Court File and Parties

COURT FILE NO.: D1041/13 DATE: 2016-09-09

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

P.S. Kirsten Hughes, for the Applicant Applicant

- and -

M.R. Andreus Snelius, for the Respondent Respondent

HEARD: February 23, 24, 25, 26, 29, March 1, 2, 2016

THE HONOURABLE MADAM JUSTICE M. J. MCLAREN

1A 6 ½ day trial in this matter took place in February and March 2016. Although there were several issues outstanding when the action commenced in 2013, there was only the issues of spousal support, and a determination of the Applicant’s income by the time the trial commenced.

2For convenience I will primarily refer to the Applicant as the wife and the Respondent as the husband.

Undisputed Facts

3The parties filed an Agreed Statement of Facts and the information contained therein was referred to during the trial.

4I will provide a brief summary of the relevant facts:

(a) the wife is P.S. and she was born on May 24th, 1970. She would presently be 46 years old; (b) the respondent is M.R. He was born on March 6, 1969 and would be 47 years old at present; (c) both parties reside in Dundas, Ontario which is part of Hamilton, Ontario; (d) the parties met during medical school at the University of Toronto. They entered into a “couples match program” when applying for residency positions; (e) the cohabitation dates are as follows: common law – 1996 married – August 5th, 2000 separated – October 1st, 2011 (with the applicant moving out of the home in March 2012) (f) the parties have three children as follows: K.R., (a daughter) born March 20th, 2001 who is now 15 years old; W.R., (a son) born September 11th, 2002 who is almost 14 years old; J.R., (a daughter) born March 15th, 2005, who is now 11 years old; (g) The wife is a family physician in Hamilton. She pays 30% of her gross earnings towards the administration of the medical practice where she works with other doctors. This represents her contribution to overhead expenses. Her income tax returns show the following net professional incomes:

2009 $147,165.00 2010 $136,123.00 2011 $149,132.00 2012 $152,151.00 2013 $154,750.00 2014 $161,200.00

She also received the following dividends:

2012 $75,000.00 2013 $143,500.00 2014 $67,724.94

(h) the husband worked as an interventionist cardiologist with Hamilton Health Sciences. His pay is paid into his medical professional corporation. Pursuant to his payment summaries, the amount of income paid to his corporation has been as follows:

2007 $835,552.00 2008 $1,041,722.30 2009 $623,536.15 2010 $1,056,446.99

His personal income tax returns show his total income as:

2007 $459,000.00 2008 $499,442.00 2009 $545,875.00 2010 $461,212.00 2011 $355,510.00 2012 $330,596.00 2013 $198,580.00

(i) the parties negotiated a parenting plan which provides for joint custody and an equal time sharing in November 2011 so there were no custody and access issues at trial; (j) the following child support was paid by the husband:

$4,650.00 in March 2010 $9,300.00 per month from April 2012 to June 2012 $8,064.00 per month commencing July 1st, 2012 $5,400.00 per month in January 2014 $7,590.00 in February 2014 $5,400.00 per month commencing March 2014 $1,008.00 per month commencing September 1st, 2014 $3,586.00 per month commencing January 1st, 2015

(k) In March 2014 the parties resolved the issue of child support for the period of March 1st, 2012 until December 2012. A further payment of $43,500.00 was paid for this period. This was based on the parties agreeing that the wife’s income in 2012 was approximately $152,000.00 and the husband’s was approximately $1,080,000.00, and they had equal time sharing; (l) spousal support was paid by the husband on a voluntary basis from March 2012 to March 2013, in the amount of $5,000.00 per month. No spousal support has been paid since March 2013; (m) in March 2014 Minutes of Settlement were signed which resolved the issue of equalization. The resolution consisted of the following:

• a payment to the wife of $15,000.00 on March 19th, 2014
• additional payments to the wife totaling $376,051.22
• a transfer of shares from the husband’s professional corporation to the wife’s professional corporation in the amount of: (i) $787,704.00 on September 30th, 2013 (ii) a $172,500.00 dividend paid in instalments of $25,000.00 in December 2011, $25,000.00 in January 2012, and $122,400.00 in February 2012. Interest on the sum of $787,704.00 was also paid in the amount of $20,480.30 in March 2014 (iii) a transfer of the wife’s interest in the matrimonial home to the husband (iv) the husband transferred his interest in a condominium the parties owned to the wife. Her parents reside there.

Witnesses

5The following people testified:

• the applicant wife
• Mary Ellen Willson
• the respondent husband
• Michael Carnegie

I will summarize their evidence.

The Applicant Wife

6The wife was the first witness and a summary of her evidence is as set out below:

