Court File and Parties

COURT FILE NO.: 02-FL-2858-1 DATE: 2016/09/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Larry Branson, Applicant AND Pamela Branson, Respondent

BEFORE: Justice L. Sheard

COUNSEL: Sean Jones, for the Applicant Meredith Holmes, for the Respondent

HEARD: July 5, 2016

The text of the original endorsement was corrected on September 12, 2016 and the description of the correction is appended

AMENDED ENDORSEMENT

[1] This is a Motion to Change brought by the respondent, Pamela Branson (“Mrs. Branson”). The motion was first brought in 2009. In the years that followed, the motion was administratively dismissed and Mrs. Branson missed other required timelines. The applicant, responding party on the motion (“Mr. Branson”), has accommodated Mrs. Branson by consenting to orders restoring the motion and extending timelines.

History of Motion and Nature of the Relief Sought

[2] Likely as a result of the delays and age of the motion, the original file was in storage and not before me on the motion. At the hearing, counsel for Mrs. Branson provided me with a copy of the original Motion to Change dated March 22, 2009. In it, Mrs. Branson sought an order “dealing with child support”, but provided no particulars with respect to the amount she was seeking in increased child support or the annual income of Mr. Branson. Mrs. Branson also sought an order that spousal support be changed from the amount ordered by Justice Forget dated March 22, 2005 (the “Forget Order”) to an amount “TBD”. This part of the Notice of Motion was similarly lacking in any details with respect to Mr. Branson’s income.

[3] Mrs. Branson served a new Notice of Motion dated April 8, 2016. The main relief sought is an order fixing outstanding spousal support arrears at $74,088 as of December 31, 2014; an order that Mr. Branson pay ongoing spousal support in an amount to be determined effective January 1, 2015; and an order discharging the mortgage registered against the former matrimonial home at 5516 Kelly Lane, Manotick, Ontario (“the Matrimonial Home”).

[4] At the outset of the hearing, counsel for Mrs. Branson indicated that her client also contemplated bringing a separate motion to seek a retroactive increase in child support. The April 8, 2016 Notice of Motion said nothing about child support. The parties’ children are now adults. Child support was not addressed in Mrs. Branson's current motion materials.

[5] Counsel for Mr. Branson was not prepared to proceed with today’s motion if the issue of retroactive child support was to be determined at a separate hearing. Counsel for Mr. Branson argued that child support and spousal support could not be determined separately and that if Mrs. Branson was intending to seek a retroactive increase in child support, an adjournment would be required so that the matters could be adjudicated upon together.

[6] Following the morning break, counsel for Mrs. Branson advised the Court that her client was abandoning any claim to a retroactive increase in child support. Further, the parties agreed that Mrs. Branson’s Motion to Change should lead to a final order on three issues:

(1) Is the respondent entitled to a discharge of the mortgage registered against her home that secured the equalization payment she owed to the applicant? (2) Is the respondent entitled to a retroactive increase in spousal support, retroactive to 2008? and (3) Should spousal support be changed now or terminated?

[7] Counsel had provided lengthy affidavit material and a facta.

Overview

[8] The parties began cohabiting around Christmas 1982 and were married on June 18, 1983. They had three children born in 1984, 1990 and 1994. They separated in June 2002. Mrs. Branson was born on March 21, 1957. She is 59 years old. Mr. Branson was born on November 30, 1954 and is 61 years old. They were 45 and 47 years old at the time of separation.

[9] The parties resolved all issues arising upon marital breakdown by way of Minutes of Settlement which were incorporated into the Forget Order. At that time, the parties’ three children were living with the respondent. It was agreed that Mr. Branson would pay child support for the two younger children. The eldest no longer qualified as a child of the marriage. Mr. Branson was also to pay spousal support based on Mrs. Branson’s income of $9,979.00 and Mr. Branson’s income of approximately $91,143.00. That income included his salary, which I will call his “T-4” income, of $84,143.00 and $7,000.00 attributed for his use of a company vehicle.

