BROCKVILLE COURT FILE NO.: 02-1149
DATE: 2014/09/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Edward Charles Hickey
James N. Eastwood, for the Applicant
Applicant
- and -
Yolanda Gaye Princ
Jodi R. Fleishman, for the Respondents
Respondent
HEARD: January 22, 2014
Abrams J.
REASONS FOR DECISION
Overview
[1] This is a motion to change the final orders of Cunningham J., dated February 25, 2004, McLean J., dated September 14, 2010, and Pedlar J., dated December 7, 2010 (hereinafter “the previous orders”).
[2] Cunningham J. ordered spousal support payable by the Applicant, to the Respondent, in the amount of $2000 per month, subject to either party’s right to apply to vary the quantum in the event of a material change in circumstances.[^1]
[3] The order further provided for a review of the Respondent’s entitlement to spousal support on or about March 1, 2008. By consent order of McLean J., dated September 14, 2010, spousal support was varied to $2276.36 per month in accordance with the indexation provisions contained in paragraph three of Cunningham J.’s order.
[4] Finally, by order of Pedlar J., dated December 10, 2010, the quantum of spousal support was varied annually on May 1st in accordance with certain revised wording pertaining to indexation.
[5] Accordingly, the Applicant is currently paying spousal support in the amount of $2468.37 per month as a result of cost of living increases since the 2004 divorce order.
Background Facts
[6] The parties were married on October 6, 1984 and separated 17 years later on December 7, 2001. There are no surviving children from their marriage.[^2]
[7] The Applicant was employed with the Ontario Provincial Police (OPP) throughout the marriage. Support within the parties 2004 divorce order was set at $2000 per month, on consent, based on the Applicant’s income of $78,286 at the material time.
[8] The Respondent maintained self-employment as a model / actress starting in 1986 and at the material time of the separation and final order.
[9] Within the original proceedings the Applicant’s pension was equalized at its highest value based on the assumption that the Applicant would likely retire on the earliest date that he could retire with a full unreduced pension, that date being October 31, 2013.[^3]
[10] The Applicant retained sole ownership and entitlement to his pension, while the Respondent retained sole ownership of the former matrimonial home, in addition to the remaining property issues resolved in paragraphs nine through twelve of Cunningham J.’s order.
[11] The Applicant retired from the OPP on October 31, 2013, following a 30 year career.
[12] The Applicant is now requesting a reduction in the quantum of spousal support based on a material change to his income following his retirement.
[13] The parties agreed to proceed on this motion for a final order as opposed to a trial.
Facts on Motion
[14] For purposes of this motion I find, inter alia, the following facts:
a. The parties were married for 17 years.
b. Support within the parties' final order was set at $2000 per month based on the Applicant’s income of $78,286.
c. The Applicant is currently paying spousal support in the amount of $2468.30 per month as a result of cost of living increases since the final order.
d. The Applicant’s pension was equalized at its highest value based on the Applicant retiring on the earliest possible date that he could retire, with a full unreduced pension, that date being October 31, 2013.
e. The Applicant retired with a full unreduced pension effective October 31, 2013, following a 30 year career with the OPP.
f. The Applicant’s current annual pension income is $76,477. He has no other employment income.
g. Based on the actuarial evidence proffered by the Applicant on this motion, $26,517 of his pension income was previously equalized with the Respondent.[^4]
h. In the Respondent’s financial statement, dated January 7, 2014, she discloses total monthly income from all sources of $2,928.37, which is based substantially on her spousal support of $2,468.37 per month. The additional income is attributed to a rental property that she owns in Gananoque, Ontario. Thus, the Respondent discloses total annual income from all sources of 35,140.44 in her financial statement.[^5]
i. The Respondent discloses annual expenses of $78,852 in her financial statement.
j. Accordingly, the Respondent has an apparent shortfall of $43,711.56 annually, or $3,642.63 monthly.
k. The Respondent discloses on page four of her financial statement a “PC Financial” bank account into which she notes that her mother deposits unspecified sums of money to assist with the Respondent’s living expenses. The Respondent shows the amount of $5,250.97 in the account as at the date of the financial statement.
l. Apart from certain notations contained in the Respondent’s financial statement, there was no evidence put before the court, on this motion, to substantiate the unspecified sums of money allegedly deposited by her mother into the bank account to assist with her living expenses.