• She reviewed her financial statements. An explanation was given for condominium expenses. She purchased it before separation for her parents (ages 69 and 72 as of trial) to live in as they were moving to Ontario. It cost $412,000.00 and she pays the expenses, as her parents do not have the funds with which to do so.
• The parties shared expenses on the matrimonial home until she left.
• An explanation was given for money paid for work on the new home she purchased. She paid the man she is seeing $60,000.00 towards a truck as he had done work in the home that included $32,000.00 to $40,000.00 worth of materials.
• She met the husband in 1992 when they were both in the first year of medical school at the University of Toronto. They began dating in 1993, when they were ages 23 and 24.
• When applying for residencies, they applied through a match service called the Canadian Residency Match Services. They filled the form out together. The wife said they were in a serious relationship at the time and knew they wanted children and that one of them needed to be flexible. She had thought of internal medicine at the time but knew the extra residency period that would be involved and they both were aware of what it would involve as a career. She said that they both knew that if she entered family medicine she would be more available for family.
• They were ultimately matched to McMaster University. Her residency was in family practice and his was in internal medicine.
• We heard that the wife’s Mother had a condition known as cervical dysplasia and had to have a hysterectomy at age 29. The wife was also diagnosed with this condition at age 28. She was in her second year of residency at the time and has had treatment. It was because of this condition and her Mother’s hysterectomy that she realized that they should probably start a family early.
• Her schooling involved:
  • a 4-year undergraduate program in New Brunswick;
  • 4 years at medical school
  • 2 years residency
  • a 10 month fellowship program
• She said the husband’s schooling involved:
  • a 4 year undergraduate degree
  • 4 years at medical school
  • 3 years residency in internal medicine
  • 2 year residency in cardiology
  • a 2 year fellowship
• We learned that the parties’ first child K.R. was born in 2001 when the husband was in his cardiology residency. She said he was very busy during these years and the children were lucky if they saw him before bed time. She took a 3 month maternity leave when K.R. was born but worked one-half day or one day. She also brought her to work for a while when she returned to work so she could breastfeed. She said she hired someone to care for her after that and she did all the “pick up and drop offs” once the child was in daycare.
• At the time that K.R. was in daycare, her medical practice was in Brantford and the parties lived in Dundas. The daycare was in Brantford.
• The wife said she took a 3 month maternity leave when W.R. was born and a 6 month maternity leave when J.R. was born.
• For W.R., she had him in her office for 3 months after the maternity leave and then she took him to daycare. For J.R. she took her straight to daycare after the 6 month maternity leave.
• She pointed out that the husband once took a shift that allowed his business partner to do his or her “early childcare run.”
• The wife says she did all the driving to and from the Brantford daycare centre. She ultimately left Brantford because it was far from Dundas (the part of Hamilton where they lived). She was sad to leave however because she had good hospital experiences there. However, she said the husband kept saying that she should leave Brantford with comments like, “You have to give it up because you can’t manage” and “my hours don’t allow me to do it” (take children to and from daycare).
• When asked if the husband ever did his share of the trip to and from daycare she said it was rare and she could only recall a couple of times. She added that he drove a sports car that had 4 seats and 2 doors, and there was no way he could fit all the children in with car seats. He purchased a 5 seat car in 2010 however.
• She described her work in Brantford. At one point it involved:
  • her family practice
  • time at the palliative care unit at the cancer centre
  • her rounds at the hospital
  • shifts at the public health clinic When asked how she handled all these roles with 3 young children she said it was hard and she had to drop some of them. She gave up the palliative care unit because it involved later hours and she gave up the public health clinic.
• The parties never had a live-in nanny and she said the husband was very much against it. She quoted him as telling a colleague who had a nanny "I’m lucky I have a nanny who is a doctor.” She felt belittled by this comment.
• The wife said that the husband’s shifts for his work always took priority. She said he was the “go to guy” and always took any shifts available. Sometimes she had to find babysitters at the last minute or find a colleague to switch with for her own schedule because she thought he would be available. Sometimes she booked vacation time and had to cancel it because of changes to his work schedule or because he agreed to accept an extra shift or cover for someone. She had to reschedule patients sometimes to accommodate his last minute changes. She said the husband would point out to her that she had more flexibility.
• The wife ultimately left Brantford and set up a practice in Dundas when she learned about a female doctor who was leaving.
• She commented that she could not go into emergency medicine now because she has been out of hospital work for 10 years and would have to take up a residency and rely on a stipend for an income.
• The wife said that it was her who arranged the children’s activities and appointments. The activities were described. She also said it was her who did all the meal preparation after work and it was her who organized the children in the morning including breakfast, preparing lunches and getting them on the bus. She said he began to help more with these chores shortly before separation however.
• The wife said that laundry and grocery shopping were mostly done by her on weekends.
• It was the wife’s evidence that as an Interventionist Cardiologist, the husband was the highest biller at the hospital and he earned over one million dollars one year.
• She said the husband never had to adjust his work schedule due to household routines.
• There are 4 doctors in her Dundas practice. One operates as the administrative doctor. She took over the practice of a doctor who worked 4 days per week. She initially turned it into 2 ½ to 3 days per week but it was hectic. The lowest amount she contributed from her earnings towards overhead was 30% and the highest was 35%. She said that 30% is a common arrangement. An exhibit brief was filed which sets out various aspects of the wife’s professional income. She reviewed the documents in the brief. The doctor who is the office administrator provided a letter wherein she described the wife’s employment. She said that Dr. S initially worked part-time when her children were small but she is now considered full-time. The other three doctors pay the doctor administrator about 30% of their earnings each month towards overhead expense, which is typically $18,000.00 per month. Other documents show that it has been as high as 35% for Dr. S. but in recent years it has been 30%.
• The wife explained how she bills the Ontario Health plan. There is a basic payment of $125.00 per patient with some bonuses for special procedures.
• She provided a document which describes how Family Health Organization (FHO) members of which she is one are paid and how they bill. There are a total of 14 doctors in her FHO. She said if you have over 2,400 patients there would be claw backs because there is a disincentive to have too many patients. If a patient goes to a clinic, or to a doctor not in her group, she could lose the patient fee or have a claw back imposed.
• Dr. S. provided lists that show the breakdown of the number of patients she had over the last few years through her practice in Dundas. An increase was shown. She had the following enrolled patients:
  • 852 as of March 2013
  • 906 as of April 2014
  • 917 as of April 2015
  • 932 as of November 2015
  • 925 as of January 2016
  • 1175 as of January 2016 when the entire patient list is included and not just patients enrolled.
• The wife was asked about the other doctors in her group. One doctor has more patients and she has young children. However, this doctor was described as having a locum who covers her patients 2 days per week. Other doctors there use locums as well. Dr. S. said that the doctor receives all the money from the Ministry of Health and pays the locum out of his or her own income.
• We learned that the doctors are on call at times on a weekend, on a rotating basis, and they see patients after 5:00 p.m. during the week on a rotating basis. Her weekday “after hours” time is usually on a Monday.
• A work schedule brief was provided. It showed her schedule for 2011, 2012, 2013 and 2014. The 2011 schedule showed patient and work time for Monday, Wednesday and Fridays. Her children were younger then. Dr. S. said that some things are not included in the schedule such as emergencies, paper work, her time with medical students, calls to make referrals and time to document things.
• The wife was asked if they took vacations as a family and she said that they had several. They went to Florida in the winter and attended a wedding in Mexico one summer.
• She said the husband has travelled to several places (France, Germany, Spain, California) for conferences and she went with him once. He has travelled often since the separation. She has not travelled much since separation.
• The wife was asked about the sum of $854,504.00 that is shown as an investment she has. She said that it is primarily from the equalization payment and she plans to keep it invested until she retires as she will need a retirement income.
• She was asked in cross examination about exhibits that showed the average fees for service billings from physicians across Ontario. She noted that the average billing for a family physician was $160,000.00. When only physicians billing over $100,000.00 per year are considered, the number if $284,800.00. The statistics showed that the top 5% billers are billing $613,000.00. She felt that she fell just below the average. Her 2014 gross billings were $255,410.00.
• She acknowledged that she and the husband were not matched for their first choice when they entered the matching program at medical school. They got their 3rd choice which was McMaster University. They both wanted the University of Toronto. He learned he was accepted on his own.
• The wife denied in cross examination that the husband encouraged her to go into internal medicine. She said the decision for her to go into family medicine was a joint decision as they wanted to have a family and this would work well with their values. She said she was inspired by her own family doctor at the time and how he treated an illness. She knew the training for emergency room work or internal medicine would be a lot longer and they wanted a family. In order to be emergency room doctor it would have involved another year of residence and 5 further years of shift work.
• She agreed that she made a decision to not work full-time when the children were young and that they both agreed to this. When asked if the husband wanted her to work full-time she said he discouraged her from full-time work and some of the extra tasks she was doing She was asked if he asked her to hold off on having a child while he completed his Royal College exams and she said no.
• Their first home cost about $262,000.00 and they had a mortgage for about $205,000.00.
• She was asked why the husband did not like her working in Brantford and if it was not because it was difficult to transport the children and she said no, as he always said that was her job. When asked if he picked them up and they went to Tim Hortons and McDonalds, she said it was a couple of times and not the 20 times that was suggested to her.
• She was asked if the husband attended most soccer games and she said he started coming to a lot more games close to separation.
• She agreed that the husband has idiopathic pulmonary fibrosis and is on the list for a lung transplant. She agreed that he was diagnosed in December 2008, and off work in 2009 for about 6 months. She agreed that they did not like debt and that they generally did not have credit card debt and they usually maximized their R.R.S.P. contributions. Their incomes went into a joint account.
• Questions were asked about her financial statement in cross examination. Her home was purchased in 2012 for $612,000.00 subject to a line of credit.
• Questions were also asked about her work schedule. She explained how she deals with prescription renewals for patients and how this time is not necessarily noted in a schedule. She said she started including more things in her schedule once the husband began questioning her income. Her staff then started including “paper work or charting” on her schedule. She acknowledged that you could not verify this time as it would require someone to follow her around all day.
• She was asked about $75,000.00 in dividend income shown in her 2012 income tax return. She said she never received it and it was a form of income splitting with the husband.