[10] Mrs. Branson was to keep the matrimonial home, which resulted in her owing a $20,000.00 equalization payment to Mr. Branson. That payment was to be satisfied by way of monthly payments of $200.00, secured by way of a mortgage registered against the Matrimonial Home.

[11] At various times since separation, the children have lived with each of their parents. The parties have adjusted child support accordingly. In the Forget Order spousal support was fixed at $1,700 per month. It has not been varied or adjusted since.

[12] Case and settlement conferences have taken place in the years following Mrs. Branson’s 2009 motion to vary, but no interim orders were made varying either spousal support or child support. Also, no orders were made requiring either party to provide financial disclosure or, in the case of Mrs. Branson, requiring her to comply with the Forget Order to disclose her efforts to become self-supporting.

[13] Today is the first time Mrs. Branson’s Motion to Change has been put before the Court for adjudication. The parties agreed that this shall be a final order.

Issue One: Is Mrs. Branson Entitled to a Discharge of the Mortgage?

[14] Mrs. Branson seeks an order discharging the mortgage registered against the Matrimonial Home. The mortgage had been ordered by Justice Forget to secure Mrs. Branson’s $20,000 equalization payment to Mr. Branson. Mrs. Branson was unable to provide an accounting of payments she has made to satisfy the equalization payment. In argument, her counsel argued that, had payments been made at the rate of $200.00 per month as per the terms of the Forget Order, the equalization payment would have been satisfied in 2015.

[15] In his responding materials, Mr. Branson stated that there is $856.00 still owing on the mortgage. As an alternative to her position that the mortgage has been paid off, Mrs. Branson asked this Court to find that there was a balance owing on the mortgage of $856.00 and that upon payment to Mr. Branson of that amount, she would be entitled to a discharge.

Decision

[16] Based on the evidence before me with respect to the amount still owing on the mortgage, I find the sum of $856.00 is owed by Mrs. Branson to Mr. Branson in respect of the equalization payment. Upon payment of that amount to Mr. Branson, the equalization payment shall have been paid in full and Mrs. Branson shall be entitled to ask Mr. Branson to sign a discharge of the mortgage, registered as Instrument No. 772583 dated March 22, 2005. Mrs. Branson is not entitled to demand that Mr. Branson prepare or register the discharge and I do not grant that relief.

Issue Two: Is Mrs. Branson Entitled to Increased Spousal Support Retroactive to January 1, 2008?

[17] At the opening of argument, counsel for Mrs. Branson confirmed that her client seeks an increase in the spousal support from that set out in the Forget Order, retroactive to January 1, 2008.

[18] The Forget Order was based upon Minutes of Settlement entered into between the parties. Both were represented by counsel.

[19] The Forget Order also provided for child support for the two younger children, Kyle Alexander Branson (born July 25, 1990) and Reid Lawrence Branson (born May 25, 1994), then living with Mrs. Branson. No support was ordered for the eldest child, 18, Evan William Branson (born April 23, 1984). He was then living with Mrs. Branson but was not in school and not entitled to support.

[20] The parties agree that the children have had drug abuse problems and other challenges. In the years following the Forget Order the children have lived with each of their parents. Although they are adults, Kyle now lives with Mrs. Branson and Reid lives with Mr. Branson. I accept that their children's challenges have been difficult for both parents.

[21] Based on the affidavit of Mr. Branson, I understand that:

(a) Evan has not lived with Mrs. Branson since 2006 and that he lived with Mr. Branson in 2009 and in 2015; (b) Kyle lived with Mr. Branson from January 2008 until September 2015, except for a four-month period in 2011, when Kyle went to Calgary. In September 2015, Kyle returned to live with Mrs. Branson; and (c) Reid lived with Mrs. Branson from the date of separation until June 2013, except for a four or five-month period in 2012, when he moved in with Mr. Branson the applicant. In June 2013, Reid returned to live with Mr. Branson where he remains.

