ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.G.
David Reid, for the Applicant
Applicant
- and -
K.G.
Mary Anne Cummings, for the Respondent
Respondent
HEARD: June 15, 16, 17 and 18, 2015
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION AND THE BASIC FACTS
The Parties and Their Children
1This family law proceeding has languished. It came to trial more than four years after it began.
2The Applicant father, W.G., is 44 years old. The Respondent mother, K.G., is the same age. There are two children of the marriage – I.G. (a boy), born in […] 1999 (now 16 years old), and A.G. (a girl), born in […] 2001 (now 13 years of age).
3The parties were married in September 1997 and separated in April 2010. Including a brief period of cohabitation before the date of marriage, the parties were together for about 13 years.
4Before and after separation, K.G. has been the primary caregiver for the children.
5Both children have some health issues. The boy has an enlarged ventricle in his brain which caused him to be developmentally delayed as a younger child. In October 2014, the girl was diagnosed with a heart condition.
6W.G. works at B[…]Bruce Power. He currently builds scaffolds in the civil maintenance department. Formerly, he worked at B[…]Bruce Power as a firefighter and, before that, at G[…]. His Financial Statement sworn in April 2015 shows a total annual income of $98,791.80. His total annual income over the years has been as follows: $125,490.00 in 2007, $112,045 in 2008, $124,086 in 2009, $108,706.00 in 2010, $117,502.00 in 2011, $130,834.00 in 2012, $113,529.00 in 2013, and $98,791.00 in 2014 (all of those years at B[…]Bruce Power). He switched from firefighting to civil maintenance in 2013. He has always worked full-time at B[…]Bruce Power, with complete benefits.
7K.G. is currently unemployed and has been so since September 2014. Previously, she worked as a registered nurse at the Owen Sound Hospital (that is where she worked at the time of marriage and from then until February 2005, although she returned to work as a medical transcriptionist for a very brief period of time in March 2008) and later at the Community Care Access Centre (from May 2009 until July 2012) and then at a retirement home (from July 2012 until March 2013) and most recently at the local hospice (from April 2013 until September 2014). Her Financial Statement sworn in April 2015 shows a total annual income of $11,494.20. K.G.’s Notice of Assessment for the tax year 2014 shows a line 150 total income figure of about $56,000.00. Her approximate total annual income over the prior years has been as follows: $37,000.00 in 2007, $22,000.00 in 2008, $49,000.00 in 2009, $54,000.00 in 2010, $60,000.00 in 2011, $59,000.00 in 2012 and $59,000.00 in 2013. She has never worked full-time but rather always on a casual, part-time basis and without any benefits (although, at times, she worked near full-time hours).
8The mother has no current source of income besides child and spousal support.
9Her Employment Insurance benefits ran out in January 2015.
10W.G. has no significant health issues. He is not in any way disabled, although he testified that he moved from firefighting to civil maintenance at B[…]Bruce Power in 2013 for a variety of reasons, one of which was the physical demands of the firefighting and the resulting stress on his body.
11K.G. has numerous health issues. In 1994, she was involved in a very serious motor vehicle accident in Florida. The other occupant of the vehicle died. K.G. was in critical condition. She had multiple left knee surgeries in 1995. She injured her right shoulder at work at the Owen Sound Hospital in October 2000. In February 2005, while at work at the same Hospital, K.G. almost died as a result of anaphylaxis, specifically, a severe allergic reaction to latex. In March 2008, while working as a medical transcriptionist, K.G. sustained a bilateral wrist injury. In April 2010, after the separation and the discovery of W.G.’s infidelity, K.G. became very depressed. In September 2014, she had a total left knee replacement, which procedure led to a damaged femoral nerve and damage to a second nerve. K.G. lost feeling in her left side.
12At one point, while still employed with the Owen Sound Hospital, K.G. had three claims with the Workplace Safety and Insurance Board (“Board”). Those claims were related to the shoulder injury in 2000, the latex issue which arose in 2005 and the wrist injury in 2008. All three of those items have been recognized by the Board as permanent impairments. All three of those items caused changes to K.G.’s employment. She worked modified duties after the shoulder injury in 2000. The latex crisis in February 2005 ended her career in the emergency department at the Owen Sound Hospital. The wrist injury ultimately led to her termination by the organization that runs the Owen Sound Hospital and its affiliates.