Mary Ellen Willson

7This witness was a registered nurse who worked at a medical centre in Brantford from 1999 to 2005, where the wife also worked. Ms. Willson recalled the following:

• Dr. S. brought the baby K.R. to work at 8:15 a.m. and then went on her rounds. She came back at 9:15 a.m. to nurse the child. During the day she would see patients and breast feed the child during breaks. Every 20 minutes or thereabouts she would check on the child.
• This routine began with the first child K.R. and continued with the second child W.R. At the age of 16 months, K.R. was taken to a babysitter in the morning, but the routine continued with W.R.
• It was a busy practice.
• Someone came in when K.R. was between 11 to 16 months old and took her for walks.
• This witness assisted with both children.
• She was not involved with the third child as the wife moved her practice to Dundas in 2005.
• When asked how the wife handled the balance of her career and family life, the witness said “excellently.”
• When asked if the wife ever expressed concerns to her about this balance she said no.

The Respondent Husband

8The husband gave the evidence set out below:

• We heard about the parties’ choices during medical school. His first choice for residency in internal medicine was University of Toronto but the wife was not accepted so they selected their next choice which was McMaster University. He did a 3 year residency at McMaster University in internal medicine. He talked about the nights where he was on call and usually up all night. It was 1 out of 4 days in first year; 1 out of 5 in second year, and 1 out of 6 in third year. He recalled the wife being busy during these years with rotations but it was less intensive than his program.
• He then explained the schedule he had in cardiology from 1999 to 2002. It too had a decreasing number of nights that he was on call. By third year it was 1 in 10.
• In total he had a 3 year residency in internal medicine and a 3 year residency in cardiology. It took 2 more years of residency to become an interventionist cardiology.
• He worked as a clinical scholar in the catherization lab and while he was in his cardiology intervention residency he could be on call for a full weekend. If called he would be expected to respond within 30 minutes and be at the hospital in 30 minutes. It was always an emergency.
• He became an assistant professor of internal medicine in March 2002 and then an associate professor.
• He reviewed his earnings and expenses for the year 1996 to 2004, when he was in training. He earned the same as the wife in 1996, 1997 and 1998. Then he earned the following:
  • $51,027.00 in 1999
  • $54,584.00 in 2000
  • $69,255.00 in 2001
  • $165,188.00 in 2002
  • $155,050.00 in 2003
  • $301,344.00 in 2004 He earned more once he had his license from the Royal College of Physicians and when he was considered a clinical scholar.
• He obtained an opportunity to earn more money for things like reading stress tests, conducting cardiogram tests, doing extra work in the lab, and moonlighting at Hamilton General Hospital. He could earn over $100.00 per hour for long shifts during his moonlighting and it could be for a 16 hour weekday or 24 hour weekend. He says he made a lot of extra money after hours during his final residency. He said he did not recall the wife complaining about this extra work but it was stressful for them. He felt it made more sense for him to do the moonlighting in the intensive care unit shifts in order to reduce the mortgage. He said that the wife was working a little less due to the young children.
• He was asked about partial Minutes of Settlement signed on March 19th, 2014 that showed his 2012 obligation to be based on $1,020,000.00. He said that this amount was obtained from an accountant who did an income analysis. He accepts the figures for the 3 years they analyzed which are:
  • $1,020,000.00 for 2012
  • $669,000.00 for 2013
  • $542,000.00 for 2014. The reason his tax returns showed a different amount is because he incorporated and he can use a small business deduction.
• Depending on what year, he may have had 8 or more sources of income. He gets paid from McMaster University but pays himself by way of dividends from his corporation. He took a large dividend in 2013 to make the equalization payment.
• His corporate year end is the end of May but he plans on changing it to the end of December.
• The husband’s financial statement sworn on January 8th, 2016 was reviewed. He pointed out an error. The $22,500.00 for disability insurance should be $23,000.00. As of March 9th, 2016 the full amount was due to “kick in.” He said that on the day of his diagnosis he qualified for $13,500.00 per month in disability benefits but he received a letter offering to increase it to $23,000.00 per month without any additional medical proof so he increased it immediately. He said he pays about $650.00 per month for life insurance and $400.00 per month for disability insurance. The benefits from the disability insurance are tax free.
• When asked about his wife’s choice of medicine he said she expressed an interest in family medicine early in medical school but that she also mentioned internal medicine and pediatrics as possible choices. He said she ultimately chose family medicine because her own family doctor was a positive role model; it would be easier to get placements, and she would have a wide range of patients. He felt that by their third or fourth year, she gravitated to family medicine and he gravitated toward internal medicine. She did not want something with “after hours calls.”
• The husband pointed out that they did not have children for several years after they made their choices. When their first child was born he was in his second year of his cardiology studies.
• When asked about child care in the early years, he said that he could not help much because the daycare was in Brantford but he looked after the children on weekends while she was doing errands. He said he made the trip to Brantford with a child or two about 5 to 6 times, and that he had been to the Brantford Hospital about 20 times in total as part of the transportation. He remembers picking the children up from the babysitter in Brantford.
• The husband said he was happy to hear that she was relocating to Dundas. He recalled her work day being from 9:00 a.m. or 9:30 a.m. to 4:30 p.m., with some days being more or less. He described times he assisted with daycare pick up and drop off in Dundas. His schedule varied. When he was training and working in the lab he could drop off in the morning but not in the evening when he was moonlighting. He described his typical workload as 70% clinical, 20% teaching and 10% research. In addition he had the lab work and the intensive care unit for cardiologist care. His weeks varied, so sometimes he could assist with child care and other times he could not. When he was in the lab he would usually be done by 5:30 p.m. at the latest, with the exceptions of times he worked until 8:00 p.m. which would be 2 out of 9 shifts. This might be 3 days a month. One out of 10 weekdays he would be on call for 24 hours.
• When asked if she was the primary caregiver, he said she did more than him while he was moonlighting to pay the debt. He was able to help more when she moved her practice from Brantford to Dundas. He said he was heavily involved in the children’s activities such as dance and soccer.
• He did renovations in the home. He assisted with getting the children ready for bed.
• When asked about the timing of starting a family, he said that he knew she was concerned about cervical dysplasia. He was concerned about the fact that he was still in school. He said they argued and one day she gave him an ultimatum and said that her biological clock was ticking and she wanted to have a family. He denied telling her not to count on him for child care but acknowledged that he could not help the same if she was taking the children to Brantford.
• We learned that he was the second highest biller in his group after separation and this would have not been the result of any help from the wife.
• He had some respiratory infections in early 2008. The diagnosis was a surprise because it usually happens to smokers in their 50’s or 60’s. The diagnosis was confirmed in December 2008. The husband has idiopathic pulmonary fibrosis. The prognosis is bad and there is no known treatment. When someone with this condition is bad enough they are placed on a lung transplant list which results in 8 to 11 hour surgery. He said that 5% to 10% die during, or shortly after surgery. 35% survive 10 years or more. Of the 35% who survived, half are disabled and half do well.
• He was off work in early 2009 after his lung collapsed in December 2008. He returned to full-time work in July 2009. He began to deteriorate in late 2010. He was off work for 4 months. By the summer of 2011 he worked 2 to 3 days a week. He went on supplemental oxygen and was no longer able to work full-time. By January or February 2015 his “testing numbers” were going down and it was determined that he could not work anymore. His last day of working as a physician was September 8th, 2015.
• The husband does a type of physiotherapy which is for lung transplant patients. He pointed out that 20% of people waiting for such a transplant die while waiting. A letter from a doctor dated December 14, 2015 regarding the husband’s respiratory condition was filed setting out the nature of his condition.
• Details of the husband’s life insurance policy were provided. It shows the 3 children as equal beneficiaries. He has 2 plans, one for 1 million dollars and 1 for 1.5 million dollars. He also provided a copy of his will. His uncle and a trust company are directed therein to pay any court ordered child support obligations to the wife out of funds that will be in trust.
• He was asked about the comment he made about his nanny being a doctor. He said it was a joke and intended as a compliment and that it was totally taken out of context.
• When asked why he said that his life was not different because of children, he said that he was proud of the time they put in to careers and children. He said he did compliment her, and he recalled the time he surprised her with a new car on a Saturday morning. He bought jewellery and paid for vacations. They went to Florida and went on a Disney cruise for her 40th birthday.
• He described some vacations he has taken with the children since separation.
• The husband was of the view that the wife did not work full-time prior to separation. He would describe it as half-time. He still does not think it as full-time and that is why he thinks income should be imputed to her. He felt that her calendars showed she worked more days during the last few years, but less hours, so the income did not increase much. 120 days increased to 200 days but without the corresponding increase in income. He drew attention to a chart showing the average number of hours worked by physicians in Ontario. A total average of 47.08 hours was shown, which he points out is significantly more than the 24 hours the wife was working.
• A further survey showed an average of 4 hours per week of “on call activities.”
• The husband agreed, in cross examination, that if he cannot return to work, his disability insurance will last forever.
• When asked how he would have been able to take all 3 children in his small car, he said that when he needed to take all 3 of them, he took the Volvo and she took the BMW.
• He was asked about the times the wife worked in the evenings at a clinic and he agreed that it was about 3 to 4 times per year. He added however, that her hours in Brantford were longer and he did some “pick ups” then. It worked differently in Dundas however.
• He agreed that her on call duties in Brantford were connected to the hospital and he did not dispute that it would have been about 1 out of 22 days that she was on call.
• He also agreed in cross examination that his comments about her work hours came from the calendars that she provided at his request.
• He was shown an email letter he sent to the wife on June 24th, 2014 wherein he said near the end “If I had to put an ending for this it would be you squandering huge sums of money on legal fees and getting not much in return.” He acknowledged sending it.

