s estimation, and 1991 by the Respondent’s. They were married in 1992 and separated in November, 2011. She was aged 46 at separation, and he was 51. There are two children, daughters, both now young adults in post-secondary education.
[3] The Applicant completed grade 12 in 1981 and two years of business administration at college by 1983. She had experience in clerking, bookkeeping, and retail from age 13, when she started working in her sister’s confectionary store. She worked in customer service and the cash office at Walmart from age 16 through college. She then worked in a pharmacy office, refusing a supervisor position there when it became open. From there, she moved to a restaurant supplier where she took telephone orders and did bookkeeping. She was earning about $20,000 per year at the start of the relationship.
[4] At that time, the Respondent was a miner earning about $80,000 per year. He had a hobby of purchasing, fixing up and reselling used snowmobiles. Stemming from that, the parties bought a business in 1989 for $5,000. It was a repair shop for small engines and boats. Both worked at it, with one employee, while continuing to work at their previous jobs, the Respondent until 1994 and the Applicant until 1995. In those years, both quit their other jobs to focus on the growing business. The business, located in Timmins, Ontario, grew and expanded into new lines over the years. It sold recreational vehicles, equipment, apparel and accessories, and serviced and repaired recreational vehicles. The parties took equal salaries and bonuses and enjoyed the other perks of the business until separation and afterward until January 21, 2013 when the Applicant withdrew from the day to day management of the business in favour of the Respondent. However, she continued to draw $120,000 per year in salary and receive other perks pending resolution of the issues arising from the separation. She has not sought work elsewhere since withdrawing from the business.
[5] Prior to separation, the family enjoyed a relatively high standard of living. They were able to build an expensive house without incurring a mortgage. They had a recreational property and high end vehicles. Substantial amounts of money were spent on designer clothes. There were meals out. Much of this was paid for by cash from unreported transactions, or by barter, in the business. Personal expenses such as food, fuel, insurance and home maintenance were also paid for by the business. There was a personal aspect to business travel. The business also provided the use of recreational vehicles, and the associated clothing and accessories. A trust and RESPs were set up out of which the children’s expenses, such as for post-secondary education, could be paid.
[6] The parties resolved the issues arising from their separation, but for spousal support, in Minutes of Settlement dated March 17, 2014. These minutes provided, among other things:
-for the support of the children -that the matrimonial home would be sold and the net proceeds divided equally between the parties -that the Applicant would release the recreational property and camp located on land leased from the Ministry of Natural Resources at Night Hawk Lake and its contents, and that the land use permit would be transferred into the Respondent’s name -that the Applicant’s interest in the business would be transferred to the Respondent -that the Applicant would receive from the business title to and ownership of the motor vehicle and snowmobile in her possession at no cost to her -that the Applicant would receive the use of 283,490 Aeroplan points/miles -that each would retain ownership and assume any associated tax liability of all other unspecified assets, money and property then in their respective possession -that the Respondent would pay to the Applicant $1,636,130 in a Net Family Property Equalization. $1,000,000 was to be paid by May 9, 2014 and $636,130 with interest were to be paid in blended monthly installments over five years commencing one month after that payment -that the payments of salary and benefits to the Applicant would continue until the final adjudication of spousal support -that neither party may apply for divorce before July 30, 2014.
[7] For the purpose of the Net Family Property Equalization, the business was valued as of October 31, 2011. It consisted of two companies, the operating company, Mikey’s General Sales and Repair Ltd. (Mikey’s), and M and L Mason Holdings Inc. (Holdings) which holds the real estate from which Mikey’s operates. Two valuations were done, one by Collins Barrow and one by KPMG. Both used an earnings-based approach to value Mikey’s and an asset-based approach to value Holdings.
POSITION OF THE APPLICANT
[8] The Applicant submits that the parties enjoyed high incomes and a high standard of living prior to the separation. The property issues have been resolved with the Respondent retaining the primary income earning asset, the business. The Applicant is now unemployed but hopes to find employment. With her qualifications, she could expect to earn $35,000 to $40,000 per year in a bookkeeping capacity. Therefore, she seeks spousal support on both compensatory and non-compensatory bases.