[22] The parties themselves adjusted the amount of child support paid by Mr. Branson to reflect the changes in residence of the children and, ultimately, to reflect the fact that the children were no longer children of the marriage or entitled to support.

Material Change in Circumstance

[23] Mrs. Branson asserts that she is entitled to a retroactive increase in spousal support based on the material change to the amount of income earned by Mr. Branson following the Forget Order. Specifically, she asserts that his income materially changed (increased) in 2008, three years after the Forget Order and six years after separation.

[24] At the hearing, Mrs. Branson accepted that Mr. Branson’s income available for spousal support purposes is as set out in the Collins Barrow report prepared in 2012 (Exhibit “C” to Mrs. Branson’s affidavit sworn April 8, 2016). The Collins Barrow report provides a summary of Mr. Branson’s income from 2007 to 2011, allocated between T-4 income and pre-tax corporate income as follows:

2007 T-4 $ 84,647 Corp. $ 7,700 Total: $ 92,347 2008 T-4 $ 85,566 Corp. $48,500 Total: $134,066 2009 T-4 $ 83,332 Corp. $ 9,000 Total: $ 92,343 2010 T-4 $ 81,000 Corp. $22,500 Total: $103,500 2011 T-4 $105,438 Corp. $29,200 Total: $133,876

[25] In her affidavit, Mrs. Branson states that shortly prior to separation Mr. Branson received a gift of money from his father. He used $150,000 of that gift to purchase a 50% interest in AssociateAir, the company in which he was employed as a mechanic. As an owner, Mr. Branson was entitled to receive dividend and rental income. As set out above, Mr. Branson’s T-4 income remains relatively unchanged from 2005 to 2010. His ownership interest in AssociateAir explains the increase in his income.

[26] Counsel for Mr. Branson noted that the ownership interest was purchased with an excluded asset (the gift), but conceded that there was no term in the gift that would also exclude any income earned from the gift. Notwithstanding, for the reasons below, I find that whether Mr. Branson’s corporate income comes as a result of a gift is relevant to Mrs. Branson’s entitlement to share in that (post-separation) income.

[27] Mrs. Branson accepts as accurate the income reported in Mr. Branson's notices of assessment for the following years:

2012 $120,774 2013 $148,868 2014 $138,797

[28] On his financial statement, Mr. Branson reports income in 2015 of $124,742, comprised of employment income of $100,659 and dividend (corporate) income of $24,173.

[29] Mrs. Branson’s employment/EI income from 2007 to 2016 is set out in her affidavit dated June 29, 2016 as follows:

2007 $ 9,891.63 2008 $11,195.83 2009 $12,822.00 2010 $23,927.00 2011 $10,811.93 + $7,331 = $18,142.93 2012 $ 3,774.55 + $12,902 = $16,676.55 2013 $32,604.00 2014 $32,675.37 2015 $34,564.40 2016 $40,955.06

[30] There appears to have been a material change in the circumstances of both parties by reason of the increases in their respective incomes and by reason of their children reaching adulthood.

[31] Mr. Branson’s income has increased from approximately $91,000 in 2005 to $124,742 in 2016 (as set out in his financial statement sworn June 24, 2016), an increase of approximately 37%.

[32] Mrs. Branson’s income has increased over four-fold from $9,979 in 2005 to $40,955 in 2016. While she is working two part-time jobs, it is with the same school board and she acknowledges that she is working a total of a full-time job. Mrs. Branson expects and believes that she has some job security.

[33] Mrs. Branson has achieved this significant improvement in her ability to provide for her own support by returning to school and then obtaining related employment. She did so following the end of a 20-year marriage in which Mr. Branson had been the main income-earner, and while also coping with the challenges of the couple’s three children.

[34] Counsel for Mr. Branson argues that a material change in circumstance requires a change in income of between 15% and 20%. On that basis, the incomes of both parties would qualify as a material change.