13Today, K.G. is functioning somewhat better than she was a few months ago. Since the beginning of this year, she has experienced some degree of gradual improvement, overall. She maintains, however, that she cannot return to work at the hospice or at the retirement home or at the Community Care Access Centre, as examples.
14Since the end of her employment with the hospice in September 2014, K.G. has applied to a couple of jobs, with no success (at least not yet).
15Filed as part of Exhibit 2 is a letter from Scott Lovell, the Executive Director of the hospice, dated April 23, 2015. That letter confirms that K.G. was hired as a part-time registered nurse; that she last worked at the hospice on September 7, 2014; and that, following the recent surgery, her return to work at the hospice is currently uncertain and unscheduled.
Independent Medical Evidence at Trial
16Dr. Tweedie, K.G.’s long-time family physician, testified at trial. He expressed certain opinions. His qualifications were not challenged by counsel for W.G. The admissibility of his evidence was not disputed.
17According to the doctor, it was necessary that the mother have the knee replacement surgery in September 2014. Dr. Tweedie acknowledged that, as indicated by another physician who has seen K.G. (Dr. Meikle), there has been some recent improvement in K.G.’s hip flexion and knee extension. Further, subsequent to the knee replacement surgery in September 2014, it had been observed by Dr. Cameron (a specialist in Toronto and the physician who was in charge of the surgery) that the mother could return to modified or light work, initially with the aid of crutches.
18Neither Dr. Meikle nor Dr. Cameron testified at trial, however, some of their notes/reports were filed at the commencement of the trial as part of a large Exhibit Brief compiled by the mother’s counsel. At the time of filing, counsel for W.G. expressed some concern about the fact that those two doctors were not being called as witnesses, a concern that was spoken about again at the commencement of closing submissions by counsel. There was some mention about a potential adjournment request. That was not pursued and was never asked for.
19Of course, there is no property in a potential witness. Doctors Meikle and/or Cameron could have been called by W.G. In any event, there is no prejudice to the father by having the reports of Doctors Meikle and Cameron filed. K.G. was fair enough to file those documents herself, through her counsel, even though it is arguable that the reports are not quite as helpful for her case as the evidence of Dr. Tweedie. Further, I, as the trial judge, could have disallowed the reports of Doctors Meikle and/or Cameron to be filed at all. In the absence of any examination of those witnesses at trial, I could have applied strict rules of evidence and decided that the reports were inadmissible hearsay. Such a ruling would have hurt W.G. more than K.G.
20I say all of that to make it clear that it is to the benefit (not detriment) of W.G. that I know anything at all about the observations of Doctors Meikle and Cameron. Mr. Reid, in his usual candid and professional manner, appeared to acknowledge that reality at the start of his closing submissions. No adjournment request was made. I was invited to consider all of the medical evidence, including the reports of Doctors Meikle and Cameron (those filed at the commencement of the trial as part of Exhibit 2 and those filed later in the trial).
21To be clear, I have considered the totality of the evidence at trial, including the reports that were filed and which were authored by Doctors Meikle and Cameron.
22The prognosis, per Dr. Tweedie, is that it will be about two years until we really know how K.G.’s left knee and the nerves are doing. In the meantime, the mother requires ongoing, supervised physiotherapy.
23In a letter dated April 20, 2015, Dr. Tweedie wrote that “[t]his patient [K.G.] is medically disabled from working at this time”. Dr. Tweedie maintains that belief currently. Today, according to Dr. Tweedie, K.G. cannot work, including as a manager. She is a suitable candidate for permanent disability, and thus, Dr. Tweedie is supporting her application for Canada Pension Plan benefits.
