SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-15-20155
DATE: 20151216
RE: Stephen Peter Hersey, Applicant
AND:
Christine Hersey, Respondent
BEFORE: Pollak J.
COUNSEL:
Brahm Siegel C.S., for the Applicant
Erica Tait, for the Respondent
HEARD: December 3, 2015
ENDORSEMENT
[1] Both parties have brought a motion to change a consent support Order of February, 2007:
(i) the Applicant moves to change child support to provide for support of $882 per month, retroactive to September 1, 2015, with a credit for the amount of $1,655 per month in child support payments that have been made from September 1, 2015.
(ii) the Respondent agrees to this revision for child support and has commenced a motion for a retroactive spousal support variation of $204,605.60 for the period of January 1, 2012 to August 31, 2015 as well as ongoing increased spousal support.
[2] The Applicant also asks that the payment of the child's postsecondary expenses be based on the relative percentage of incomes for the Applicant of $337,000 and imputed income of $79,000 for the Respondent.
[3] As the parties agree on the amount of the appropriate Child support there are two issues for this Court resulting from the motions brought by both parties - these are the appropriate percentage that each parent should pay for the child's schooling expenses and whether the Respondent is entitled to a retroactive payment for the increased spousal support and an increase in spousal support in the future.
[4] The parties agreed and the Court ordered that all issues between the parties be resolved by way of a long motion and that affidavits would be used in support of these motions. Both parties seek to vary the consent support order of February 2007. That Order provides for child support of $1,649 (now $2,537 per month based on the Respondent's income of $192,160 and the Respondent's income of $67,770). Spousal support was set at $2,000 per month (now $2,256).
[5] Both parties agree that there has been a change in the financial circumstances of the parties from the date that the consent order was entered into. The Applicant's income in 2014 was $324,030. The Respondent's income was $75,981 in 2012; $65,429 in 2013. The decrease in income for the Respondent was the result of her working part-time work instead of full time in September 2013. Her full-time salary is $79,414.
[6] The Applicant submits that in this proceeding the Court should impute a full-time income of $79,414 to the Respondent because she is intentionally underemployed. The Respondent's position is that she was required to make the change from full-time to part-time employment for medical reasons and that therefore it would be improper to impute income to her as is urged by the Applicant.
[7] To resolve this issue, the Court must consider the medical evidence presented by the Respondent to support her claim that she is medically unable to work on a full-time basis. In this regard, the Applicant submits that there is no medical evidence which indicates that the Respondent is unable to work full-time. Rather the evidence is based largely on the Respondent's complaints to her physician about her inability to work full time. The Applicant also submits that the medical evidence of a diagnosed condition is not sufficient to form the basis of a finding by this Court, that the Respondent is medically unable to work on a full-time basis.
[8] I agree with the submissions of the Applicant that the medical evidence presented is not sufficient to support this finding by the Court. Further the Applicant notes that there is no evidence that the Respondent asked for accommodation by her employer in order to help her to work full-time. The Respondent has not applied for any CPP benefits. The Applicant argues that the Respondent has worked full-time for many years with many of the symptoms she now complains of. For all of these reasons, I find that it is appropriate in these motions to impute a full-time income to the Respondent of $79,414. In order to determine the appropriate percentage for the sharing of expenses, the parties should use the present income of the Applicant of $324,030 and the imputed income of the Respondent $79,414.
[9] The next issue for the Court to determine is whether the Respondent is entitled to a retroactive and future increase in spousal support.
[10] The Respondent argues that on the basis of the Applicant's increase of income since the date of separation and on the basis of her medical condition she has a need for an increase in spousal support. She emphasizes that the Applicant's income has increased significantly and hers has decreased significantly, since the date of the Order in 2007. She further relies on the financial statements to show that the Applicant is much better off financially than she is. As well, she relies on the fact that the child support will now be reduced and the fact that she is medically unable to work full-time. She also submits that her medical condition (specifically the stress and anxiety she suffers) is a result of the Applicant's horrific assault on her at the time the breakdown of the marriage as well as the Applicant’s abusive litigation strategy against her in these proceedings. She relies on the Divorce Mate calculations resulting from the differential in incomes between the two parties.
[11] The Applicant on the other hand relies on income which should be imputed to the Respondent. For the reasons noted above, I have already found that such income should be imputed.
[12] With respect to whether or not the Respondent should be awarded a retroactive increase in spousal support the Applicant relies on the case of Thompson v. Thompson, 2013 ONSC 5500, 2013 Carswell Ontario 12392 (Ont.S.C.J.) at 103 wherein the Court summarized the relevant principles with respect to the treatment of post-separation increase in income. The Court held that:
“79. A comprehensive review of the principles at play in the treatment of post-separation increases in income was thoroughly canvassed in Thompson v. Thompson, where Chappell J. summarized the leading principles:”
“[103] The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:
a) A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases.
b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship.
c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.
d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case.
e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.
g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.
h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.
i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.
j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.”
[13] In applying the principles referred to by the Court I do not find that the Respondent has established to her right to share in the post-separation income increases of the Applicant. The careers of the parties where established prior to the marriage and there has been no significant change in the career of either party. Further, on the basis of the evidence, I do not find that the Respondent has made the type of sacrifices that the courts have required in order to justify such an award.
[14] The Applicant submits that where such criteria have not been met, the Court must take the income of the Applicant at the date of the separation which was $181,000 (the average of the Respondent's 2004 and 2005 incomes) into consideration. The Divorce Mate calculation with the Respondent's income of $181,000 and imputed income for the Respondent of $79,000 and child support at $882 per month results in spousal support in the range of $1,821 to $2,428 per month. The Applicant further submits that the amount of support he is currently paying of $2,256 is within the range of the suggested table amounts and leaves the parties in almost the same position with respect to their net disposable property. It is therefore submitted that this is the only reasonable decision for the Court to reach in the circumstances of this case.
[15] The Respondent did not move for an increase in her spousal support after the 2007 Order until the Applicant brought his motion to change. Her explanation for this delay is that she feared reprisals from the Applicant. I agree with the submissions of the Applicant that it does not appear, on the basis of the evidence, that the delay in seeking the retroactive increase in spousal support is justified. The award requested by the respondent is in excess of $200,000, which having regard to the financial circumstances of the Applicant, appears to be unreasonable.
[16] For the above-noted reasons, this Court therefore orders that the 2007 Order be varied to provide that:
(i) the child support payable be changed to the amount of $884 per month with the appropriate credit for the child support payments that have been made from September 1, 2015;
(ii) the expenses of the parties be paid in the ratio of their relative incomes; and finally
(iii) there is no change in the amount of spousal support.
[17] Both parties provided bills of costs and made submissions with respect to their entitlements should they succeed on these motions. The Respondent's bill of costs on a partial indemnity basis was for the amount of $37,000 and the Applicant's bill of costs on a partial indemnity basis was for the amount of $21,000. The Respondent did not dispute the reasonableness of the Applicant's costs request.
[18] The Applicant, Mr. Hersey has been the successful party on this Application. He is presumed to be entitled to an appropriate cost award. If the parties are unable to agree on the appropriate cost award, they may make brief written submissions (3 pages or less) as follows:
The Applicant’s submissions must be delivered by 12:00 p.m. on December 29, 2015; and the Respondent’s reply costs submissions must be delivered by 12:00 p.m. on January 15, 2015.
Pollak J.
Date: December 16, 2015