m. Similarly, the bald assertions that the Respondent has run up significant “non-arm’s length” debt to her mother in recent years to service expenses (page five of her financial statement), without more, are simply that.
n. It was open to the Respondent to proffer evidence from her mother, supported by bank records, to substantiate the contention that her mother is assisting her financially to cover her monthly and annual shortfall. For whatever reason(s), she chose not to do so.
o. It was open to the Respondent to call evidence, apart from her reply affidavit, that her mother is the actual owner of the properties and time shares located in the U.S., contrary to the documentary evidence filed by the Applicant. For whatever reason(s), she chose not to do so.
p. The best evidence supports the Applicant’s contention that the Respondent is, by whatever means, supporting a lifestyle that she apparently cannot afford. Further, the best evidence supports the Applicant’s contention that the Respondent is an owner of properties in the U.S. that, by whatever means, she has purchased in the years following the final order. Thus, the reasonable inference to be drawn is that the Respondent has not, for purposes of this motion, disclosed all of her sources of income.
q. In all of the circumstances, the court is also mindful of the fact that, apart from the annual cost of living increases, the Respondent has not brought a motion to increase the level of support based on her apparent need.
r. The court accepts the actuarial report of Mr. Michael Cavanaugh marked as Exhibit “T” to the Applicant’s affidavit, sworn January 13, 2014, in which the Respondent is shown as having a total net value of $192,400 as at February 25, 2004 and $239,499 as at February 8, 2013. Based on the value of the Respondent’s assets on February 8, 2013, the court accepts Mr. Cavanaugh’s calculation that the Respondent could obtain a non-indexed annuity of $994.04 per month, starting on November 8, 2013 and with 120 payments guaranteed in accordance with scenario number two, as defined by Mr. Cavanaugh.
s. The court accepts that the Respondent has made application through Service Canada for C.P.P. disability benefits that could result in a monthly payment of $312.90 until age 67.
Positions of the Parties
Applicant’s Position
[15] The Applicant contends that his retirement constitutes a material change in circumstance.
[16] The Applicant contends that his current income, for support purposes, should be limited to that portion of his pension income that was not previously shared with the Respondent through the equalization of net family property, the non-equalized portion being $49,690. Moreover, if the Applicant’s total annual pension income of $76,477 is used for support purposes, the principle against “double dipping” would be offended.
[17] The Applicant asserts that some amount of income should be imputed to the Respondent in the circumstances of the apparent financial shortfall in supporting her lifestyle that has not been fully or adequately explained.
[18] The Applicant further contends that it is reasonable to expect the Respondent to liquidate her assets in order to establish an income for herself.
[19] The Applicant asks that the appropriate quantum of support be determined in accordance with the Spousal Support Guidelines grid.
[20] The Applicant asks that a future fixed termination date be set in respect to ongoing spousal support payments in accordance with the duration calculated through the Spousal Support Guidelines.
[21] Finally, the Applicant contends that the quantum of support should be adjusted retroactively to the first day of the month following his date of retirement.
Respondent’s Position
[22] The Respondent contends that the Applicant has not met the test to establish a material change in circumstances as the material change relied on (his retirement) was one that was reasonably foreseeable. Accordingly, the Respondent asserts that the Applicant’s motion should be dismissed.
[23] In the event that the Applicant is successful in establishing a material change, the Respondent contends that spousal support should not be reduced given: the party’s 17 year marriage, the Respondent’s economic hardship as a result of the marriage and separation, the Respondent’s disabilities, her palpable need for support and the Applicant’s ability to pay support.
[24] Finally, the Respondent asserts that it would be inappropriate to impose a time-limited award where a spouse suffers from severe disabilities.
The Law
[25] Section 17 of the Divorce Act grants the court jurisdiction to vary the terms of a spousal support order.[^6]
[26] Before making a variation order the court must first satisfy itself that “a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order”.[^7]
[27] Similar considerations are set out in the Family Law Act, R.S.O. 1990, c. F.3.[^8]
[28] The four spousal support “objectives” continue to apply on variation.[^9]
[29] Once there is a change in either the condition, means, needs or other circumstances of either spouse the right to vary the previous order is “triggered”.[^10]
[30] In his paper “To Vary, to Review, Perchance to Change: Changing Spousal Support” (June, 2011) Professor Rollie Thompson, beginning at page three, under the subheading “Foreseen vs Foreseeable”, has the following to say:
The trouble starts from confusion of “foreseen” and “foreseeable”. Not only are these two different words, but also in support law these words reflect different concepts, with “foreseeability” drawn from Miglin.[^11] … When we speak of a change being “unforeseen”, we mean that the change was not “foreseen” in the previous order, i.e. the change was not considered or taken into account in making the previous order. This concept looks backwards to the previous order.