24In cross-examination, Dr. Tweedie was challenged as to how he can express the opinions that he has when he does not know the specifics about K.G.’s duties in her former employment positions. Dr. Tweedie indicated that he knows that the mother worked at the Owen Sound Hospital, the Community Care Access Centre, the retirement home and the hospice. He knows that she is a nurse. He knows everything about her medical history. He does not know all of the details about what she did at each position, day in and day out. He does work, however, as part of the Owen Sound Family Health Team (a group of family physicians) and at the Hospital and at the hospice. He has been the mother’s family doctor for 13.5 years. He has seen her regularly, about three to four times per year at least.
25Regarding the latex issue, in cross-examination, Dr. Tweedie stated that the Family Health Team uses latex. He agreed that K.G. would have a better chance of finding a latex-free environment as a manager than she would as a nurse.
26Nothing is absolute. That was readily acknowledged by Dr. Tweedie in his evidence at trial. For example, in the abstract, he is not saying that K.G. is precluded from any work or school that would require her to sit for brief periods of time.
27Dr. Tweedie was challenged in cross-examination as being an “advocate” for the mother. He rather sharply retorted that his findings are based on his medical opinions.
28It should be noted that, prior to the cross-examination of Dr. Tweedie, which questioning was ably performed by Mr. Reid, there had been a silent undercurrent through the trial that, from W.G.’s perspective, K.G. may be malingering; that she may be exaggerating her medical difficulties and inability to work.
29Dr. Tweedie was never asked in cross-examination whether he has had occasion to doubt or question the reliability and/or credibility of K.G. as a reporter or historian of her medical issues. And he was never asked anything about malingering.
30In closing submissions, Mr. Reid made it clear that there is no serious suggestion being advanced by the Applicant that K.G. is malingering or that she undertook an unnecessary surgical procedure in September 2014. Of course, it makes absolutely no sense that she would be malingering. If she returned to work at the hospice, she would earn a much higher net income per month than any conceivable spousal support award would be. K.G. is not a stupid or lazy person.
31With the above factual background in place, let us take a step back and trace the history of this proceeding so that the issues can be properly framed and resolved.
The Pleadings
32In May 2011, W.G. commenced an Application. He sought a divorce, joint custody of the children (primary residency with the mother, and access between the children and the father), equalization of net family properties, an order that the father has paid spousal support of $900.00 monthly from September 2010 to February 2011 and $690.00 per month since March 2011, and an order that the net proceeds of sale of the matrimonial home being held in trust by a lawyer be used to pay off family debts.
33In her Answer dated July 2011, K.G. sought a divorce, custody of the children (alternatively, joint custody with the children living primarily with the mother), spousal support in her favour (retroactive to the separation date), child support (retroactive to the date of separation), attribution of income to the father, equalization of net family properties (alternatively, unequal division in her favour), and orders regarding the father’s health benefits, pension benefits and life insurance.
The Litigation History
34On consent, in February 2012, O’Connor J. made a Temporary Order that the father pay child support of $1617.00 monthly, based on a total income for 2011 of $116,509.00, plus $690.00 per month for spousal support.
35In April 2012, again on consent, Thompson J. made a Temporary Order which recognized that the father had made spousal support payments to the mother between October 2010 and January 2012. He had paid $900.00 monthly up to and including January 2011 and $690.00 per month thereafter.
36In September 2012, whether on consent or not I am not sure from the wording on the Order, Bielby J. made a Temporary Order that the parties have joint custody of the two children with primary residency being with the mother. A specific access schedule was set for the children and their father. Base child support and spousal support remained unchanged from the Order in February 2012. Section 7 expenses for the children were to be divided 65% for the father and 35% for the mother.
37In April 2013, on consent, a Final Order was made by Price J. which calculated spousal support arrears owing by the father and which ordered that W.G. pay to K.G. $30,982.00 (comprised of an equalization payment, child support arrears, spousal support arrears, reimbursement for credit card expenses, and costs). In addition, the father’s employment pension was ordered to be divided equally at source. Further, ongoing child support payable by W.G. was set at $1343.00 monthly plus 65% of section 7 expenses. Also, the father was ordered to maintain the mother and the children as beneficiaries of his life insurance through work for so long as K.G. is eligible for spousal support. And W.G. was to maintain coverage for the mother and the children under his extended health benefits through his employment.
