Court File and Parties

COURT FILE NO.: 07-2015 DATE: 2016/06/21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Stéphane Noël, Applicant AND: Jaimie Noël, Respondent

COUNSEL: Michèle Labrosse, for Applicant Nadim Barsoum, for Respondent

HEARD: April 18, 21, 22, 25 and 29th, 2016

REASONS FOR JUDGMENT

CHARBONNEAU, M.Z.

Nature of the Proceedings

[1] The applicant commenced these proceedings on February 14, 2015. He claimed at that time an order for custody of the parties’ only child, Kaitlin born April 4, 2002, child support, spousal support, an equalization of the parties’ net family property and a divorce. The parties have now settled most of the issues at a settlement conference held before Justice Warkentin February 5, 2006, as follows:

1. A divorce to issue.
2. The parties shall have joint custody of Kaitlin. The child’s principal residence will be with the applicant father.
3. The respondent shall have access to Kaitlin in accordance with Kaitlin’s wishes.
4. The applicant shall pay an equalization payment in the amount of $173,000 to the respondent by way of a transfer from his pension plan.

[2] The only remaining issues at trial were the annual income of the respondent for support purposes, the extraordinary and/or special expenses incurred by each party for the child, the applicant’s entitlement to spousal support and if found to be so entitled, the quantum of that support and the date at which both child and spousal support should begin (the retroactivity issue).

Background Facts

[3] The parties were married on October 10, 1993 in Happy Valley-Goose Bay, Newfoundland. The applicant was 23 years old. He was a member of the armed forces working as a military air controller. The respondent was 17 years old and was in full time attendance in school, completing grade 12.

[4] They lived in Goose Bay until 1995 when the husband applied and was accepted in the Ontario Provincial Police. After a 3-month stage at the Police College in Aylmer Ontario, he was stationed in Casselman where he remains. He is now a sergeant at that detachment.

[5] The wife attended the University of Ottawa from September 1995 to 2001 when she graduated with both an Arts degree and a Nursing degree. During that period of time she also worked part-time at various fast food outlets, and one summer at a golf course. On April 4, 2002 she gave birth to Kaitlin. Between 2001 and 2003 she worked as a nurse at different hospitals. In September 2002 she returned to school full-time. She enrolled in the Bachelor of Laws degree at the University of Kingston. She graduated in 2005 and after completing the Bar admission course she was called to the Bar in June 2007. She has been practicing law since then.

[6] The marriage started to unravelled and the parties separated for several months in 2010. They resumed cohabitation after approximately 6 months until their final separation on August 14, 2014. They shared equal custody of Kaitlin for a few months but since November, 2014 Kaitlin has been living with her father. Kaitlin and the respondent do not enjoy a very good relationship at the present time.

Proceedings before trial

[7] The application was initiated in February, 2015. Mrs. Noël retained the services of Judy L. Antymnick to file her answer to the application. On February 26th, 2015 Justice Kane made a temporary without prejudice order, ordering the respondent mother to pay child support in the amount of $1,500 per month commencing March 1, 2015. Justice Kane fixed the amount of the child support based on the guideline amount of $2,040 less the monthly sums paid by the respondent for the vehicle in the possession of the applicant ($430) and the cell phone of Kaitlin (app. $110). This order was increased to $1930 at the settlement conference effective March 1, 2015. As of that date Mrs. Noël would no longer be credited for the truck loan payment on account of child support.

[8] Two disclosure orders were made. The first by Justice Smith on March 26th, 2015 and the second by Justice Warkentin at the settlement conference. At the opening of trial on April 18th, 2016, the applicant moved for an adjournment of the trial on the ground that the respondent had failed to provide the ordered disclosure. The trial was adjourned for 3 days and the respondent was again ordered to make further disclosure. Although the respondent provided some disclosure, the disclosure was not complete when the trial resumed on April 21st.

Decision

[9] I will decide each issue on the basis of the relevant evidence, the applicable legal principles and the position of each party on the particular issue.

A – What is the respondent’s annual income for support purposes?