[31] Mr. Thompson expands on the competing concepts on page four, where he says:
A good example of the effects of this confusion is retirement. It is “foreseeable” that most of us will retire. If “foreseeability” is the test for variation, then the payor’s retirement would not be a material change. But that is not the test: the test is whether the retirement was “foreseen”, i.e. taken into account, in the previous order. [emphasis added]
[32] A payor should not be estopped from seeking a variation in his spousal support obligations on the ground his retirement was “foreseeable” at the time of the original order.[^12]
[33] Courts routinely permit variations of spousal support orders if a payor retires. Courts should not look past a payor’s decision to retire unless its purpose is to frustrate a support order.[^13]
[34] Notably, the Respondent in the case before the court retained the benefit of the highest value calculated for the Applicant’s pension, but now asserts that the Applicant voluntarily retired and is thus unable to seek a variation in support because of the actual fact of his retirement at age 51.9 years,[^14] following a 30 year career in policing.
Double Dipping
[35] When a pension changes from an asset to income the “double recovery” difficulty can arise. For example, while the husband is still employed, he may be obliged to make spousal support payments to the wife. When he retires, however, and his pension comes into pay, the wife is said to be making a double recovery if she continues to receive spousal support from the husband’s pension income, as she received assets equal to the capital value of the pension at the same time of settlement. If support payments from the pension are maintained, she is collecting twice from the same source.[^15]
[36] It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income. This is particularly true where the payee spouse receives capital assets which she then retains to grow her estate.[^16]
[37] To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown. That would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property.[^17]
[38] Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and despite this, an economic hardship from the marriage or its breakdown persists.[^18]
[39] If the payee spouse receives assets in exchange for a share of the capitalized value of the other spouse’s pension and she does not invest those assets in an attempt to produce an income, the court should imput an income to the payee spouse based on what those assets could reasonable produce if invested. This should not be based on artificial assumptions but on professional actuarial advise.[^19]
Analysis and Additional Findings
Material Change
[40] The Respondent contends that the Applicant is not entitled to a variation of support based on a material change in circumstances because, as the Applicant has admitted throughout his materials, the facts surrounding his retirement at the age of 51 were known to both parties at the time of Cunningham J.’s order. As Thompson J. found in almost identical circumstances in Gemmell, I reject this argument, for the following reasons.
[41] Not to be critical, but the Respondent is confusing the differing concepts of “foreseeable” and “foreseen”. As Professor Thompson said: It is “foreseeable” that most of us will retire. If “foreseeability” is the test for variation, then the payor’s [the Applicant’s] retirement would not be a material change. But, that is not the test: the test is whether the retirement was “foreseen”, i.e. taken previously into account, in the previous order.
[42] If the Respondent’s position reflected the prevailing view in the law, no payor could ever seek a variation of his or her spousal support obligation based on retirement, as most of us will retire someday, unless retirement was specifically enumerated as a triggering event in the final order. Whether or not there has been a material change is a factual finding to be determined by the court, based on the evidence. That is why, in my view, courts have routinely permitted variations of spousal support orders if a payor retires, even when the payor’s retirement was “foreseeable” at the time of the previous order.
[43] There is no evidence before the court that the Applicant’s decision to retire was for the purpose of frustrating the support order. Rather, the Applicant retired exactly when he indicated that he likely would in 2004, when the parties resolved matters on consent before Cunningham J. As a result, the Respondent retained the benefit of the highest value calculated for the Applicant’s pension. With reference to Gemmell, it is equally ironic that the Respondent now complains that the Applicant retired on the very date that earlier worked in her favour when finalizing the issues related to the equalization of net family property.
Double Dipping
[44] Based on the actuarial evidence proffered by the Applicant, which stands alone, unchallenged, the court accepts that $26,517 of the Applicant’s pension income was previously equalized with the Respondent.
[45] When the sum of $26.517 is deducted from the Applicant’s current pension income of $76,477, the Applicant is left with $49,690 of pension income that was earned following the date of separation and not included in the equalization of net family property.