38Issues of custody and access have now also been settled between the parties, on a final basis. The parties have joint custody of the two children, with primary residency with the mother and specified access between the children and their father (including alternate weekends, plus every Wednesday after school, plus time for special occasions and during the summer months).
39As part of that same Order made by Justice Price, but on an interim basis, W.G. was ordered to pay to K.G. $900.00 monthly for spousal support. That was based on the father’s projected total annual income for 2013 of $95,000.00 and an attributed income of $21,320.00 for the mother.
40Thus, spousal support is the biggest issue that remains outstanding.
41As can be seen from the above, at the time of trial, W.G. had been ordered to pay child support in the amount of $1343.00 per month plus 65% of section 7 expenses (a Final Order) and $900.00 monthly for spousal support (a Temporary Order).
42This matter was tried before me in Owen Sound over four days on June 15, 16, 17 and 18, 2015. On behalf of the father, I heard from W.G. On behalf of the mother, I heard from K.G. and Dr. Tweedie (her long-time family physician). Numerous Exhibits were filed.
II. THE ISSUES AND THE POSITIONS OF THE PARTIES
43In his opening statement, counsel for the Applicant submitted that the main issue to be decided is that of ongoing spousal support being claimed by the mother. Secondary issues are a few disputed items concerning section 7 expenses for the children and whether, if a divorce is granted and K.G. is no longer eligible for medical benefits under W.G.’s employment plan, the father ought to pay for some other form of coverage for the Respondent.
44Regarding spousal support, W.G.’s position is that it ought to be terminated. The mother is not entitled to support on a compensatory basis. As for need, there is insufficient evidence that K.G. is disabled and, thus, not able to work.
45Alternatively, the Applicant submits that, if the Court determines that K.G. remains entitled to spousal support on a go-forward basis, the quantum ought to be limited to something in the low to mid-range. In addition, because there is some uncertainty about the Respondent’s health situation, there ought to be a review date provided for in the not too distant future.
46With regard to section 7 expenses, W.G. is content to continue to pay 65% of those (with K.G. paying 35%). But W.G. disputes certain items such as YMCA memberships for the children and cell phones for the children.
47Finally, on the third issue identified above, W.G. asserts that he cannot afford to pay for private medical benefits coverage for the mother.
48In her opening statement, counsel for the Respondent described the mother as a determined person who has had a long history of serious health issues which have arisen from a significant motor vehicle accident in 1994, an injury at work in 2000 and a life-threatening allergy to latex which developed in 2005.
49On the issue of ongoing spousal support, K.G. submits that she remains entitled to support on both compensatory and need bases. During the marriage and since separation, she has always been the primary caregiver for the children. She supported W.G.’s training and career advancements. While W.G. has consistently earned around or more than $100,000.00, the mother’s total income has never been more than $60,000.00 since 2007 and is nil currently. She is disabled and unable to work.
50Six issues were identified by counsel for the mother during her opening statement: (i) ongoing child support and section 7 expenses payable by W.G., (ii) retroactive child support and section 7 expenses owing by the father post-May 1, 2013, (iii) ongoing spousal support owing to the mother, (iv) the issue of whether W.G. ought to pay for medical benefits coverage for K.G. in the event that the parties are divorced, (v) the father’s non-compliance with payments due under the consent Order of Justice Price made in April 2013, and (vi) a divorce.
51At a bare minimum, argues K.G., she ought to be receiving ongoing spousal support of $2043.00 monthly (mid-range) plus medical benefits paid for by the Applicant.
52Both parties argue that income ought to be attributed to the other. Specifically, for purposes of ongoing spousal support, the father wants some income to be imputed to the mother, and the mother wants the father’s income to be based on an average over three years (2011, 2012 and 2013).
53By the time that we reached closing submissions by counsel at Court on June 18, 2015, the positions, as expected, had been massaged a little. The final positions of the parties are indicated below as I deal with each issue to be decided.
III. ANALYSIS
Ongoing Spousal Support
The Law
54The objectives of a spousal support award, relevant to the discussion in this case, include (i) recognizing economic advantages and disadvantages to the spouses of the marriage and its breakdown, (ii) relieving economic hardship caused by marriage breakdown, and (iii) the promotion of self-sufficiency of separated spouses within a reasonable period of time. Subsection 15.2(6) of the Divorce Act.