[35] Mr. Branson also argues that the Forget Order contemplated that spousal support would be reviewed based on a change in Mrs. Branson’s income. The basis for that argument may be found at the following paragraphs of the Forget Order:

19. Spousal support shall be reviewed, after March 1, 2008, to ascertain what efforts the respondent has made to earn higher income.
20. In case of a material change in the circumstances of either party, either party may bring an application for variation in accordance with the Divorce Act. Without limiting the generality of the foregoing, the respondent mother’s remarriage or cohabitation of three years will be considered to be material changes in circumstances.
21. The respondent mother shall provide to the father, on a semi-annual basis, documentation/information of her efforts to become self-supporting including but not limited to copies of all jobs she has applied for, copies of all responses received. The first such disclosure to take place on or before September 30th, 2005. Further, the mother shall inform the father forthwith of any changes in her employment situation and her salary.

[36] However, the Forget Order also states:

22. Spousal support shall cease upon the happening of the earlier of: (a) the respondent dies; (b) the applicant dies, provided the policies of life insurance referred to herein below in paragraphs 23 and 24 are in place; or (c) there is a variation in which orders that spousal support ceases.

Has there been a Material Change?

[37] A “material change” means a change, such that, if known at the time, would likely have resulted in different terms in the order. If the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proof lies on the applicant and the standard of proof is on the balance of probabilities (Willick v. Willick, [1994] 3 S.C.R. 670).

[38] Mrs. Branson argues that the material change in this case is the unexpected increase in Mr. Branson’s income.

[39] As set out above, I have concluded that there has been a significant increase in the incomes of both parties. The Forget Order was made pursuant to Minutes of Settlement. I accept that, in hindsight, had the respondent known by how much Mr. Branson’s income was going to increase following the Forget Order, or how long it would take Mrs. Branson to become self-sufficient, she might have tried to negotiate a different settlement. However, Mr. Branson’s purchase of an ownership interest in AssociatedAir was known at the time of the Forget Order: the affidavit material before me suggests that Mr. Branson’s ownership interest in AssociatedAir was taken into account in calculating the equalization of the parties’ net family property. Further, while the exact amount of the future dividend/rental income may not have been known at the time of the Forget Order, that potential source of income was known at the time of the Forget Order. For that reason, I would find that the increase in Mr. Branson’s income that is derived from his ownership interest alone, would not meet the test of a material change in circumstances.

Forget Order: Review Contemplated

[40] The Forget Order contemplates a review of spousal support after March 1, 2008 to ascertain what efforts Mrs. Branson has made to earn higher income. That review does not require a material change in circumstances. By the terms of the Forget Order, it is reasonable to conclude that the parties did agree and expect that Mrs. Branson would make efforts to become self-supporting and that her increase in income would entitle a review of the spousal support payable by Mr. Branson. No review on that basis was sought.

[41] The Forget Order also refers to a variation in the event of a material change in circumstances. Without limiting what else might constitute a material change in circumstances, the Forget Order states that Mrs. Branson’s remarriage or cohabitation status of three years would be material changes.

[42] By its terms, I conclude that the change in the incomes and circumstances of both parties entitled either party to bring a motion to review and/or vary the Forget Order.

Is the Respondent Entitled to Share in the Increase in the Applicant’s Post-Separation Income?

[43] At the hearing, Mrs. Branson based her entitlement to share in the post-separation income on her assertion that she has and continues to care for one or more of her adult children who are not independent because of their struggles with drug abuse and behavioural problems.

[44] In his affidavit, Mr. Branson sets out the periods of time during which the children lived with him. He also currently provides a home for one of his adult children. Mr. Branson documented the money that he has spent toward the education, support, and legal difficulties of his three children. Those payments were over and above the amounts that he paid for child support. He tracked those payments for the four-year period between 2009 and 2012 and calculated that he had spent an additional $43,374 on his children, who were independent adults for the majority of that time.