[9] Her claim for compensatory support derives from her dedication during the relationship to building the successful family business. After separation, she ceased to be involved in it, was bought out by the Respondent and lost the income and benefits from it. Consequently, she argues, she is economically disadvantaged as a result of the separation and, therefore, entitled to compensatory support.
[10] The same circumstances underpin her claim for non-compensatory support. She no longer has the income that the business provided to support the standard of living that she enjoyed pre-separation. She is no longer self-sufficient in that regard and, therefore, alleges a need for non-compensatory support.
[11] Having addressed entitlement to spousal support, the Applicant submits that the court must next determine the range of spousal support under the spousal support advisory guidelines. To do so, the respective incomes of the parties must be established.
[12] The Applicant submits that the business had a historical record of financial success which was interrupted by the separation. The distraction of the family law proceedings, the loss of her bookkeeping knowledge and difficulties with changes to the bookkeeping software resulted in a net loss in the year ending April 30, 2013, the first since the year ending in April, 2000. However, with the resolution of these matters, the pattern of success will resume, she predicts.
[13] The Applicant alleges that the Respondent’s income for spousal support purposes consists of:
-his income from the business of $200,000 per year, -the business’ profit after his salary and after tax of $355,000 per year, -undeclared cash income of $50,000 to $100,000 per year, subject to gross up and -imputed income for the value of the perks of the business, including personal expenses paid by it and the use of recreational equipment, amounting to $86,706 per year.
In total, this adds to as much as $741,706 per year.
[14] In contrast, she submitted that her income would be:
-$40,000 to $50,000 per year from investing $1,000,000 of her Net Family Property Equalization, without encroaching on the capital, and -$30,000 to $40,000 per year salary as an employed bookkeeper.
She felt her employment options were limited due to her age, outdated skills and a limited market. However, she would choose employment over investing in another business due to her age, the time it takes to develop a profitable business, and the risk involved.
[15] Based on these income numbers, the Applicant’s counsel provided a number of scenarios in DivorceMate calculations applying the Spousal Support Advisory Guidelines (S.S.A.G.) although the incomes attributed to the Respondent exceed the recommended range for use of the S.S.A.G.
RESPONDENT’S POSITION
[16] The Respondent sought to have the Applicant’s spousal support claim dismissed in its entirety. He argued that she did not sacrifice her career to allow him to advance his and is not disadvantaged by the breakdown of the marriage. In fact, she enhanced her career as a bookkeeper, office manager and business owner beyond what it would have been without the skills and experience that she acquired while working in the business. She and he drew the same amounts of money from the business in salary and bonuses. Furthermore, following the Net Family Property Equalization, she will be wealthy with a net worth of about $2,300,000 including cash assets exceeding $2,000,000. Conversely, the Respondent will have a company that will be significantly indebted to pay the equalization and which has had declining income and profit since 2008 and lacks the ability to pay.
[17] He argued that the Applicant has no need for spousal support. She has not been working in the business since February, 2013 but has taken no steps to obtain employment or upgrade her skills.
[18] The Respondent denied that cash sales took place in the past to the extent that the Applicant claims and argues that her evidence was lacking in that regard. Furthermore, cash transactions have ceased because of the risk that she is reporting to the Canada Revenue Agency (CRA), and in order to show as much profit as possible for the sake of his relations with suppliers.
[19] Finally, the Respondent argued that the perks, such as paying personal expenses through the business, the use of company vehicles and the use of demonstrator equipment that the Applicant wants income imputed to him for are benefits of the business, not of the marriage. By selling her share of the business, she sold her interest in them. The Applicant wants the perks of, but not the risks associated with, owning and running a business, having chosen to invest in an annuity rather than a business of her own. He denies that she is entitled to any compensation for them.