55There are three distinct conceptual bases for entitlement to spousal support: on the basis of need [Bracklow v. Bracklow, (1999) 1999 715 (SCC), S.C.J. No. 14], on a compensatory basis (Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813) and on a contractual basis. The third basis is not relevant here.
56“Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership”. Gray v. Gray, 2014 ONCA 659, at paragraph 27.
57In determining need, we are guided by the principle that the recipient spouse is entitled to maintain the standard of living that (s)he was accustomed to just prior to the time of separation. Marinangeli v. Marinangeli (2003) 2003 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at paragraph 74.
58As outlined in Moge, supra, the principle underlying the compensatory model of spousal support is, in part, that a spouse who foregoes educational and employment opportunities to care for the children and maintain the household may very well enhance the earning potential of the other spouse in pursuing his or her economic goals (paragraph 70).
59The test for imputation or attribution of income to a spouse is set out at paragraph 23 of the decision of the Court of Appeal for Ontario in A.M.D. v. A.J.P., 2002 41868 (ON CA), [2002] O.J. No. 3731:
Application of Section 19(1)(a) of the Guidelines
23In my view, in applying this provision, the trial judge was required to consider the following three questions.
Is the spouse intentionally under- employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question 2 is negative, what income is appropriately imputed in the circumstances?
The Law as Applied to the Facts in this Case
60In closing submissions, Mr. Reid conceded that K.G. remains entitled to spousal support on the basis of need. Compensatory entitlement is disputed.
61Ms. Cummings submits that the Respondent is entitled on both bases. I agree.
62As it is admitted by the father, it is unnecessary for the Court to say anything about K.G.’s present and ongoing need for spousal support other than to observe the obvious: her current income is nil; unless and until she becomes healthier and finds employment, there is no prospect of her income increasing in a material way (even a successful appeal of the denial of her Canada Pension Plan benefits application would result in an income of less than $12,000.00 per annum); she has a host of serious medical issues which necessitate significant expenses for items like physiotherapy, massage therapy and medication; and her standard of living today is substantially below what it was before separation (when the family was earning more than $150,000.00).
63Regarding the compensatory basis for entitlement, I make the following findings of fact.
64First, K.G. has always, before and after separation, been the primary caregiver for the children. The father admitted that in cross-examination.
65Second, in order to care for the children, K.G., at least between the birth of the first child and the date of separation, never worked on a full-time basis. That was admitted by W.G. in cross-examination.
66Third, because she was the primary caregiver for the children before separation, K.G. allowed the father to work more and advance professionally. W.G. admitted that in cross-examination.
67Those findings of fact, all based on the father’s own admissions at trial, lead to the inescapable conclusions that (i) K.G. sacrificed her own employment opportunities in order to care for the children, and (ii) those sacrifices by the mother enabled W.G. to enhance his earning potential, pursue his economic goals and thrive in his career at B[…]Bruce Power. And that is exactly what he did. In 2009, for example, the last full year before separation, W.G. earned $124,086.00, including more overtime hours than the year prior (when he earned about $12,000.00 less).
68Mr. Reid submitted that, although there was an economic advantage conferred on W.G., there was no disadvantage to K.G. With respect, that conflates the issue with the concept of unjust enrichment. Besides, there was disadvantage to the mother. By W.G.’s own admissions at trial, K.G. worked part-time (less hours and with no benefits), at least partially so that she could stay at home and care for the children.
69K.G. is entitled to spousal support on both a need and compensatory bases.
70I reject the submission by Mr. Reid in closing argument that it was K.G.’s own health issues, and not the marriage or her childcare responsibilities, which conferred an economic disadvantage on her. Although it is true that health issues have constrained K.G.’s ability to work, by W.G.’s own admission at trial, her childcare responsibilities were also a significant reason as to why she always worked part-time before the separation.
71On the issue of quantum of ongoing spousal support, I must first determine what incomes to use for the parties.