Relevant evidence

[10] The Respondent works as a personal injury lawyer with the firm of Quinn Thiele Mineault Grodzki (“Q.T.M.G.”), in Ottawa. The firm only represents plaintiffs who have suffered personal injury in motor vehicle accidents or other tortious circumstances.

[11] The contract between the respondent and the law firm provides that the firm will provide an office, a secretary, all the required equipment, books and office supplies required in the normal course of the practice of law and will pay for insurance and the membership fees to the Law Society of Upper Canada. The respondent and the law firm will split evenly the net legal collected fees generated by the respondent’s work on a given file. Most if not all client retainers are on a contingency fee basis. The respondent is paid a monthly draw of $8000 each month. The amount paid as draws are periodically adjusted during any given fiscal year with the total amount of fees generated by the respondent for that particular period.

[12] The respondent is particularly well trained to excel in her personal injury practice given her nursing degree, her nursing experience, the contacts she made in the medical community and her 2 years of law practice working for the nurses’ defence association.

[13] There is no issue that the respondent declared the following net and gross income for income tax purposes in the 3 years preceding the application:

year	gross	net
2012	168,593	120,053
2013	480,981	417,779
2014	351,432	280,416

[14] In order to calculate her net income the respondent deducted “business expenses” she declared having incurred during the relevant year. The expenses for each year are listed in Appendix to her income tax return. She claimed the following business expenses:

**For 2012:** Advertising $3176.22 Meals and entertainment 2094.01 Bad debts 3351.15 Insurance 1707.27 Business tax, fees, licences, dues, membership and subscriptions 2821.00 Office expenses 3112.88 Legal, accounting, and other professional fees 11566.16 Travel (incl. transportation fees, accommodations And allowance part of meals 2411.11 Telephone utilities 1442.13 Motor vehicle expenses (not incl. CCA) 7731.17 Capital Cost allowance (CCA) (from Area A) 6779.56 Business use of home expenses 2347.48

$48,540.14

**For 2013:** Advertising $1244.88 Meals and entertainment 3667.94 Insurance 3800.31 Interest 2281.49 Business tax, fees, licences, dues, membership and subscriptions 2743.45 Office expenses 3278.71 Legal, accounting, and other professional fees 3708.65 Travel (incl. transportation fees, accommodations and allowance part of meals 7037.09 Telephone utilities 2935.34 Motor vehicle expenses (not incl. CCA) 12903.95 Capital Cost allowance (CCA) (from Area A) 9372.75 Business use of home expenses 10227.92

$63,202.48

**For 2014:** Advertising $5896.61 Meals and entertainment 3820.04 Insurance 4571.44 Interest 1541.31 Business tax, fees, licences, dues, membership and subscriptions 8831.65 Office expenses 5800.12 Legal, accounting, and other professional fees 3568.05 Travel (incl. transportation fees, accommodations And allowance part of meals 2432.09 Telephone utilities 4154.91 Motor vehicle expenses (not incl. CCA) 15730.13 Capital Cost allowance (CCA) (from Area A) 2037.39 Business use of home expenses 4632.13 Sub-contracts 5000.00 Donation 3000.00

$71,015.87

[15] The respondent could not provide her 2015 income tax return. She testified that she brought all her documents to her accountant but she did not expect receiving her completed income tax return before several months. She indicated that 2015 was not a good year for her. She was stressed by the separation, the death of her father, the illness of her lover and she had an accident.

[16] When the trial resumed on March 21, 2016, she filed a letter from Q.T.M.G. outlining the payments issued to her in 2015 totalling $187,780.

[17] During her testimony, the respondent was unable to provide any details about the exact nature of the business expenses she had claimed in her income tax return. She did not file any documentation in support of any of the various expenses.

[18] The respondent testified that her income is bound to fluctuate from year to year depending on the number of files she handles, and the success and the size of the personal injury claim. She indicates that in 2013 her income was particularly high because she inherited a number of files from lawyers who left the firm. She also indicated that things are now looking good and she expects to have a better year in 2016.