LAW
[20] The Applicant did not claim for divorce in her Application. She claimed for spousal support under the Family Law Act. The Respondent sought a divorce in his Claim by Respondent within his Answer. Both parties referred to the provisions of both the Divorce Act and the Family Law Act in their respective facta. The Respondent’s factum includes submissions that the same parameters should apply to this spousal support claim under either Act. The case of S.(L.) v. P.(E.) (1999), 1999 BCCA 393, 175 D.L.R. (4th) 423, was cited in support. In it, the British Columbia Court of Appeal stated, albeit in the context of child support, at paragraph 47:
To ensure that a child’s right to support is not a function of the marital status of his or her parents, the right to retroactive maintenance should not be a function of whether the proceedings are brought under the Divorce Act or the Family Relations Act. For that reason, there is a strong policy interest in ensuring that the same principles and factors structure a judge’s discretion in awarding or refusing to award retroactive maintenance, regardless of which Act is applicable.
Leave to appeal to the Supreme Court of Canada was refused. Having heard no argument to the contrary, I agree with this approach. However, I will focus my reasons on the Divorce Act’s provisions, as the major cases cited do so, and for the sake of efficiency.
[21] The Divorce Act provides for spousal support orders as follows:
15.2 SPOUSAL SUPPORT ORDER - (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(2) INTERIM ORDER - Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
(3) TERMS AND CONDITIONS - The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
(4) FACTORS - In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(5) SPOUSAL MISCONDUCT - In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER - An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[22] The Supreme Court of Canada addressed spousal support under the Divorce Act in a series of cases beginning with Moge v. Moge 1992 25 (SCC), [1992] S.C.J. No. 107. In it, L’Heureux-Dubé J., writing for the majority, made a number of points, including:
-The purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown”. (paragraph 43). -Marriage is, among other things, an economic unit which generates financial benefit. Marriage partners are entitled to share those benefits. (paragraph 44). -What is required is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown. (paragraph 47) -Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets or by a combination of property and support. In the absence of accumulated assets, one spouse may be required to pay spousal support to the other to achieve an equitable distribution of resources. (paragraph 45) -Equitable sharing does not guarantee either party the continued standard of living enjoyed during the marriage, but that standard of living remains relevant to support entitlement. “As marriage should be regarded as a joint endeavor, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”. (paragraph 84) -All four objectives of the Divorce Act must be taken into account when spousal support is claimed. No single objective is paramount. (paragraph 52) -They can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. (paragraph 77) -The objectives in Divorce Act s. 15.2(6)(a - c) embody principles of compensatory support. (paragraph 68) Paragraph (a) is exclusively compensatory, while paragraph (c) is not. (paragraph 75)
[23] McLachlin J., as she then was, agreed with the majority’s disposition of the case, but commented briefly that, although it is interesting and useful to consider different theories of spousal support, the Divorce Act sets out four factors for courts to consider in dealing with spousal support, and it is then a matter of statutory interpretation.
[24] However, in Bracklow v. Bracklow [1995] S.C.J. No. 14, McLachlin J. identified three conceptual basises for entitlement to spousal support: compensatory, contractual and non-compensatory, and two theories of spousal support, the “independent” model and the “basic social obligation” model. In the independent model, a former spouse, having been compensated for any economic costs of the marriage, moves on in a “clean break”. This is the basis for compensatory spousal support, stressing independence.
[25] In contrast, in the “basic social obligation” model, marriage creates persistent interdependencies and a more or less permanent obligation. This is the basis for non-compensatory spousal support, stressing interdependence. The Divorce Act and, indeed, provincial statutes, provide for both compensatory and non-compensatory non-contractual basises for spousal support.
[26] Looking at the Divorce Act, McLachlin J. said that the starting point is the Act’s objectives in s. 15.2(6), against which the s. 15.2(4) factors must be considered. Once entitlement is established, quantum of spousal support can be dealt with. The same factors that go to entitlement have an impact on quantum.
[27] In Hickey v. Hickey 1999 691 (SCC), [1999] 2 S.C.R. 518, L’Heureux-Dubé J. referring back to the Moge and Bracklow cases, confirmed that the objectives of the Divorce Act reflect the principle that the economic consequences of the marriage and of the separation and divorce should be equitably shared between the former spouses.