72It is simple for K.G. – nil. That is her actual current income. I reject any suggestion that I ought to use the figure of $11,700.00. That may be what the mother will receive if her Canada Pension Plan benefits application is ultimately granted, however, I have no reliable evidence to conclude that it likely will be granted. It was denied. It is being appealed. We will have to await the outcome of the appeal.
73There is no basis upon which to impute any income to the mother. She is not intentionally unemployed. She cannot work for medical reasons. That is elaborated upon below, under this same heading, when I deal with the request by W.G. to set a review date to re-assess ongoing spousal support.
74Regarding W.G., I have decided that the most accurate figure to use is $102,000.00 (rounded down from $102,400.00). I agree with Mr. Reid in that regard.
75By extrapolating his current income with reference to his recent pay stub (Exhibit 3), it is agreed by the parties that $102,000.00 is the amount that he is projected to earn this year.
76I have considered carefully the submissions by Ms. Cummings that the Court ought to use an average of what W.G. earned in 2011, 2012 and 2013 ($119,571.00). That submission is not without merit. After all, in each of those years, the father earned between $11,000.00 and $28,000.00, approximately, more than the $102,000.00 figure.
77In the end, however, I am not persuaded that the test for attribution of income has been met. Although it is clear that the father chose to switch positions at B[…]Bruce Power, and that the said switch caused a decline in his income, which findings lead to satisfaction of the condition that W.G. is intentionally underemployed, I find that the change in positions was a reasonable choice for the father to have made at the time.
78I am concerned that the father hedged when asked in cross-examination whether he chose, after separation, to not work like he did beforehand and only admitted that after being shown an earlier affidavit that he swore in the within proceeding.
79Having said that, I accept W.G.’s evidence that the switch in jobs was not to deliberately reduce his income but rather for the legitimate reasons of getting away from the relentless schedule of constant shift work, to obtain a less physically demanding position and to have more opportunities to spend time with the children.
80Of course, I may accept all, some or none of what a witness says. Generally, W.G. was not a good witness. He demonstrated a very poor memory of events. But I think that he loves his children. And I believe him that his desire to be more available to the children was a significant part of his decision to change positions at the end of 2012.
81Thus, the incomes for the parties for the purposes of ongoing spousal support are fixed at $102,000.00 for W.G. and nil for K.G.
82According to the Spousal Support Advisory Guidelines, which I will adhere to on these facts, the spousal support payable by W.G. would be somewhere along the scale of $1405.00 per month (low), $1633.00 monthly (mid) and $1891.00 (high).
83Mr. Reid suggests that mid-range support is appropriate, plus whatever the Court decides in terms of medical benefits coverage for the mother (if W.G. is ordered to pay that). If a divorce is granted and K.G. becomes ineligible as a beneficiary under the father’s employment package, then the cost of the next best substitute plan is $160.60 monthly (Exhibit 7). Mr. Reid recommends that the said figure simply be added to the mid-range quantum and paid as spousal support.
84Ms. Cummings suggests that we use the high-range amount, which sum shall be deemed to include the cost of the alternate benefits plan. She points out that $160.60 per month, grossed-up for tax purposes, would be the equivalent of about $200.00 monthly in cost in any event. $1633.00 plus $200.00 ($1833.00) is close to $1891.00.
85I agree with Ms. Cummings. Considering that the substitute benefits plan is not equivalent to W.G.’s employment package (the alternate is inferior in that there are limits to what can be claimed per year for physiotherapy and massage therapy, both necessary for K.G., and medications are not covered 100 per cent), it is reasonable to conclude that K.G.’s medical costs are going to increase after the parties are divorced. She takes numerous medications. That is not a real choice. She attends physiotherapy and massage therapy regularly. That is, likewise, not a real choice. The extra $58.00 per month ($1891.00 less $1833.00) will go towards covering those extra costs.
86Thus, the amount of monthly spousal support to be paid by W.G., starting July 1, 2015 and on the first day of each month thereafter, is fixed at $1891.00. A Support Deduction Order shall issue for enforcement through the Family Responsibility Office (“FRO”).
87As agreed to by K.G., an automatic amendment (a reduction) shall be made to the quantum of monthly spousal support being paid by W.G. in the event that the mother’s appeal is allowed and she is granted Canada Pension Plan benefits.