[19] The evidence indicates that the respondent maintains a high standard of living. In 2014 and 2015 she took 6 trips abroad and also attended a C.B.A. conference in Calgary. On October 15, 2015 she purchased a $583,900 house. She indicated her father lent her $120,000 to purchase the house. She only provided the documents from the solicitor acting for her on the purchase, when the trial resumed on April 21st, 2016. Although ordered to obtain and provide a copy of her mortgage application to the Bank, she indicated the bank would not provide her with a copy of her application.

The Applicant’s position

[20] The applicant submits the net income of the respondent should be increased by adding-back in totality or in part many of the business expenses claimed by the respondent. The applicant submits adding back the following expenses for the following reasons:

“2012 - Net income of $150,355 instead of $120,053. Advertising - $1,588.11 (50% added back-possible website expenses no other evidence) Meals + Entertainment - $1047 (add back 50%) Insurance - $3,351.15 (LawPro paid by firm – no other proof provided) Business tax, fees, licenses, dues - $2,222 (LSUC fees paid by firm, no proof of other exp.) Office Expenses - $1,556.44 (No evidence of any reasonable expenses) Accounting and Professional Fees- $7,566.16 (no evidence as to spike in these expenses, only $4,000 allowed as per usual expenses) Vehicle Expenses- $3,865.58 (50% add-back as personal vehicle use) Capital Cost Allowance - $6,779.56 (100% add-back) Office – Use of Home - $2,347.48 (not a required or reasonable expense given that firm supplies office)

2013- Net income of $462,018 instead of $417,779 Meals + Entertainment - $1,833.97 (add back 50%) Insurance - $3,800.31 (LawPro paid by firm – no other proof provided) Business tax, fees, licenses, dues - $2,200 (LSUC fees paid by firm, no proof of other exp.) Office Expenses - $1,639.36 (No evidence of any reasonable expenses) Supplies - $3,708.65 (no evidence of any reasonable expenses) Telephone and Utilities - $1,467.67 (50% added back for Kaitlin’s cell phone and home internet) Travel - $3,518.54 (attends two conferences in Toronto, no other proof of expenses) Vehicle Expenses- $6,451.98 (50% add-back as personal vehicle use) Capital Cost Allowance - $9,372.75 (100% add-back) Office – Use of Home - $10,227.92 (not reasonable given that firm supplies office and deducting cost of pool not reasonable).

2014 - Net Income of $314,316 instead of $280,416 Advertising - $3,896.61 (no proof) Meals + Entertainment - $1,910.02 (add back 50%) Insurance - $3,500.00 (LawPro paid by firm Business tax, fees, licenses, dues - $4,415.82 (LSUC fees paid by firm, no proof of other exp.) Office Expenses - $2,900.06 (Furniture purchased but otherwise no proof) Telephone and Utilities - $2,742.24 (two-thirds added back for Kaitlin’s cell phone and home internet) Vehicle Expenses- $7,865.06 (50% add-back as personal vehicle use) Capital Cost Allowance - $2,037.39 (100% add-back) Office – Use of Home - $4,632.13 (not reasonable given that firm supplies office.)”

[21] The applicant further submits that there is no reliable evidence which would allow the court to determine the respondent’s actual income in 2015. Given the respondent’s exceedingly poor compliance with production orders coupled with last minute disclosure of very relevant information, the Court should not determine her income for 2015 simply on an unsworn, uncertified letter from one partner of her firm.

[22] The applicant therefore submits that the annual income of the respondent should be determined to be the average of the adjusted net income for the last 3 years before the separation namely $308,896. Alternatively it could be fixed at the adjusted net income for 2014, namely $314,316.

The Respondent’s position

[23] First of all the respondent concedes that some of the expenses she has claimed as business expenses have not been properly proved. She submits that an amount of 30-40% of the total expenses should be added back to her net income as declared in her income tax statement.

[24] The respondent submits that the court should fix her gross annual income for support purposes on the basis of the payments that she has received from Q.T.M.G. during 2015, namely $187,780. Nothing was said about reducing that amount for business expenses and there is no evidence before the court as to what those expenses were, if any, in 2015.

The applicable legal principles

[25] The first applicable principle is found in section 16 of the Federal Child Support Guidelines.

The income is to be determined on the basis of the amount set out as “total income” in the party’s income tax return.