Michael Carnegie

9Mr. Carnegie is a chartered accountant, business valuator, and income valuator. He has been qualified as an expert for purposes of giving expert opinion in court on about 27 occasions.

10He was retained by the husband to complete an Earnings Analysis on the income and potential income of the wife. The title of his report was “Earning Analysis for Support Purposes” and it was dated August 25th, 2015. Some questions were asked of the witness by both counsel and submissions were made. The wife was opposed to the evidence of Mr. Carnegie, and his report being admitted. After hearing from counsel, I allowed the report to be admitted and for Mr. Carnegie to testify as an expert. However, I did so on the understanding that his evidence would be subject to weight.

11Mr. Carnegie came to the conclusion that the wife was not working full-time. He was hired for the purpose of determining if she was.

12He had the following documents to consider:

• The National Physicians Survey for 2014
• The wife’s calendars which set out her work schedule
• The wife’s 2012, 2013 and 2014 income tax returns.
• The witness said he met with the husband about 5 to 6 times but he did not meet with the wife.

13He did not consider her dividend income because historically this was a form of income splitting.

14His preliminary assumptions were that there would be 10 statutory holidays, 5 vacation weeks, a 5 day work week, and an 8 hour work day including lunch. This left 1,800 hours for full-time.

15He was aware that parts of the wife’s income were fixed, such as bonuses for prenatal care, participation in continuing education, and others. These things would not go up.

16The net variable revenue is the part that would increase if more hours were worked.

17He considered expenses and took into account that most were variable such as the fees to the owner of the clinic. Some were fixed however such as professional fees and accounting fees. He noted that the fees to the clinic were a percentage of revenue. This was 37.4% in 2012, 35.6% in 2013, and 32.7% in 2014. Ultimately he subtracted the “full-time equivalent variable expenses” and the “actual fixed expenses” from the full-time equivalent revenue she would have had if she worked full-time.

18The result was the calculations on page 8 of his report which showed the following:

6. Subtracted the full-time equivalent variable expenses and the actual fixed expenses from the full-time equivalent revenue to estimate what Dr. S.’s self-employed professional income would have been, had she worked (full-time equivalent net income).

	2014	2013	2012
Full-time equivalent revenue	409,410	460,234	532,448
Full-time equivalent variable expenses	(129,164)	(159,422)	(193,307)
Non-variable expenses	(15,377)	(12,646)	(10,757)
_________________________________
Full-time equivalent net income	264,869	288,166	328,383___

7. Subtracted the actual self-employed professional income reported on Dr. S.’s personal income tax return from the full-time equivalent net income to determine the additional net income to be added on Schedule 1.

	2014	2013	2012
Full-time equivalent net income	264,869	288,166	328,383
Actual net income	161,200	154,751	152,151
________________________________
Adjustment, rounded	104,000	133,000	176,000____

He was concluding than that the wife would have earned the following if she worked full-time:

• In 2012 - $328,151.00 (instead of $152,151.00)
• In 2013 - $288,351.00 (instead of $154,751.00)
• In 2014 - $265,800.00 (instead of $161,200.00)

A 3 year simple average for this period would be $294,101.00 and a 3 year weighted averaged would be $283,709.00.

The above analysis was for a 40 hour work week. He also did alternative calculations based on a 47 hour work week which statistics show is the average work week for a family physician in Ontario. The difference between the wife’s actual income and full-time equivalent net income was greater. The calculations show the following differences:

	2014	2013	2012
Full-time equivalent net income	318,670	346,570	393,875
Actual net income	161,200	154,751	152,151
____________________________________
Adjustment, rounded	157,000	192,000	242,000_____

19The witness said he reviewed one calendar day each month of the 36 months he was considering to make sure that the information provided by the husband was correct and it all checked out.

20In cross examination the witness acknowledged that he did not speak with the wife or any of her staff. He also acknowledged that if the wife was working somewhere else and this time was not included in the calendars, it would not be included in his calculations.

21He was asked if work could also consist of continuing medical education, renewing prescriptions, writing letters, dealing with staff, and relaying messages. He agreed that it could.