88The within award of spousal support is indefinite. The Guidelines provide for that. Further, the setting of any termination date by the Court at this time would be unreasonable and completely arbitrary, given the mother’s current medical circumstances.
89On W.G.’s request for the Court to direct a specific review date, I decline to do so. Review dates are not the norm. Absent a material change in circumstances, the parties cannot afford to come back to Court. Some degree of finality is required for both parties.
90I accept that K.G. is improving, gradually. She is better now than she was at the start of this year.
91This is not a case, however, where it can be reasonably anticipated that the present state of uncertainty will be resolved any time soon. I accept the evidence of Dr. Tweedie that K.G. is medically disabled from working at all at this time. That factual finding, coupled with the prognosis that it will be quite a while, if ever, before she is well enough to return to work in any capacity, obviates any utility of setting or the need to set a review date. On a material change in circumstances, either party will be at liberty to bring the matter back to Court.
92To explain why I have relied upon the evidence of Dr. Tweedie, it must be said that I found Dr. Tweedie to be a straight-forward witness. He would not, in my view, put his professional reputation on the line by putting in print and testifying in Court to false or misleading information, just to please his patient. I do not accept the submission by Mr. Reid that Dr. Tweedie’s credibility or reliability is in some way compromised by him being an advocate for K.G. I do not view him as such.
93I am convinced that K.G. wants to work. She has tried her best to work since separation. She would return to work tomorrow if she could. Medically, she cannot. K.G. says that. Dr. Tweedie says that. Nothing that has been observed or offered by Doctors Meikle and/or Cameron causes me to find otherwise.
94Mr. Reid is absolutely correct that K.G. worked for quite a while between 2009 and early September 2014. I cannot turn back the clock, however. Much has changed since then, most particularly the serious problems which stem from the total knee replacement surgery in September 2014.
95Finally, I want to say explicitly that I have considered the submissions by Mr. Reid on whether W.G. can afford to pay the spousal support ordered herein. He can. His recently sworn Financial Statement shows him in the hole by several hundred dollars per month. But that evidence is unreliable in that W.G. admitted at trial numerous items that are in error. He makes very good money. He will have to adjust his lifestyle to pay what K.G. reasonably deserves.
96Besides, even if we rely in part on the said Financial Statement in terms of the monthly income and some of the monthly expenses, we know that the father is actually several hundred dollars, even a couple of thousand dollars, on the plus side each month. Taking into account the father’s own testimony that his monthly expenses on the said Statement are inflated by about $1500.00, and eliminating or reducing discretionary items like alcohol and tobacco, and eliminating the $1164.00 per month in debt payments which have nothing to do with the equalization payment that he had to make under the consent Order made by Price J. in April 2013 and which were not rationally explained by the father at trial, there are more than ample funds available for W.G. to pay the monthly spousal support ordered herein.
97I am satisfied that W.G. has the ability to pay the $1891.00 per month, even after a consideration of child support and section 7 expenses.
Ongoing Child Support and Section 7 Expenses, Past and Future
98The parties agree to continue paying 65% (the father) and 35% (the mother) of the section 7 expenses. So ordered.
99W.G. agrees to pay what he owes for the following expenses outlined in Exhibit 5: hockey, skiing, golfing and MedicAlert. That total sum shall be paid by W.G. to K.G. within ninety days of the date of these Reasons.
100On a go-forward basis, those items are proper section 7 expenses.
101W.G. disputes that he owes anything for the children’s cell phones and their YMCA memberships. I disagree. Those are proper section 7 special or extraordinary expenses.
102Having regard to the best interests of the children, those two items are reasonably necessary. Further, having regard to the means of the parents, they are reasonably affordable.
103On the former (necessity), these children have special needs – they must stay active and healthy and be able to communicate with the parties at all times. Even the father has used the YMCA membership with the boy. And W.G. regularly texts the children on their cell phones.
104On the latter (affordability), I do not find the amounts outlined in Exhibit 5 to be exorbitant.
105Within ninety days, W.G. shall pay his share of those expenses as outlined in Exhibit 5.