[26] Section 17 of the Guidelines allows the court to determine the annual income otherwise than provided by section 16, if the court finds it would not be the fairest determination of the income having regard to the pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[27] Finally, section 19 of the Guidelines allows the court to impute income in circumstances where:

• the spouse has failed to provide income information when under a legal obligation to do so;
• the spouse unreasonably deducts expenses from income;
• the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

Analysis

[28] The applicant asks the court to impute income over and above the amount of annual income declared at the line “total income” of the respondent on the basis that the business expenses claimed by the respondent are unreasonably deducted.

[29] Before the court considers imputing income, the party seeking imputation has to provide an evidentiary basis for the imputation of income. Once such a basis has been provided, the onus shifts to the party claiming the deduction to adequately explain the expense with documentary proof to satisfy the court that the expense was reasonable.

[30] I find that the applicant has provided the required evidentiary basis to allow the Court to impute income. The evidence is clear that the respondent has wilfully and repeatedly failed to disclose all information relating to those expenses. The respondent only filed with her answer partial income tax returns that did not include the business expenses schedule. The respondent has admitted under cross-examination that she could not explain most if not all of the expenses claimed. Many of the expenses claimed are covered by the law firm.

[31] The respondent has suggested, without providing any basis that the court simply add back 30% to 40% of the expenses claimed each year to the net income declared. The respondent submission is not based on any reliable evidence but only a bare statement of opinion.

[32] I am of the view that the submissions of the applicant concerning the amount of expenses to be added to the net income for years 2012, 2013 and 2014 are fair and reasonable and supported by the evidence. The applicant has allowed 38%, 31% and 52% for 2012, 2013 and 2014 respectively and provided valid reasons to limit the expenses accordingly.

[33] I therefore find that the respondent’s annual income for those 3 years is as follows:

Year	Income
2012	$150,355
2013	$462,018
2014	$314,316

[34] I am of the view that the gross income of the respondent for 2015 is sufficiently established by the letter from Q.T.M.G. This is the only evidence I have and the reduction in salary is consistent with the fluctuations which may occur in this type of practice. Her income is bound to fluctuate and the applicant concedes this fact. The difficulties in the respondent’s personal life also provide at least, in part, an explanation for a lower income year in 2015. The total set out in the letter is $187,700 which I reduce to $151,000 to account for some business expenses. I have averaged the allowable business expenses based on the amounts allowed in 2012, 2013 and 2014.

[35] I am of the view that the fluctuation in income requires that the income be averaged to attain the fairest determination for both parties. I therefore average the respondent’s annual net income for the last 4 years and fix it at $269,600.00 for the purpose of determining the support issues.

B – Is the applicant entitled to spousal support?

Relevant evidence

[36] The marriage lasted approximately 21 years. In the first 9 years of the marriage each spouse actively pursued their individual career. The husband was successful in obtaining a permanent position with the O.P.P and subsequently gradually rose in the police force. The wife studied hard and was successful in obtaining a position as a registered nurse in a major hospital.

[37] The parties had no children and encouraged and helped each other in reaching their goals.

[38] The parties pooled their financial resources. The husband was the one providing the bulk of the family income. However the wife also maintained part-time or summer jobs in order to help with the couples’ financial obligations.

[39] Shortly after moving to Casselman, the husband cashed his army pension. The parties bought a house. Their finances were stretched to the limit early in the marriage. The parties’ finances were tight until the time the respondent started to practice law with Q.T.M.G. In large part both parties agree that the financial difficulties stemmed from living above their means. They do not agree on who is mostly to blame for that fact.

[40] In 2001, when the respondent had a good nursing job at the Ottawa General Hospital she decided she did not like nursing and decided to go to law school. She gave birth to Kaitlin in April 2002 and started in law school in September 2002. As a result she only earned $21,635 as a nurse in 2001.

[41] After obtaining her LLB in 2005 the respondent started the Bar admission course but did not complete it. She worked as a nurse at CHEO on and off from 2006 to 2008. During that same period she returned to full time law studies to obtain her Master of Laws degree. She dropped out after a few months. She also completed the Bar admission course and was admitted to the Bar in June 2007.