[28] The spousal support provisions of the Divorce Act were considered by the Ontario Court of Appeal in 2008 in Fisher v. Fisher 2008 ONCA 11, 88 O.R. 3rd 241. To at least some extent, the court analyzed the objectives in s. 15.2(6)(a)(c) and (d) by comparing the Applicant’s standard of living before and after separation, and by comparing the Applicant’s and Respondent’s standard of living after separation.
ENTITLEMENT
[29] I do not propose to spend a lot of time on entitlement. A review of the case law leads to the conclusion that the factors and objectives in the Divorce Act may be measured by the yardstick of the parties’ standard of living before and their relative standards of living after separation. Here, the parties enjoyed a high standard of living as a result of their joint efforts in building the family business over some 20 plus years. Post-separation, the Applicant is no longer in a position to work in and benefit directly from the business. This is an economic disadvantage to her arising from the breakdown of the marriage. Although she has benefitted enormously during the relationship in terms of the capital that she has accumulated, she is not able to convert that into an income supporting a standard of living comparable to that produced by the business. Her concern about the time it would take to build another business and the risks involved are realistic given her skill set and the role that she played in the family business. It is fair to say that the Respondent was the entrepreneur while the Applicant contributed largely through financial management. Therefore, her decision to invest safely is understandable. However, it produces a lower income and a corresponding economic hardship. Self-sufficiency during her working life, again measured by the standard of living, will be an elusive goal. Therefore, I find that entitlement to spousal support has been established.
[30] Given that the business that was the source of the family’s income was valued as it was, that that value was included in the family property and that a Net Family Property Equalization has been arrived at, one might think that no claim for spousal support could be supported. This would be especially true if the parties had sold the business to a third party and divided the proceeds in the equalization. In the present case, however, the Respondent kept the income-producing asset. Spousal support in this situation has been dealt with in previous cases.
[31] In Bedi v. Bedi [2004] O.J. No. 2207, a decision of the Ontario Superior Court of Justice, the spouses owned a number of motels. After separation, they entered into a separation agreement in which, among other things, the wife sold her interest in the family business to the husband as part of the Net Family Property Equalization. The wife then claimed for spousal support, alleging that she could not maintain with her investment income the standard of living that she had enjoyed pre-separation. The husband objected to paying spousal support on the basis that the assets were divided equally, he must run the motels to earn his income, and the wife could invest her equalization payment to earn what he did. The court, having found the wife to be entitled to spousal support, turned to the issues of quantum and of double dipping contrary to Boston v. Boston 2001 SCC 43, [2001] 2 S.C.R. 413 in view of the equalization. It distinguished the situations of the equalization of a pension entitlement which the Boston case dealt with and that of a business or investment, quoting from Boston at paragraph 57 that:
… When a pension produces income, the asset is being liquidated. The same capital that was equalized is being converted into an income stream. By contrast, when a business or investment is producing income, that income can be spent without affecting the asset itself.
[32] Adapted to the present case, the court held:
- the Applicant must invest her share of the capital assets from the sale of her interest in the business to provide for her support; 2) because we are not waiting for a payor to retire, the obligation to invest is immediate; 3) neither the Respondent’s business nor the Applicant’s investments will be necessarily depleted solely by producing income; 4) the court is then to compare the income available to the Respondent from the business and the income from the investments on the proceeds from the sale of the Applicant’s share of the business, and decide whether further adjustments are necessary; 5) the adjustments take the form of spousal support; 6) in considering spousal support, the court takes into account compensating factors, the needs and means of the parties given their standard of living before separation.
[33] Similarly, in Poirier v. Poirier 2005 38106 (ON SC), [2005] O.J. No. 4471, a decision of the Ontario Superior Court of Justice, the Respondent’s company (the dealership) was valued for the purpose of property equalization. The Respondent then argued that his income should be reduced for the purpose of calculating the spousal support to be paid to the Applicant in order to prevent double-dipping, as that principle had been elaborated on in Boston v. Boston. The court stated at paragraph 40 that:
Boston deals with a very special asset, namely a pension plan. A pension has no value aside from the income stream it represents. Here the dealership represents a real asset which continues not only to provide a lucrative income stream, it also continues to have a real value which can be sold, transferred or otherwise disposed. I fail to see any unfairness. Mrs. Poirier has her half of the value of the shares converted into a liquid asset earning interest and Mr. Poirier has his half of the value of the shares invested in a business earning business income. It is only the parties’ respective incomes, not the divided asset, which are considered for the purpose of fixing spousal support.