22He did not recall hearing that the wife had some teaching time at McMaster University, and he agreed that this might not be in her calendar.

23Counsel for the wife went over the list of tasks for family physicians set out in the National Physicians Survey. The tasks included the following:

• direct patient care without a teaching component
• direct patient care with a teaching component
• teaching education without direct patient care
• indirect patient care
• health facility committees
• administration
• research
• managing the practice
• continuing medical/education
• other

The witness acknowledged that the list includes these tasks and that mean times were given for each of these categories. For example, 3.12 hours were shown for weekly continuing medical education and professional development. When all categories were added up, it is 47.08 hours.

24When asked if he was aware that she was paid on a “capitation rate and paid on a per capita rate per patient”, he said he did not recall the specifics of this. He did not include consideration for a capitation rate, or a patient roster rate and he agreed that he did not know how this would influence his findings.

25In reply evidence, the witness agreed that he knew he was dealing with a “fee for service” practice, and that the roster size was not a factor. He said he made no assumptions as to how her practice should be carried out or how many patients she should have seen in an hour.

Reply by Applicant Wife

26The wife responded to the evidence of Mr. Carnegie. She felt that the calculations do not reflect all the tasks she has as a physician. The following examples were given in relation to the categories set out in the National Physician Survey:

(a) the calendars accurately show direct patient care; (b) the direct patient care with a teaching component is misleading however. The half day per week she and students see patients is included in the calendar, but not the discussions with the students before and after they see patients. These are first year medical students and she would be with them for about 30 minutes beforehand and for about 45 to 90 minutes afterwards; (c) the task described as teaching education without direct patient care may not be in the calendar because it could be about people other than medical students such as staff or nurses; (d) indirect patient care may not be included and might be done at home. This can include looking at lab results, reviewing consultation reports, dealing with prescription renewals, making a referral, and dealing with third party requests such as a request for an orthotics prescription. The wife estimated that this indirect patient care adds on 1 to 2 hours per day and that her calendars show about 7-8 hours per week less than what she does in this area; (e) the category “Health Facility Committee: was relevant she felt. She is on one such committee and it meets once per month. A 2 day conference was held to get a program running. This time would not be in the calendar; (f) the topic “Administration” was addressed. The witness said she and her colleagues have a monthly meeting and it is held for a couple of hours in an evening; (g) “Continuing Medical Education” was addressed. She said there are courses that are mandatory and a doctor must take them to keep his or her license. She said it involves 10 modules a year and they are 3 to 4 hours each.

27The wife was asked to comment on Mr. Carnegie’s report. She said that it only takes direct patient care into account.

28She pointed out that she receives a base pay of $125.00 per patient for certain extra procedures, and that the calculations do not reflect the way her practice works.

29For example, she referred to the chart on page 6 of Mr. Carnegie’s report. It showed $532,448.00 in full-time equivalent income for 2012. This means the amount of gross income she would have received if she worked full-time. This amount did not include bonuses. The wife pointed out that if we divided $532,448.00 by $145.00 (assuming she received $145.00 per patient and not $125.00) that would work out to 3672 patients. She has a total of 1,175 patients, of whom 925 are rostered.

30When asked if she knows any doctor who has that many patients, she said no. She is aware of one doctor who has 2,100 regular patients but he pays a locum to come in 2 full days per week.

31The rate of $145.00 (or $125.00) per patient is paid per year whether that patient comes once per year or ten times.

32If someone comes in more often she can “de-roster” them and charge a code fee. This could include $37.00 for a cough or cold symptoms. It would then go towards the $45,000.00 (or thereabouts) cap in place on “fee for service” services.

33In cross examination she was asked about a clawback once a doctor is over 2,400 patients. She said there is one as part of the capitation system and you only get 50% of the fee after that.

34She was asked about administration functions and she said that this is not all done by the administrative doctor at her clinic. Sometimes she needs to give instructions to her own staff that might be different from the other doctors, such as how to deal with messages when she is out. She said there is a lot of communication between herself and her staff.

35She was asked about student time and she said it is one per week for one half day.

36The wife was asked about the math behind her position. For example, if she earned $255,000.00 and divided it by 1,175 patients it would work out to $217.00 and not $145.00. (He was using the proposed 2014 figures). She responded that the gross fees also include non-rostered patients. In addition, there are bonuses. She said she received $10,000.00 in bonuses the year before. Also there is a $150.00 fee for a medical report.

37The wife was asked about time spent writing information on charts. The husband’s lawyer noted that on January 9th, 2014, she showed an entire morning for referrals and charting. There were other days in early 2014 where she had entries for paperwork and charting. She said that she does not always write this in the calendar.

38The husband’s lawyer also asked about a CME meeting on February 11th, 2014. The wife said it was a continuing medical education program.

39The wife was asked to explain what an access bonus is. She said that if a patient goes to other doctors or clinics, there is a clawback. When a bonus is given, it is a percentage and is multiplied by the number of patients. They use this to calculate the clawback. An access bonus is held back for one month and then paid once any clawback is factored in.

40In reply the wife was asked to clarify her practices regarding entries in her calendar for other activities (such as teaching, conferences, charting). She said that she started writing these things in once she received notice from the husband that he was going to be questioning whether or not she worked full-time. She said she still does not write all of it down however.

41The expression “Charting” refers to the completion of notes after a patient leaves.

Submissions

Applicant Wife

42A summary of the submissions made on behalf of the wife is as follows:

(a) the terms of the order that the wife seeks was provided; (b) the wife is entitled to spousal support on a compensatory and non-compensatory basis. There has always been and will continue to be a significant discrepancy in their incomes. The choices as to what type of medicine to pursue and what type of residencies were made jointly. The wife made sacrifices to be able to maintain the flexibility to be home for the children after school, take the children to daycare, pick them up for daycare, get dinner ready, and be with them in the early evenings. This was particularly necessary when the husband worked late; (c) they had a combined income that allowed them to be debt free, and pay off their mortgage in 5 years. The husband has had the higher income as a result of extensive years of residency while the wife was working, and he now earns a lot more than her; (d) both parties were eager to have children and wanted the flexibility to raise them themselves. Neither wanted a nanny. The husband completed three different residencies and this took about 8 years. He became a specialist in interventionist cardiology and at one point he was the top or second top biller at McMaster University, and just after separation he earned $1,020,000.00 in one year. He chose to pursue the more demanding and lucrative field while the wife chose the less demanding one with more flexibility that allowed her to start a family earlier and be more available for the children. When the husband was writing cardiology exams the parties’ third child was about 18 months old. The wife had an early interest in emergency medicine but abandoned that in order to be able to have and parent children and support his career; (e) the evidence showed that the husband worked many extra hours which required the wife to be home. She testified that she would block out vacation time and then have to cancel it because he said he had taken on extra shifts at the last minute; (f) the evidence from Ellen Willson was that the Mother had significant child care responsibilities when she was working in Brantford; (g) it was not disputed that the wife set up all the children’s medical appointments, dental appointments and that she was the one who was involved with field trips and activities at the school. The husband had a smaller car and could not handle the trips to and from daycare; (h) she shows a deficit in her financial statement and he shows a surplus; (i) neither party has an employee pension. The wife plans to save the funds from her equalization as a retirement fund. An argument was made that joint funds were used to pay premiums on the disability insurance benefits that the husband now receives, which is $23,000.00 per month not taxable; (j) the wife’s income has risen steadily since the children were born showing that she has worked more as her home responsibilities lessened. Her number of rostered patients has increased; (k) I should give no weight to Mr. Carnegie’s report. He had no contact with the wife or her staff. He was unclear about the nature of renumeration during cross examination. He was unaware of the tasks that she performed outside of her calendar entries. She said, for example, that she could have over 35 messages waiting for her when she was not in the office which would require her to access electronic medical records, and cross reference with charts. The wife thought that she would need to have over 3,600 patients (a number unheard of) in order to bill the over $500,000.00 needed to earn the money imputed to her. (l) the husband agreed near the beginning of the trial that he would accept our expert’s calculations for his income for the years 2012 ($1,020,000.00); 2013 ($669,000) and 2014 ($542,000). It was difficult to ascertain his income because he had 3 different income sources with different year ends; (m) it may be easier, on a go forward basis, to use 2014 incomes for 2015 because complete incomes for 2015 were not known by the end of trial. Adjustments can be made later; (n) the equal timesharing began as of separation in March 2012 and so there is no reason to not equalize incomes with spousal support. The lifestyle is the same and as such, a sharing of net disposable income is appropriate; (o) by her calculations, the husband overpaid child support in 2013 by $8,004.00 and he underpaid it by $13,613.00 in 2014 with other payments included, a total of $9,167.00 now owing. Counsel provided calculations to show the incomes of the parties and what was actually paid. She used a split formula for child support due to the equal time sharing which the parties agree to. (p) case law was provided which I will review separately.