[42] The parties’ gross income throughout the marriage is set out in exhibit 1.4.

[43] The debts of the couple slowly but surely increased. In 2011, the applicant cashed an RRSP to pay $16,248 of family debts. The mortgage on the matrimonial home had to be refinanced on several occasions.

[44] In later years, once the respondent started to earn a high income with Q.T.M.G. the standard of living of the couple substantially increased. The parties enjoyed many vacations in the south and bought two time shares. The landscaping of the matrimonial home was greatly improved and a pool was installed. This was done at great cost and came from the respondent’s sudden spike in income.

[45] In 2011, the applicant purchased back his army pension. This was financed with a $40,000 joint loan and a payroll deduction which is to continue until 2022 at $650.00 approximately per month.

[46] At the time of separation or shortly before, the respondent paid $35,000 on the mortgage of the home and she paid a consolidation loan that the parties had incurred earlier to consolidate their joint debts.

[47] The respondent managed to pay the direct fees associated with her studies. She used her part time work and was also helped by her father. The respondent has been paying the loan payment on the applicant’s truck. This is the amount of $430 deducted by Justice Kane on the temporary child support order. She was credited for the full value of the truck in the calculation of the equalization payment already agreed by the parties.

[48] There is a discrepancy between the parties relating to the time spent by each in doing household duties and child care. The applicant indicated that the respondent participated in child care to the extent that she was available. However he testified he provided much more in the nature of preparing meals, washing the clothes and so on. He also worked very hard when the new landscaping was installed.

The Applicant’s position

[49] The applicant is entitled to both compensatory and non-compensatory support.

[50] This is a long marriage where the parties pooled all their resources to reach financial and personal goals. They both worked hard to improve their personal situation and the couple’s situation. The husband worked hard and assumed a higher proportion of the child care and household responsibilities in order to allow the wife to study for 14 years and attain her goals. The respondent had just attained those goals when the respondent left the husband.

[51] During the difficult financial years the parties incurred debt and had a lower standard of living because of the respondent’s full time attendance in school. The parties had to re-mortgage the home.

[52] When the respondent started earning good money she recognized the fact that the parties had totally integrated their finances by fully paying some of the joint debts including reducing the mortgage debt.

[53] As a result of the marriage and the breakdown of the marriage the applicant has suffered economic disadvantage by both the marriage and its breakdown. During the marriage he accumulated debts and enjoyed a lower standard of living in order to permit the wife to study. As a result of the breakdown he has lost the higher standard of living acquired by the parties through their mutual efforts. On the other hand, the respondent has ample means to correct the economic disadvantage suffered by the applicant.

The Respondent’s position

[54] The applicant is not entitled to spousal support because he has not been economically disadvantaged by the marriage or its breakdown. The respondent has attained the possibility of a good income through her own efforts. She paid with her father’s help the direct costs of her education.

[55] At the time of the separation she paid many joint debts. She paid for the improvements to the home. She reduced the mortgage on the house. She left him the house and most personal assets. The applicant has therefore been largely compensated.

[56] If the respondent is left with a substantial debt resulting from his pension buy-back it was his decision taken against his wife’s wishes.

[57] The respondent submits that the applicant has the same standard of living he enjoyed before the separation. He earns a good income which has allowed him to buy the daughter a $2,000 treadmill and a $1,000 cell phone. He also has a substantial pension plan which the respondent does not have. She will have to save substantially to acquire an equivalent pension.

The applicable legal principles

[58] The jurisdiction of this court to make an order requiring a spouse to pay spousal support is contained in section 15.2 (1) of the Divorce Act. Subsections 15.2 (4) sets out the factors the court must take into consideration and subsection 15.2 (16) sets out the objectives such an order must achieve.

15.2 (4) Factors

(4) 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.

15.2(6) Objectives of spousal support order.

(6) 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.