[46] To recall, the parties elected to equalize the capital value of the Applicant’s full, unreduced pension, at its highest value, within the calculation and equalization of net family property attached as Schedule “A” to Cunningham J.’s order.
[47] Dealing with the parties two most significant assets, the Respondent elected to keep the former matrimonial home valued at $150,000 (mortgage free) and the Applicant kept his pension valued at $174,400. And although there was a small equalizing payment of $5,591 owing from the Applicant to the Respondent, the parties elected in Schedule “B” to the final order to treat the equalization of all property as final.
[48] To reiterate, the court accepts Mr. Cavanaugh’s actuarial report marked as Exhibit “T” to the Applicant’s affidavit, sworn January 13, 2014, in which the Respondent is shown as having a total net value of $192,400 as at February 25, 20104 and $239,499 as at February 8, 2013.
[49] Thus, the court accepts Mr. Cavanaugh’s calculation that the Respondent could have obtained a non-indexed annuity of $994.04 per month, starting on November 8, 2013 and with 120 payments guaranteed.
[50] The court rejects the Respondent’s assertion that she has accrued significant, “non-arm’s length”, debt owing to her mother as detailed in her financial statement, for the reasons articulated above.
[51] The court finds that it would be unfair to allow the Respondent to reap the benefit of the pension both as an asset and then again as a source of income, meaning the $26,517 of pension income previously equalized with the Respondent.
[52] The court finds that the Respondent received capital assets equal to the value of the pension as a result of the equalization of net family property, most notably the former matrimonial home[^20], which she retained to grow her estate from $192,400 at the time of Cunningham J.’s order to $239,499 as at February 8, 2013.
[53] The court finds that, in all of the circumstance of the case, there is no reason to permit “double recovery”. Firstly, there is no evidence of the Respondent having made reasonable effort to use the equalized assets in an income producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Secondly, the Respondent has not reasonably or adequately explained, in evidence before the court, how she is able to sustain a lifestyle based on expenses of $78,852 per year, with a shortfall of $43,711.56, year over year. Thirdly, the best evidence before the court demonstrates that the Respondent has, in the years following Cunningham J.’s order, acquired property in her name, in the U.S., which she did not disclose to this court in her financial statement, or at all, until the Applicant filed documentary evidence showing the property to be registered in her name. On this issue the Respondent’s credibility was successfully challenged by the Applicant.
[54] The court has considered the four spousal support “objectives” set out in s. 17(7) of the Divorce Act.
[55] The court finds that there has been a change in the condition, means, needs or other circumstances of the Applicant so as to trigger the right to vary the previous orders.
[56] The court finds that the change is “not trivial or insignificant”.[^21] Moreover, the court finds that the change has “some measure of continuity”, to not be temporary.[^22]
[57] Put simply, post retirement, the Applicant’s non-equalized pension income has been reduced to $49,960.
[58] The court finds that, when looking backwards to the previous orders, the change was not “forseen” in the previous orders.
[59] Thus, the court finds that the Applicant’s income, for support purposes, is limited to the portion of his pension income that was not previously shared with the Respondent through the equalization of net family property, the amount being $49,690.
[60] The court accepts that a modest amount of income should, in all of the circumstances, be imputed to the Respondent as the Applicant contends, that amount being $1,200 per month, or 14,400 annually. To be clear, the court is not suggesting, nor is the Applicant asserting, that the figure be based on the Respondent finding employment. Nor is the figure based on artificial assumptions. Rather, it is reasonable to expect the Respondent to make reasonable efforts to use the equalized assets in an income producing way, as Mr. Cavanaugh has outlined in his report. Mr. Cavanaugh’s calculation that the Respondent could generate a non-indexed annuity of $994.04 per month is reasonable. Further, the Respondent expressed confidence that her documented disabilities would result in CPP benefits generating a payment to her of $312.90 per month. When taken together, those two sums equal $1306.94 per month. Taking into consideration a modest tax rate, the threshold imputation of $1,200 per month is conservative.
[61] In arriving at this figure, the court also gives consideration to the less than adequate manner in which the Respondent failed to explain how she is supporting her current lifestyle.
[62] Accordingly, based on the Applicant’s annual income of $49,960 and the Respondent’s imputed annual income of $14,400, spousal support is varied to $1,050 per month, which is, as counsel for the Applicant contends, at the high end of the SAGG range.