Respondent Husband

43A summary of the submissions made on behalf of the respondent husband is as follows:

(a) counsel for the husband provided the terms of the order he is seeking; (b) the husband readily acknowledged that while he was going through training there were periods when he had to work very hard and the wife had to take on extra household responsibility. He did not deny that she took on the majority of parenting during the years when the children were born and the wife worked in Brantford; (c) both parties entered their chosen field while at medical school (d) the husband gave evidence about being involved in the children’s activities and delivering them to and from school or daycare. He was not an absentee father, and he was involved in family life; (e) this is not a classic case of a wife who gave up full-time employment to stay home with children and then has to get back into the work force. With the exception of 3 breaks for maternity leave, the wife continued to work. There are different degrees to which a person ends up experiencing some sort of disadvantages from being out of the work force; (f) when the marriage broke up, both parties ended up with a significant net worth. She has $843,719.00 in her corporation. She was actually very advantaged by the fact that he pursued the career that he did. He has also paid significant child support as a result of his career choices. His disability benefits are income replacement for someone who is disabled; (g) much of the expenses on the wife’s financial statement are in regard to a condominium she pays for for her parents; (h) her evidence that she went from part-time to full-time after separation makes no sense. She earned a net professional income of $149,131.00 in 2011, and it was $152,150.00 in 2012. A $2,000.00 increase does not seem much for transitioning from part-time to full-time. Additional increases thereafter were modest. Her number of rostered patients only went up by small increases; (i) whether or not Mr. Carnegie did an analysis on how much was paid as fee for service and what the service was is irrelevant. The relevant part of his analysis is that he considered how much she made for the number of hours she worked. He took into consideration that she started being more diligent in recording “charting” time, including paperwork and referrals, in 2014. He considered these tasks. According to Mr. Carnegie’s charts, the wife’s hours of work increased but her revenue per hour of work decreased. Counsel for the husband suggested that the hours being reflected are not accurate and one could be led to the conclusion that there has been a padding here to deliberately lead the court to believe she is working full-time. He pointed out that the math does not add up by her explanation. For example, if we divide her gross billings of $255,410.00 by the 906 rostered patients she had, the average would be $281.90 which makes no sense given the $145.00 maximum allowed. If we subtract that $45,000.00 cap for non-rostered patients it still does not add up. It would be $232.00 per patient; (j) the amount of money he has paid so far in spousal support ($47,500.00 in 2012 and $15,000.00 in 2013) needs to be credited in a way that gives him credit for the fact that he did not claim an income tax deduction on it as it was not periodic support payments based on an order or agreement. The wife included it on her tax returns however and paid taxes on it. Counsel for the husband explained how this should be handled. For simplicity he thought a rate of 46.4% should be used and he believes this is agreed to. If I accept that the sum of $69,115.00 is owing for 2012 for example, then I should multiply that by 46.4% and end up with a sum of $37,045.64; (k) the provisions of the Divorce Act do not apply to this situation. There is no economic hardship arising from the breakdown of the marriage. We were reminded that the wife bought herself an $85,000.00 car, gave her boyfriend $60,000.00, and received a large amount of child support. The wife already has economic self-sufficiency and could have more if she worked full-time. He provided her with $62,500.00 shortly after separation and this was like $121,368.00 since he could not deduct it on his income taxes; (l) due to the findings of Mr. Carnegie and the evidence presented at trial, he is suggesting that the wife be imputed with an income of $300,000.00. Given that she earned $149,191.00 when she was working part-time prior to separation, she should be able to earn $298,262.00 when she worked full-time; (m) each party should be able to name whoever they want to be trustee of their respective life insurance policies. Counsel reviewed the case law which I will comment on separately.

Reply Submissions of Applicant Wife

44A summary of the wife’s reply submissions is as follows:

(a) the husband cannot ask for an order regarding the wife’s insurance policy because this was not claimed in his answer; (b) there is a significant difference in the parties’ corporations. His was set up for handling his various sources of income. Hers was set up for the sole purpose of receiving the equalization payment from the husband’s corporation. There is no new money being deposited into her corporation. This point was made because he wants the corporate income of both parties to be considered every year. (c) it is important to remember, when considering the husband’s income, that his income tax return showed a line 150 income of $346,00.00 the same year that Mr. Piper, the accountant, said it was over one million dollars, and this is no longer in dispute. An expert was hired due to the 3 different year ends from his 3 sources of income. Income, not captured in one year, will be captured in the next, or vice versa; (d) she does not agree with the husband’s suggestion of how to deal with the tax implications and wants an order that does not limit her client’s retroactive award, if granted, since she paid tax on it. If there is a discount, it should not be at the full marginal tax rate because he has had the benefit of this money being held by him going back to 2012. She then referred to the Fielding v. Fielding case and Patton-Casse v. Casse which will be discussed herein later. She suggested that an amount of 35% might be applied. The husband would get credit for the $62,500.00 paid and any further amount owing would be subject to a 35% discount. (e) the suggestion that we can take her income from the last year that she called her work part-time and double it to impute full-time work makes no sense. There is no logic behind it. Her hours increased and she considered one year part-time and the next full-time; (f) the wife began to make more entries in her calendars when the husband became adamant in his position regarding her work hours. However she did not include the 35 or more calls she returns each day, or all paper work; (g) any suggestion that she has not been honest or that she falsely inflated her billings should be discounted. Her billings are presented on a month to month basis and the administrator of the clinic receives them and bills for the doctors’ contribution to the overhead. There are numerous other sources of income than just “the number of patients times $145.00 or $125.00.” There is a newborn care episodic fee of $1,399.00. There are different codes, premiums and bonuses including an access bonus. There are payments to the FHO physicians for telephone health advisory services, after hour obligations, group management and leadership payments. These items are set out in the material filed as is the wife’s specific FHO agreement. There is no room for her to fudge her income.