[34] Courts in the Yukon and in British Columbia have also reached the conclusion that spousal support can be payable by the transferee of an income-generating asset to the transferor where the transfer is part of a division of family property. See Holmes v. Matkovitch, 2008 YKCA 10, 2008 Y.K.C.A. 10, and Jess v. Jess [2008] B.C.J. No. 1896.
[35] Therefore, the Respondent’s buyout of the Applicant’s interest in the family business does not disentitle the Applicant to spousal support.
[36] I will also address briefly the allegation by the Applicant that she was driven from the business by the Respondent. A considerable amount of time was spent in trial with respect to the circumstances post-separation leading up to her departure from the business. Both sides criticized the conduct engaged in by the other which would have hurt the business. The Applicant’s position was that she could have continued working in the business despite the separation, but that the Respondent forced her out. I can understand how she would want to continue to be involved in the business that she had dedicated so much time and effort to and had helped to make successful. To her, losing the marriage did not mean also having to lose her job. However, the spousal relationship had broken down. While not unheard of, it would be expecting a lot of people whose most personal and important relationship had foundered, with all the emotional sequalae that that entails, to put aside their differences while dealing with a business. It seems that it was nearly inevitable that one would have to leave. Given that the business grew from the Respondent’s hobby, that he was the face and name of it, and that it largely catered to men, as the Applicant candidly admitted, having the Respondent buy the Applicant out was at least a sensible option. The business and the marriage were entwined with each other. When the marriage relationship broke down, the business relationship followed. The family law does not assign blame for the breakdown of relationships. It accepts that they take place and provides a scheme for people to move on in an orderly fashion. Ultimately, that it what is taking place here. That the parties’ conduct towards each other at times left something to be desired is to be expected, although not approved of. It does not lead to blame being assigned, affecting the outcome of this case.
QUANTUM
[37] To use the S.S.A.G. to produce ranges of spousal support, incomes for the Applicant and the Respondent must first be determined.
RESPONDENT’S INCOME
[38] Starting with the Respondent, the Applicant proposes four components of income:
-business income -business profit -undeclared cash -imputed value of perks.
Dealing first with business income and profit, figures are available for as far back as the mid-1990s. The figures to use depend on the period of time one chooses to look at. Gross revenue and net income generally increased to peaks in the year ending April, 2008 and have tended gradually downward since then. Over that time, the parties drew equal incomes that fluctuated from year to year. The Applicant used averages for the eight years prior to her leaving the business, after which gross revenues dipped and there was a net loss for the first time since 2000. Taking a ten year average up to that point produces lower average numbers. There was anecdotal evidence about the effects of increased competition, the local economy, the separation, the Applicant leaving the business, and the Respondent being distracted by this litigation. However, predicting the future of the business is an exercise in guesswork.
[39] There was also testimony that, in order to fund the equalization, the business would be in a weaker position. Reducing the Applicant’s spousal support because of that would be akin to having her pay for the assets that she received in the property division, which would not be appropriate.
[40] I am mindful that keeping the business financially healthy and viable is in the Applicant’s and the children’s interests, not just the Respondent’s.
[41] Allowance must also be made for the cost of replacing the Applicant’s function in the business. A bookkeeper was said to earn $30,000 to $40,000 per year. It is fair to say that it would take more than one to replace a dedicated part owner like the Applicant in that position.
[42] Based on the above, although the numbers are soft, I would put the annual total of the Respondent’s income and the business’ profits at $400,000 per year going forward for spousal support purposes.
[43] Turning to the matter of undisclosed income, it is clear from the evidence that the parties’ pre-separation standard of living was supported to some considerable extent by undisclosed income generated either through undisclosed cash transactions or barter deals. It was this that helped to fund, among other things, the construction of the matrimonial home at a cost of about $800,000 without taking out a mortgage. The Applicant wants the value of the allegedly ongoing undisclosed transactions included in the Respondent’s income for spousal support purposes.