[59] The Supreme Court of Canada has defined and interpreted the scope of s.15(2) in the two leading cases of Moge v. Moge [1992] S.C.R. 143 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420. The following principles can be gleaned from those decisions:

1. There are three conceptual bases to spousal support: compensatory, contractual and non-compensatory. Entitlement is often based on both a compensatory and non-compensatory basis.
2. The crucial question of entitlement on a compensatory basis is equitable sharing of the economic consequences of marriage and its breakdown. One spouse legitimate needs alone may be enough to establish entitlement on a non-compensatory basis.
3. There is no “magical cut-off dates’ for spousal support.

[60] The Ontario Court of Appeal’s decision in Fisher v. Fisher, 2008 ONCA 11, [2008], 88 O.R. (3rd) 241 also provide the following principles:

1. Review orders should be rarely, if ever, used. Rather the order should be of indefinite period and simply be subject to variation on the basis of a material change in circumstances.
2. In a proper case, the order may be for a fixed term. Even then it could be varied on the basis of a material change in circumstances.
3. The Court must consider the Spousal Support Advisory Guidelines (SSGA) in setting both the quantum and duration of support and, if this is the case, explain why the Guidelines are deemed not applicable in the particular case.

Analysis

[61] I have come to the conclusion that the applicant is entitled to spousal support on a compensatory basis and non-compensatory basis.

[62] The marriage has lasted 21 years and throughout the spouses have pooled all their resources. I find the parties intended full financial integration and interpretation of their affairs through their cohabitation. I find the husband assumed the bulk of the financial burden of the couple for over 10 years when the wife was acquiring the adequate training to a very lucrative professional legal practice. He was employed throughout and was a reasonable parent and at least equally shared with the wife child care and household responsibilities.

[63] When the wife was travelling daily to Kingston, I find that the husband assumed a larger portion of child care and general household responsibilities.

[64] The applicant accepted a lower standard of living and the accumulation of family debts which permitted the wife to reach her professional goals.

[65] The difficult economic consequences for him, a lower standard of living and the accumulation of debts, were in large part caused by the respondent’s decision to quit her nursing career and attend law school. He assumed the brunt of the financial child care and household care for those years in order to permit the respondent to reach her personal goal. The decision to proceed this way was a joint decision where both parties anticipated the family unit would be better off in the future. The breakdown has changed all of that and the applicant is left with an economic situation which is less than what the parties had jointly planned.

[66] Starting in 2010 the parties finally started seeing their standard of living improve. In the last 3 years before separation the substantial income of the wife which I find was made possible by their joint efforts, finally provided them with an excellent standard of living and real prospect of continuing to do so.

[67] As a result of the breakdown of the marriage, the husband has suffered an economic disadvantage. The respondent has seen his standard of living curtailed, many of his debts remain, particularly his obligation to repay the buy-back of his pension. His debts, his inability to cover all the costs of the large matrimonial home where the couple’s daughter resides with him account for his monthly budgetary deficit of approximately $3,000.00.

[68] I find also that the applicant has provided to the respondent a long term economic benefit for which he is entitled to be adequately and fairly compensated.

[69] The SSAG provide a range of spousal support of $2,000 to $4,000 per month for an indefinite period.

[70] In fixing this amount, I take into consideration the fact the applicant has not sacrificed a well-paying career in order to help the respondent attain her goals. The main purpose of the award is to ensure that Mr. Noël will be entitled to enjoy a reasonably comparable post-separation lifestyle to the marital standard. A monthly spousal support payment of $2,000 per month will be adequate to ensure that both spouses share equitably the economic consequences of marriage and its breakdown. The award will be indefinite subject to variation. Retirement will constitute a material change in circumstances. When child support is no longer payable, either party, should be entitled to call for a review of spousal support.

C – The retroactivity issue

Relevant evidence

[71] The parties separated on August 14, 2014. Kaitlin has been living with her father since November 2014. The application was started on February 14, 2015. The applicant submitted that the first payment was on March 1st, 2015. On February 26, 2015, an interim order was made fixing the child support at $2,040 per month based on an annual income of $255,000. The order reduced the payment to $1,500 to allow for the payment by the respondent of $430 for the truck loan and $110 for Kaitlin’s cell phone. The respondent paid these amounts throughout and including February 1st, 2016. At the settlement conference of February 5, 2016, the amount of $430 was said not to be credited starting on March 1st, 2016 as the loan was part of the calculation of the equalization payment.