Fixed End Date for Spousal Support
[63] The court has jurisdiction to make support payable for a definite or indefinite period, or the court may impose terms or conditions as it considers just.[^23]
[64] All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No single objective is paramount.[^24]
[65] Courts have a broad discretion when determining spousal support orders, and must take into account a wide variety of factors. Such determination demands a complex, and in many cases, a difficult analysis.[^25]
[66] A similar approach is mandated when determining spousal support obligations in respect to a spouse whose ability to earn income is diminished by illness. However, illness does not equate to “never-ending” support entitlement.[^26]
[67] The courts and academics have opined that non-compensatory support needs should not necessarily result in life long support. The difficulty is the extent to which the support payor must (or must not) support their former spouse for life, if disability prevents the recipient from earning income.[^27]
The Application of the Spousal Support Advisory Guidelines
[68] The drafters of the SSAG’s recognize that cases requiring the application of the Guidelines to disabled spouses are “hard” cases, but their recommendation is to allow no exception to disability cases.[^28]
Analysis
[69] As Pedlar J. said in his endorsement of December 14, 2010:
As stated in court, these parties need to end this constant running back to court with further litigation. They have a framework that has been worked out, in great detail and with a great deal of effort and expense. It is time to move one, accept that framework and implement it within a much more co-operative approach.
[70] The court finds that at practically every step in this litigation there has been difficulty. The Respondent refused to accept service of the Applicant’s motion. Thus it was necessary for the Applicant to seek an order for substitutional service. Further, the Respondent has refused to comply with previous cost orders, which remain outstanding. Obtaining financial disclosure from the Respondent has been difficult, and as the court has found on this motion, far from adequate.
[71] The facts of this case cry out for certainty and finality.
[72] The Applicant contends that a further five years of support should be ordered, with a fixed termination date imposed, having regard to the recommended “duration” set out in the SSAG’s, 17 years in total being at the high end of the range.
[73] The Respondent contends that it would be inappropriate to impose a time-limited award where a spouse suffers from disabilities.
[74] There is no bar to the court ordering a definite period of support, even in circumstances where disability prevents the recipient from earning income. That said, the court is not persuaded that the Respondent is incapable of using her share of the equalized assets to earn income. To the contrary, the Respondent purchased an income earning property in Gananoque following the final order, which she continues to own. The Respondent’s name is registered on title to certain other properties in the U.S. Moreover, the Respondent, by some means, which is not made clear by her financial disclosure, is able to meet her financial obligations based on expenses of $78,852 per annum, on gross annual income of $35,140.44.
[75] On this issue the court again considered the four spousal support “objectives” set out in s. 17(7) of the Divorce Act.
[76] The court has considered the Respondent’s documented disabilities, but concludes that, in all of the circumstance of the case, illness does not equate to a never ending support entitlement.
[77] The court has a broad discretion when determining spousal support orders, based on a wide variety of factors. In exercising its discretion, the court finds that a further eight years of support meets the four spousal support “objectives” set out in s. 17(7) of the Divorce Act.
[78] The court finds that the quantum of support should be adjusted retroactively to the first day of the first month following the Applicant’s date of retire, that being November 1, 2013. Again, the Respondent engaged in conduct deserving of cost sanctions earlier in the proceeding in a strategic effort to avoid the adjudication of the issues on the merits. Those cost orders remain outstanding. To delay the adjustment of the varied support payment to a later date would only serve to reward such conduct.
Held
[79] Effective November 1, 2013, the previous orders shall be varied such that the Applicant shall pay to the Respondent $1050.00 per month for her own support, which shall be payable on the 1st day of each month thereafter.
[80] The cost of living adjustment clause is hereby varied such that on the anniversary date of November 1, 2014, and on November 1st of each year thereafter, the spousal support payments shall be increased by the percentage increase in the Applicant’s pension income over the past year.
[81] The Respondent shall pay the outstanding cost orders within thirty (30) days, failing which post-judgment interest is to be applied to the outstanding balance calculated from January 1, 2014, onwards.
[82] Spousal support shall terminate on a final basis on October 31, 2021.
[83] All other aspects of the previous orders not specifically varied by this order shall continue in full force and effect.
[84] If the parties cannot agree on the issue of costs, written submissions shall be delivered to the court within 30 days, two pages in length, double spaced (maximum).
September 11, 2014 ______________________________
Abrams J.
COURT FILE NO.: 02-1149
DATE: 2014/09/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Edward Charles Hickey
Applicant
- and -
Yolanda Gaye Princ
Respondent
REASONS FOR DECISION
Abrams J.