[45] Mr. Branson challenged the assertion by Mrs. Branson that she was been hampered in her ability to become self-supporting because of the help that she has given to the couple’s adult children. Mrs. Branson has not quantified her financial contribution. At paragraph 55 of his affidavit sworn June 24, 2016, Mr. Branson states: “If Pamela [Mrs. Branson] is helping the children then I am certainly not aware of it.”

[46] The Court is sympathetic to both parties. Each appears to have tried to help their children through very challenging events, and each continues to offer a home to an adult child. Despite those challenges, Mrs. Branson has been able to re-educate herself and to obtain secure and gainful employment. While she earns much less than Mr. Branson, her financial statement shows that she has not fallen into debt and appears to have become self-sufficient. I cannot conclude that her responsibilities to her adult children hampered or prevented her from becoming self-sufficient.

Analysis

[47] It is up to the discretion of the Court to determine whether and when to award a recipient spouse a share in a payor spouse’s post-separation increase in income. It is not an automatic entitlement but may be based upon a finding of a compensatory entitlement to spousal support. For example, entitlement to share may follow if the recipient spouse can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success.

[48] In this case, the evidence leads me to conclude that Mr. Branson’s increase in post-separation income was attributable to the financial gift from his father. It was that gift that allowed him to purchase an ownership interest in his employer corporation.

[49] Mrs. Branson asserts that it is significant that he invested in his employer corporation and not in some other business. She argues that she assisted Mr. Branson in becoming a successful mechanic, and should therefore share in the success of the business.

[50] On this motion there is no evidence before me upon which I could determine what contributions were made by Mrs. Branson to Mr. Branson’s success as a mechanic. Even if I were to assume that Mrs. Branson contributed, directly or indirectly, to Mr. Branson’s successful career as a mechanic, I would find that Mrs. Branson has already shared in the income attributable to that success: it is that income upon which the spousal support was based in 2005.

[51] The change in Mr. Branson’s income in 2008 came from being an owner of the business and not from his employment as a mechanic. The evidence before me is that the ownership interest was funded entirely from the gift from Mr. Branson’s father. There is no evidence that anything Mrs. Branson did during the marriage contributed to the creation of that income. Also, the evidence is that throughout the marriage, the money contributed by Mr. Branson to support his family came solely from his T-4 income.

[52] Mr. Branson’s T-4 income has increased since 2005 but the increase is not significant until 2011, nine years post-separation, when it increased to over $100,000. By 2011 Mrs. Branson’s income had also increased. It had doubled since 2005, and must also be considered in determining if any change in the spousal support would be justified.

Decision

[53] I conclude that the facts in this case do not warrant the exercise of my discretion to award Mrs. Branson a share in the applicant’s post-separation income (Thompson v. Thompson, 2013 ONSC 5500; Hersey v. Hersey, 2015 ONSC 7602).

Impact of Delay in Pursuing the Motion to Change

[54] Having found that Mrs. Branson is not entitled to share in Mr. Branson’s post-separation income, it may not be necessary for me to address the issue of delay. However, I do so anyway, as the delay, alone, could have been the basis to deny the relief sought by Mrs. Branson.

[55] Mrs. Branson seeks to blame Mr. Branson for some of the delay in proceeding with her Motion to Change. She asserts that he failed to comply with the provisions of the Forget Order and was not forthcoming with disclosing his corporate income. Mr. Branson responds that, in her own affidavit, Mrs. Branson admits that she had received full disclosure from him by 2010. This admission is found at paragraph 18(k) of Mrs. Branson’s affidavit sworn June 29, 2016.

[56] Mr. Branson points out that a case conference and a settlement conference were held and that no disclosure or production order was made at either, or at any other time. Mr. Branson points out that Mrs. Branson has been represented by counsel throughout and that, had it been needed, an order could have been sought.

[57] I conclude that Mr. Branson is not to blame for Mrs. Branson’s delay in proceeding with her Motion to Change.