[44] This raises two questions. The first is, what is the value of any such ongoing transactions. The second is whether it is appropriate to make an order based on any such value.
[45] Because of their nature, the value of such transactions is difficult to quantify. The range in this case is from the Applicant’s estimate of about $100,000 per year down to the Respondent’s indication that the practice has ceased but for negligible amounts. Indeed, there are good reasons as to why the Respondent would no longer engage in such transactions. In any event, the evidence is such that choosing a monetary value would be another exercise in guesswork.
[46] It is not necessary that I do so, given my answer to the second question. People who pay their income taxes and live within their after-tax means have every right to be upset at those who fail to declare their incomes according to the rules, pay less than their fair share of tax, and enjoy a relatively higher standard of living as a result. Ordering spousal support in this case based on undisclosed income might be seen as a condonation of non-disclosure. Although the Applicant has benefitted from it in the past, she should have no expectation of continuing to do so. If the Respondent continues to underreport his income, that is a matter for the taxation authorities to deal with. Furthermore, as Gordon J. stated when dealing with this issue on an interim basis, basing a spousal support order on unreported cash income “basically forces the Respondent to continue with this unethical business practice”.
[47] In view of the above, I decline to impute income to the Respondent based on unreported income for the purpose of calculating spousal support.
[48] Lastly, I will deal with the imputation of the value of the perks of the business to the Respondent as income for spousal support purposes.
[49] It seems to me that there are two components to this. One is the payment of personal expenses through the business. The other is the value of the free personal use of recreational vehicles (i.e. demos) of the business.
[50] To my way of thinking, the use of the business to pay what are properly personal expenses is similar to the use of cash transactions. Writing off expenses properly incurred for business purposes is legitimate. Paying personal expenses through the business without accounting for them for tax purposes, like failing to report cash transactions, is not. As with the unreported cash transactions, I am not imputing income to the Respondent for this for spousal support purposes.
[51] That leaves the personal use of the demos to deal with. Once again, accurately determining the value of such use is difficult. The Applicant’s evidence suggested approaching it by way of the costs of ownership. At least arguably, however, given the evidence of the pattern of usage, approaching it by way of the costs of renting such equipment might be more appropriate. In any event, I decline to assign a value to this use for spousal support purposes. Such use is, properly viewed, to be for business purposes, not personal ones. As the business’s owner, the Respondent would be expected to use the products he sells to promote the business. Personal use that goes beyond that might well also be of interest to the taxation authorities.
[52] Furthermore, it was clear from her evidence that risk has a cost to the Applicant, and security is of value. She sold her interest in the business to the Respondent and declined to invest in another because of the risk. Instead, as previously noted, she preferred investing her capital in safe investments. The Respondent’s capital is tied up in the business. That might prosper, or it might not. I see it as fair and equitable, to echo the terminology of Moge, that, to the extent that there are personal benefits to the Respondent from owning and operating the business, they are offset by the effort and risk involved in doing so.
APPLICANT’S INCOME
[53] The Applicant submitted that her income amounted to $40,000 to $50,000 from investments and $35,000 to $40,000 from employment. I accept these figures, based on the evidence heard, and would place her annual income in the range of $75,000 to $90,000 with a midpoint of $82,500 for spousal support calculation purposes.
SPOUSAL SUPPORT
[54] Using these income figures, the S.S.A.G., which calculations take into account the child support that the parties settled on, produce a range of support from a low of $8,215 per month to a high of $10,233 per month. I see no reason to depart from the midrange which is $9,584 per month. Therefore, spousal support shall be in the amount of $9,584 per month commencing August 1, 2014. It is only by coincidence that this is nearly the same amount as the Applicant has been receiving on an interim basis.
COSTS
[55] Success in this matter has been mixed, given that the Applicant sought a much higher imputed income for the Respondent and therefore much higher spousal support, and the Respondent resisted any spousal support. That being so, each party shall bear its own costs.
Justice J.A.S. Wilcox
Released: July 16, 2014