106Going forward, those items are proper section 7 expenses, with one caveat. The boy is working part-time. His employment and his age dictate that he should also pay towards some of his expenses. Thus, in the future, for the boy’s YMCA membership and cell phone only, W.G. shall pay 60%, K.G. shall pay 30% and the boy shall pay 10%. In the event that the boy loses his employment, surely the parties can agree between them whether a change ought to be made. The Court does not need to get involved with that.
107Going forward, based on an income of $102,000.00, per the Guidelines, W.G. shall pay child support in the amount of $1445.00 per month. Enforcement shall be through the Family Responsibility Office, commencing on July 1, 2015 and on the first day of each month thereafter.
Pre-Trial Child Support
108The parties agree on this issue. From May through to December 2013, W.G. was paying $1343.00 per month in base child support (ordered by Price J., on consent). It is agreed that, based on his actual income of $113,529.00, he ought to have been paying $1582.00 monthly. Counsel can calculate the arrears for 2013. Those arrears shall be paid by W.G.
109For 2014, it is agreed that W.G. ought to have been paying $1388.00 per month based on his actual income of $97,741.00. Those arrears, to be calculated by counsel, shall be paid by W.G.
110For the period of January through June 2015, using the $102,000.00 income figure decided upon above, W.G. ought to have been paying $1445.00 per month. Those arrears, to be calculated by counsel, shall be paid by W.G.
111I heard no submissions on how the total arrears should be paid. Counsel can address that, very briefly, in their costs submissions. In a lump sum with a deadline? Through FRO? If through FRO, how much per month and starting when?
Medical Benefits
112This issue is the subject of discussion above regarding ongoing spousal support. W.G. shall pay for the proposed alternate medical benefits package but not as a separate item. He will be paying ongoing spousal support at the high range, which sum shall be deemed to include the cost of the substitute medical benefits coverage for the mother.
The Order of Price, J. – April 2013
113The parties agree that, of the $31,000.00 or so ordered to be paid to K.G. under the consent Order of Price J. made in April 2013, only $17,065.00 has been proven to have been paid. That leaves $13,918.00 remaining, unaccounted for.
114Mr. Reid submits that the Order was filed with FRO and ought to be left to FRO to properly enforce.
115Ms. Cummings argues that it is W.G.’s onus to prove that the Order was complied with, and he has failed to do so.
116I agree with Ms. Cummings. As the payor under the Order, it is reasonable to expect that W.G. be able prove that he has paid what he was required to pay. He testified that he has, and if I believed that evidence I could rely upon it without anything else. But the Applicant was so uncertain in much of his evidence and so forgetful about the most basic of matters that I am not persuaded on balance, on his testimony alone, that the remaining $13,918.00 has indeed been paid. I just do not know. The Director’s statement is useless to me. It is incomprehensible, as acknowledged by both sides.
117I must conclude that $13,918.00 remains outstanding.
118Mr. Reid submits that the Court has no jurisdiction to make any further Order about the outstanding amount. I disagree. The Order of Price J., made on consent, has not been complied with. The deadline is long overdue. The interests of justice require that I bring some clarity to the matter as to what amount is in default and when it must be paid.
119W.G. shall pay to K.G. the sum of $13,918.00. If that amount is paid, whether in one lump sum or in instalments, by December 31, 2015, then any accumulated interest shall be waived (in light of the father’s other financial responsibilities ordered herein). Otherwise, the interest provided for in the Order of Justice Price shall apply. I have tried to be as fair as possible to the father. I do not want to crush him. He needs to be there for his children.
Divorce
120On consent, the parties are divorced. The Order shall take effect immediately.
IV. CONCLUSION
121A Final Order shall issue in accordance with these Reasons for Judgment.
122If the parties cannot resolve the issue of costs, I will accept written submissions as follows. Each submission shall be limited to two pages, excluding supporting documents (such as a Bill of Costs and, if applicable, Offer(s) to Settle). K.G.’s submissions are due within thirty days of the release of these Reasons. W.G.’s submissions are due within fifteen days thereafter. No Reply.
123I thank counsel for their assistance. The case was presented well on both sides.
Conlan J.
Released: June 22, 2015