[58] Mrs. Branson also points to the heart attack suffered by her lawyer in 2011 as a reason for the delay. She relies upon the affidavit of her former lawyer’s legal assistant, Jennifer Mirsky, sworn July 12, 2012, sworn in support of Mrs. Branson’s motion to set aside the order dismissing her Application. In her affidavit, Ms. Mirsky explains that the need to “change the child-support and the spousal support” arose “because of the different custody arrangements and the different incomes of the parties from when the Minutes of Settlement were signed.” She also blames the non-disclosure by Mr. Branson but acknowledges that the Motion to Change was adjourned on consent (paragraph 9) in anticipation that a Settlement Conference would be scheduled by January 2011. That did not take place and “inadvertently” Mrs. Branson’s action was dismissed.

[59] Mr. Branson consented to set aside the dismissal order as it was agreed that a Settlement Conference date would be obtained. To address the issue of his income, Mr. Branson retained his own accountant to do an analysis of his income. That analysis is the Collins Barrow report, upon which Mrs. Branson relies.

[60] Counsel for Mr. Branson disputes the assertion that financial disclosure had not been provided by his client and points to Mrs. Branson’s admission that financial disclosure had been made by 2010. He also points out that there was a case conference in 2013 at which time an Order was made to allow the parties to conduct questioning and to bring a motion. Mrs. Branson did neither.

[61] In her submissions, counsel for Mrs. Branson acknowledges that her client is responsible for the delay between January 2013 and April 2016 in pursuing the Motion to Change.

[62] I conclude that Mrs. Branson and/or her previous counsel are responsible for the delay in moving forward with the Motion to Change. Mr. Branson had at least twice consented to orders to put the proceeding back on the rails.

Factors for an Award of Retroactive Support

[63] The factors governing whether or not to award retroactive support can be found in the Ontario Court of Appeal decision in Bremer v. Bremer, 2005 CarswellOnt 601. At paragraph 9:

The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay; ii) the underlying basis for the ongoing support application; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued: see Horner v. Horner, [2004] O.J. No. 4268 (Ont. C.A.); Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (Ont. C.A.) and Price v. Price, [2002] O.J. No. 2386 (Ont. C.A.)

[64] There is no evidence to establish that Mrs. Branson had past need. In fact, the financial statements indicate that, today, Mrs. Branson’s net worth exceeds that of Mr. Branson by over $100,000. A comparison of Mrs. Branson’s April 14, 2009 financial statement to the one sworn on January 31, 2016 shows an increase in her net worth of $58,620. Her net worth as at January 31, 2016 was $241,991.91. The increase can be found, in part, by the increase in her RRSP from $43,000 in 2009 to over $80,000 in 2016 together with an additional $3,147 invested in a TFSA. Further, Mrs. Branson shows that between 2009 and 2016 the value of the Matrimonial Home increased by over $112,000. Included in her 2016 debts is a car loan of $29,000 for the purchase of a 2016 vehicle.

[65] Mrs. Branson has not established a need for increased support. In fact, she has been successful in achieving steady and reliable employment and is arguably self-sufficient.

[66] As set out above, Mrs. Branson has been receiving support based on Mr. Branson’s T-4 income. The retroactive increase in support is being sought on the basis of the corporate income, to which I have already decided that she is not entitled.

[67] In his Financial Statement sworn June 24, 2016, Mr. Branson shows a net worth of $135,644, which includes a house valued at $325,000 and $45,000 in RRSP’s. The relative financial position of the parties does not support a finding that there is a reason to award a retroactive increase in spousal support.

[68] Mrs. Branson calculates the amount to which she claims to be entitled by way of a retroactive increase in spousal support at approximately $74,000. Based on the financial information before me, there is little doubt that an award of retroactive support in that amount would create an undue burden upon Mr. Branson, another of the factors identified in Bremer.

[69] I have considered Mrs. Branson’s allegations of non-disclosure, which she argued constituted “blameworthy” behaviour. For the reasons set out above, I do not accept that argument.