The Legislation

45The relevant legislation is the Divorce Act (R.S.C. 1985, c.3 (2nd Supp.), as am.) (ss. 1 to 35.1) Section 15-2 covers the issue of spousal support and reads as follows:

15.2 SPOUSAL SUPPORT ORDER - (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) INTERIM ORDER - Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) TERMS AND CONDITIONS - The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) FACTORS - 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.

(5) SPOUSAL MISCONDUCT - In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER - 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.

The Case Law

46I was referred to the following cases by the Applicant:

1. Cassidy v. McNeil, 2010 ONCA 218
2. A.A.M. v. R.P.K., 2010 ONSC 930
3. Evans v. Evans, 2003 ONSC 2021
4. Fielding v. Fielding, 2014 ONSC 2272, aff’d 2015 ONCA 901
5. Roseneck v. Gowling (2002), 2002 ONCA 45128, 62 O.R. (3d) 789 (Ont. C.A.)
6. Linton v. Linton (1990), 1990 ONCA 2597, 1 O.R. (3d) 1 (Ont. C.A.)
7. Friedl v. Friedl, 2012 ONSC 6337
8. Patton-Casse v. Casse, 2011 ONSC 4424

I was referred to the following cases and articles by the Respondent:

1. Calvert v. Stewart, 2009 ONSC 528
2. Article in the Annual Review of Family Law 2014, by Alfred Mamo.
3. Excerpt from a Talk by Philip Epstein at the Family Law Summit on March 30th and 31st 2015

47Cassidy v. McNeil is a 2010 Ontario Court of Appeal case. The parties had a 23 year marriage. The wife limited her career to care for the parties’ three children, and worked in different teaching positions, including contract positions. The husband taught at the university level. The children remained with the father after separation. The trial judge ordered the husband to pay $1,200.00 per month in spousal support for a period of 5 years. The wife appealed and sought a higher amount for a period of 12 years. The parties were 54 years of age. The husband appealed and requested that the spousal support order be set aside.

48The Court of Appeal stated that the trial judge found that the wife had established a need for spousal support, but there was no analysis on the issue of entitlement. The court noted that Calvert v. Stewart involved a wife who worked as a physician and in an area of medicine that was her passion. Her career was not defined to have been hampered.

49Also in the Calvert case the judge found that after child support was paid and a voluntary payment to an older child was made, there was not much difference in the net incomes of the parties. As such the Calvert case was distinguished.

50Cassidy v. McNeil involved a situation where the wife subordinated her career to that of the husband. She also had some health issues at one point.

51Speaking for the court, Justice Lang commented on the concept of incomes merger, and wrote at paragraph 69:

69 Finally, the Husband argues that the Wife did not enjoy an elevated lifestyle because, as found by the trial judge, the parties lived frugally. However, this argument ignores the fact that the Wife would have benefited from the parties’ joint incomes, even if the parties gave priority to their children and their mortgage during the marriage. In addition, the Husband’s argument also ignores the obvious expectation that, once the children were grown, their joint incomes would benefit them both. Over the 23 years of their marriage, the parties’ expectations and interdependency would have evolved into an economic merger of their interests. That merger, together with the Wife’s somewhat compromised career path, meets the threshold of entitlement to spousal support.

52It was decided by the court that the trial judge erred in ordering time limited support. Justice Lang noted that the trial judge did not explain why time limited support was ordered. She wrote at paragraph 71:

71 The trial judge in this case did not award indefinite support. Even when combined notionally with the pre-trial period of 4.5 years, a total of 9.5 years of spousal support is not “indefinite”. The trial judge did not explain why he did not order indefinite support, apart from his reference to the Wife’s “need” during the five years she would likely be paying child support. Given the “economic merger” between the parties, the uncertainties surrounding the Wife’s employment, and the Husband’s security of employment, I see no basis to time-limit spousal support. Accordingly, I would accept this ground of cross-appeal and vary spousal support to remove the termination date, understanding of course that the Husband is free to seek to revisit ongoing entitlement on a variation application, particularly on an application to terminate support.

53The trial judge had ordered the high range of support for the 5 year period. The Court of Appeal ordered the low range on an undefined basis due to the husband’s obligation to the one child still in school and living with him.

54The husband’s lawyer in the case before me pointed out that this case involved a much longer marriage (23 years) and the parties’ incomes were much lower than the case before me. It is also different because the career of Dr. S. was never stopped.

55A.A.M. v. R.P.K. is a 2010 Ontario Superior Court of Justice case. The facts were different because this case involved a request to set aside a Separation Agreement. The court allowed a fresh look at spousal support however. In this case, the parties had 2 children and were together for 9 years. The parties met at Veterinary College and they became veterinarians. The mother’s career was delayed somewhat due to child care responsibilities. As of separation the husband had the higher income and there was a significant disparity between incomes.

56Justice Pazaratz commented on the leading Supreme Court of Canada cases of Moge v. Moge and Bracklow v. Bracklow in paragraphs 182 and 183 as follows:

182 In Moge v. Moge, [1992] 3 S.C.R. 813 the Supreme Court of Canada made it clear that the spousal support provisions of the Divorce Act are intended to achieve an equitable sharing of the economic consequences of marriage and its breakdown. The statutory objectives in section 15.2 (6) have been set out above. No one objective is of overriding importance.

183 In Bracklow v. Bracklow, [1999] 1 S.C.R. 420 the Supreme Court set out that there are three conceptual grounds for entitlement to spousal support:

1. Compensatory support (both specific, calculable and non-specific) to address the economic advantages and disadvantages to the spouses flowing from the marriage (or the roles adopted in marriage);
2. Non-compensatory dependency-based support, to address the disparity between the parties’ needs and means upon marriage breakdown; and,
3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financial obligations to one another.

57Ultimately he awarded compensatory and non-compensatory support. He felt that the responsibilities to 2 children impaired on the wife’s ability to start her working career and grow her business. On the other hand, the husband was able to devote time and attention to growing his very profitable business given the wife’s assumption of significant child related responsibilities. Post separation increases in his income were included in his income for support purposes. Justice Pazaratz said at paragraphs 206 and 207:

206 In this case both parties’ incomes have increased since 2004. But the gap between them has continued to be significant. Part of the Applicant’s compensatory claim relates to the fact that as a veterinarian her income eventually grew and undoubtedly it will continue to grow- but she still lags behind the Respondent, and perhaps she’ll always lag behind- because of the enhancement or head-start the Respondent obtained when his career was given primacy during the early years of the marriage.

207 To simply ignore the continuing income gains by the payor, while factoring in changes in the recipient’s earnings, would almost inevitably preclude consideration of an important component of a compensatory claim.

58A lump sum of spousal support was ordered which was based on spousal support for 5 years at a point over the mid-range, and discounted by about 45%.

59Counsel for Dr. S. herein believes this case is similar to ours.

60The husband said he had not noticed a change in her life since having children and his income did not go down. They made a joint decision to not have a nanny.