[72] The respondent has not made any payments on account of spousal support.

[73] The annual income of the respondent has been determined to be $269,600. The table amount provided by the Child Support Guideline is $2,148.

The Applicant’s position

[74] The first child support order was made effective March 1st, 2015.

[75] Child support should be retroactive to the date of separation, August 14, 2014. It should be based on a shared custody basis until November 8, 2014 and then full table amount should be paid on the annual income found by the Court.

[76] The respondent should not get a credit for the $110 she paid for the cell phone as she is claiming it as special expenses. She should only get a credit for the truck loan until March 1st, 2016.

[77] In so far as spousal support, the applicant submits that payments should commence on February 1st, 2015.

[78] The applicant asks that the amount of arrears found to be owed by the respondent should reduce the amount of $173,000 owed by the applicant to equalize the parties’ net family property.

The Respondent’s position

[79] The respondent did not make any specific oral submissions relating to retroactivity.

Analysis

Child Support

[80] Child support should commence on November 1st, 2014 when the child moved in permanently with the father.

[81] I see no basis to add back the payments made by the respondent for the truck loan and the cell. The respondent should be credited for the full $1,930 until February 1st, 2016 inclusive. The endorsement of Warkentin J. in the Continuing Record confirms this. It would appear that as of March 1st, 2016, the full amount of $1,930 was payable and paid. In so far as the cell phone, I agree with the applicant that it is claimed as special expenses and should not be credited on child support.

[82] I therefore calculate the arrears of child support to be $13,800 as follows:

Owed from November 1st, 2014 to June 30th, 2016 20 months @ $2,148 per month = $42,960

Paid to date 12 x $1,930 = $23,160 4 x $1,500 = $6,000 Total Paid = $29,160

Arrears = $13,800

[83] If additional actual payments were made by Mrs. Noël the amount will have to be adjusted accordingly.

Spousal Support

[84] I am of the view that spousal support should commence February 1st, 2015. Mrs. Noël was served with the application on January 23rd, 2015.

[85] On the basis that the respondent should have paid spousal support of $2,000 per month, the arrears are therefore in the total amount of $32,000 (16 x $2,000) for the period of February 1st, 2015 and June 30th, 2016.

[86] This amount will be reduced by 33% to take into account tax consequences that usually flow on payment of spousal support. The net amount of spousal support arrears is $21,440.00.

[87] The total amount of arrears for child support and spousal support will be credited to the applicant in reduction of the amount he owes to equalize the parties’ net family property.

D – Special and Extraordinary expenses

[88] At the end of the trial this was no longer a contested issue.

[89] The applicant filed as exhibit 3 a list of special and extraordinary expenses he claims to have incurred on behalf of Kaitlin. They are mostly expenses related to Kaitlin competitive hockey activities plus an amount of $2,404.50 for dental expenses unpaid by the group health and dental insurance. The total is $10,065.11 and covers the period July 2014 to April 21, 2016.

[90] The respondent has filed as exhibit 4.1 a list of special expenses she claimed she incurred on behalf of Kaitlin. A number of those were clothing and a birthday gift. The respondent also included the monthly bills for Kaitlin’s cell phone for October to April. The rest of the expenses were incurred for hockey related activity and cell phone totalling $5,023.63.

[91] The applicant takes the position that the clothing expenses and the birthday gift do not come under the definition of special or extraordinary expenses. The applicant is prepared to accept the expenses related to the hockey activities and the cell phone.

[92] During submissions, counsel for the respondent indicated that the respondent agreed with the applicant’s position on this issue.

[93] The court finds that the parties should share the expenses proportionately to their income. The applicant is entitled to be reimbursed 60.5% of the $10,065.00 ($6,089.32) he incurred and the respondent 39.5% of the $5,023.63 she incurred ($1,984.33).

[94] I invite counsel to provide me with a draft order in accordance with these reasons.

[95] If need be, I will entertain brief written submissions on costs within 20 days.

The Honourable Justice M.Z. Charbonneau Released: June 21, 2016