[70] The other factors set out in Bremer, including in particular, the respondent’s unexplained and unjustified seven-year delay in pursuing her motion, further mitigate against ordering a retroactive increase in support.

Decision

[71] For the reasons set out above, I conclude that the factors set out in Bremer, including her delay in pursuing a claim for increased spousal support, would also lead the Court to deny the relief sought by Mrs. Branson.

[72] Except with respect to my order regarding the amount to be paid by Mrs. Branson to Mr. Branson for there to be a discharge of the mortgage on the Matrimonial Home, Mrs. Branson’s motion is dismissed.

Orders Requested by Mr. Branson

[73] In his Factum, Mr. Branson seeks an order fixing the outstanding balance of the mortgage as at June 30, 2016. I have addressed that above.

[74] Mr. Branson also seeks an order declaring that his arrears of spousal support to be nil effective July 1, 2016. I understand that he is asking for that declaration in response to Mrs. Branson’s request for an order that he owes $74,000 in arrears. I understand that Mrs. Branson had claimed that “arrears” were owing, based on her claim for a retroactive increase in support. I do not understand Mrs. Branson to be claiming that Mr. Branson has been in default of the support obligations as per the Forget Order. As I have dismissed Mrs. Branson’s motion for retroactive support, I do not believe that a declaration of no arrears is needed. If I have misunderstood the parties, then I would invite them to arrange to appear again before me to argue this issue.

[75] In his Factum, Mr. Branson also seeks an order terminating his spousal support obligations effective either July 31 or August 1, 2016. He has not brought a motion to change. At the conclusion of argument, counsel acknowledged that Mr. Branson could bring his own motion to change but that he need not do so because Mrs. Branson’s Motion to Change allows this Court to determine to the proper amount of spousal support to be paid as of this date. Although it was mentioned under the heading “relief sought” in his Factum, Mr. Branson did not vigorously argue that support should it be terminated.

Decision

[76] Without prejudice to Mr. Branson’s right to bring his own motion to change, I decline today to make any determination of whether to vary spousal support downward from that set out in the Forget Order. My Order is not to be seen or treated as any bar to Mr. Branson bringing his own motion to change: terminating spousal support was not the focus of the evidence or argument before me on Mrs. Branson’s Motion to Change. It is also hoped that my Reasons herein may offer the parties some guidance on how to resolve the issue of whether and when to end the payment of spousal support.

Costs

[77] Mr. Branson was successful on this motion and he is entitled to costs.

[78] If the parties cannot agree on costs, they may serve and file written costs submissions within 30 days of the date of the release of these Reasons. The submissions are not to exceed three double-spaced typed pages together with a Bill of Costs. As discussed at the hearing, on the basis that the computer printout (pre-bill) contains sufficient detail of time spent, hourly rate, and services rendered, I am content to accept that in lieu of a formal Bill of Costs. I do ask that the parties identify whether costs have been reserved by the Court at any step of the proceedings and what time might be covered by that order. The file before me did not contain an endorsement record or volume one of the continuing record, both of which, I assume, are in storage. If either party is of the view that I require that file in order to properly adjudicate the issue of costs, then they should take the required steps to have the file retrieved from storage and to advise the court office that I will require those additional materials.

Justice Liza Sheard Date: September 12, 2016

APPENDIX

COURT FILE NO.: 02-FL-2858-1 DATE: 2016/09/12 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Larry Branson, Applicant AND Pamela Branson, Respondent

BEFORE: Justice L. Sheard

COUNSEL: Sean Jones, for the Applicant Meredith Holmes, for the Respondent

ENDORSEMENT Sheard J. Released: September 12, 2016

September 12, 2016:

[66] As set out above, Mrs. Branson has been receiving support based on Mr. Branson’s T-4 income. The retroactive increase in support is being sought on the basis of the corporate income, to which I have already decided that she is not entitled.