Released: September 11, 2014
[^1]: Divorce order, dated February 25, 2004. See particularly paragraph 4(a).
[^2]: The parties had a child who was stillborn.
[^3]: See the Net Family Property (NFP) Statement appended as Schedule “A” in support of Cunningham J.’s order. See also the report of Mr. Douglas C. Townsend (actuary), dated January 14, 2002, marked as Exhibit “D” to the Applicant’s affidavit, sworn January 22, 0213.
[^4]: Actuarial report of Michael Cavanaugh, dated June 17, 2013, marked as Exhibit “I” to the affidavit of the Applicant, sworn November 26, 2013.
[^5]: The Respondent failed to disclose properties that the Applicant contends she jointly owns in Florida, in her financial statement, until pressed to do so by the Applicant who filed evidence showing the properties to be registered in her name. The Respondent subsequently filed an affidavit in which she deposes that, while admittedly the properties are registered in her name, they are actually owned by her mother. Notably, no affidavit was filed by the Respondent’s mother confirming this to be so. Moreover, the Respondent’s mother was present in court over the time that the motion was argued, with no permission being sought by the Respndent to call oral evidence from her mother to address this issue , pursuant to Rule 14(17) of the Family Law Rules.
[^6]: The Divorce Act, R.S.C. 1985, s. 17(1).
[^7]: The Divorce Act, R.S.C. 1985, s. 17(4.1).
[^8]: The Family Law Act, ss. 33, 34 and 37.
[^9]: The Divorce Act, R.S.C. 1985, s. 17(7).
[^10]: Willick v. Willick, [1994] 3 S.C.R. at p. 2 (headnote).
[^11]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303
[^12]: Gemmell v. Gemmell, [1999], 47 R.F.L. (4th) 149 (Ont. Gen. Div.)
[^13]: Boston v. Boston, 2001 SCC 43, [2001] 2 SCR 413, at p. 16, para. 61. See also Lemoine v. Lemoine, 1997 CanLII 9522 (NB CA), [1997] 185 N.B.R. (2nd) 173 (NBCA) at p. 3, para.10.
[^14]: Gemmell v. Gemmell, supra, at p. 7, para 39. In similar circumstances, Thompson J. (as he then was) found it ironic that the payor retired at the age of 52 years, which the parties had agreed on, only to have the support recipient complain that Mr. Gemmell retired on that date, in her attempt to argue that he should be estopped from seeking a variation of spousal support at that time because the event of his retirement and its financial consequences were foreseeable. Thompson J. rejected this argument.
[^15]: Boston, supra at p. 6, para. 3.
[^16]: Boston, supra at p. 16, para 63.
[^17]: Boston, supra at p. 16, para 64. See also Mr. Cavanaugh’s report Re: Pensions and Boston case matters marked as Exhibit “T” to the affidavit of the Applicant, sworn January 13, 2014.
[^18]: Boston, supra at p. 16, para 65.
[^19]: Boston, supra at p. 17, para 67. See also Mr. Cavanaugh’s report Exhibit “T” to the Applicant’s affidavit, sworn January 13, 2014.
[^20]: Now valued by the Respondent in her financial statement to be worth $195,000 based on the MPAC assessment. Further, the Respondent values her Gananoque rental property at $143,250 based on the MPAC assessment, which she purchased following Cunningham J.’s order.
[^21]: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.J. No. 9 at para 20.
[^22]: Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 38 R.F.L. (5th) 307 (Ont. C.A.)
[^23]: The Divorce Act, R.S.C. 1985, s. 15.2(3). The Family Law Act, s. 34.
[^24]: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 at 842, para 52.
[^25]: Moge, supra at 852, para. 85.
[^26]: Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999], 1 SCR 420 at 49 para. 61 and also Rayvals v. Rayvals [2004], SCJ No. 2538 (BCCA) at p. 5 and 9, paras. 11 and 23.
[^27]: Rayvals, supra at pp. 5, 8, 9 and 12, paras. 11, 18, 23 and 38. See also Rogerson, C., Spousal Support post-Bracklow: The Pendulum Swings Again? (2001) at p. 10-5.
[^28]: Spousal Support Advisory Guidelines – July, 2008, at s. 12.4. See also Ajula v. Singh (2012) 2012 ONSC 5217, O.J. No. 4395.