61Counsel for the husband noted that support was only for 3 years, but the facts are different in any event. Dr. S. should be self-sufficient and she has always worked. He also noted that the wife did receive some interim spousal support, so a time limited award is not necessary or appropriate.

62Evans v. Evans is a 2003 Ontario Superior Court of Justice case. Due to a serious asthma problem, the wife was deemed unable to work in her chosen field. Both parties had worked in the field of animal physiology at the University of Guelph.

63The trial judge found that the parties agreed that family would be more of a priority for her than her career, and she took a 3 year hiatus for this. In addition to this consideration, was the fact that a doctor said the wife could no longer “tolerat any degree of exposure to animals or birds”. The trial judge accepted evidence that the wife could not work in her chosen field for health issues.

64It was also noted that the wife put her career on hold when she moved to Calgary so the Applicant could complete his doctorate degree. For the above considerations the trial judge found that the wife was entitled to spousal support. Indefinite monthly support was ordered. Retroactive support was not ordered however, as this issue was not actively pursued until trial, and the parties finances would make it difficult.

65The husband’s lawyer said this case can be distinguished because Dr. S. never put her career on hold. Also Evans v. Evans involved a support recipient with health problems. Mr. Snelius asked me to consider the different factors involved in each case in regard to age, health issues and whether or not a career was put on hold.

66Fielding v. Fielding is a 2014 Ontario Superior Court of Justice case. The parties had a 17 year marriage and there were 3 children. At the time of the marriage both parties were practicing medical specialists, being an urologist and plastic surgeon. The evidence showed that after the birth of their first child, the wife did not return to the same level of full time practice as she had before. She earned $85,000.00 the year her first child was born and $176,000.00 the year before. She had difficult pregnancies. In the early 2000s she developed a degenerative eye condition. She stopped practicing as an urologist in 2007 and said it was due to child care issues. Justice Mesbur found that it was due to her vision problems. She began to receive disability insurance benefits. The parties separated in late 2010.

67The parties’ incomes were determined to be $850,000.00 (the husband) and $220,000.00 (the wife). The wife requested spousal support on a compensatory and non-compensatory basis. The husband felt that she was not entitled to spousal support and that employment income should be imputed to her. Her income of $220,000.00 was from disability insurance benefits (grossed up to reflect the tax free basis of the benefits) and investment income.

68The court concluded that it was not realistic to think that the wife, who was 57 years old, would be returning to the work force. Both parties agreed she could no longer work as an urologist. The husband sought to impute income however.

69The trial judge found that the wife was entitled to spousal support given the large difference in their incomes. She wrote at paragraph 193:

193 “This was a reasonably lengthy marriage of just over 17 years. Courts have held that the longer the marriage the more reasonable it is to have each spouse continue with roughly equal incomes.”

70The judge found that the wife’s practice never regained its “pre-children vigour” after the children were born. Her practice was described as being 60% of what other urologists were doing, according to a hospital Chief of Urology who testified. Justice Mesbur concluded that the wife was entitled to spousal support whether compensatory or on a needs-based basis.

71An amount of $10,000.00 per month was ordered. Justice Mesbur noted that this amount did not equalize incomes or provide each with half of the net disposable income. It would provide the wife however with sufficient funds with which to meet her needs. The spousal support was to be paid on an indefinite basis. Retroactive support was awarded but reduced to account for the fact that the tax deduction would no longer be available.

72Child support was ordered on a simple set off basis in accordance with the parties incomes as one child lived with the mother and one child lived with the father. The parties had agreed to a set off arrangement.

73Justice Mesbur noted that the husband’s income increased over the years, even after the children were born. He was involved with the family but the wife reduced her practice in order to manage household and child care responsibilities. Counsel for the wife in the case before me submits that the circumstances are similar.

74Mr. Snelius pointed out that this case can be distinguished because the support recipient was in her 50’s and disabled.

75Roseneck v. Gowling is a 2002 Ontario Court of Appeal case. The trial judge found that the parties had approximately the same earning capacity, that the wife was financially self-sufficient and that this was a relatively brief marriage. No spousal support was ordered. The Court of Appeal declined to find that the trial judge erred in dismissing the claim without specifically mentioning the concept of “economic disadvantage” in her reasons. However, they were prepared to review the issue of spousal support because the equalization order was altered by the Court of Appeal.

76Neither compensatory nor non-compensatory support were ordered.

77Speaking for the Court of Appeal, Justice Weiler said the following about compensatory support at paragraph 61:

61Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as a sacrifice made for a spouse’s career and loss of economic opportunity sustained as a consequence of raising children. This is particularly applicable where a property division is insufficient to achieve this result: see Moge, supra, at pp. 843-49 S.C.R. Where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared: Linton v. Linton (1990), 1990 ONCA 2597, 1 O.R. (3d) 1, 75 D.L.R. (4th) 637 (C.A.). As pointed out by Carol Rogerson in “Spousal Support Post-Bracklow: The Pendulum Swings Again” (2001) 19 C.F.L.Q. 185 at p. 191, the compensatory principle fits most comfortably the situation where, as a result of having children, the parties have developed an interdependency and merger of their economic lives.

78In addressing the issue of non-compensatory support, Justice Weiler said the following in paragraph 65:

65Non-compensatory support focuses on the mutual obligation that arises from the marriage itself, the expectations of the parties when they married, and the need to grant relief from hardship flowing from the break-up of the marriage: Bracklow, supra, at paras. 48-49. Thus, non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such as age, illness or disability. It is apparent that these factors need not necessarily be connected to the marriage. Where the marriage is of relatively short duration and there are no children of the relationship, however, economic self-sufficiency carries greater weight when considering the expectations of the parties: Rogerson, supra, at p. 281. The evidence before the court does not lead me to conclude that a non-compensatory order for support is required to address and cushion the effect of the marriage breakup.

79The trial judge’s decision to deny spousal support given the equal earning potential and the brief marriage was upheld despite the fact that the wife did not work for 3 years during the marriage.

80This case was provided for the commentary on compensatory support as a basis for entitlement. Ms. Hughes said that her client is requesting to share the impact of the breakdown equitably which is what Justice Weiler wrote about. The goal is not to tip the balance in her favour with a mid-range spousal support order, but to equalize the net disposable income.

81Linton v. Linton is a 1990 Ontario Court of Appeal case. It involved an appeal of an order for indefinite spousal support of $2,500.00 per month. The Court of Appeal reviewed the law in depth and upheld the trial judge’s decision. The wife had left her job to primarily raise the children and manage the home and had moved to accommodate the husband’s career and continuing education. She was a clerk typist when the parties married. Sometime after separation, the wife obtained employment as a medical secretary and she was working in that capacity as of trial, earning $18.04 per hour. The husband was earning about $140,000.00 per year. It was a marriage of over 24 years and with 3 children. The Court of Appeal noted that the trial judge considered the length of marriage, the functions that Mrs. Linton performed during the marriage and he concluded that Mrs. Linton suffered an economic disadvantage as a consequence of the marriage and its breakdown. The Court agreed with the approach taken by the trial judge. Speaking for the court, Justice Osborne said at paragraphs 95 and 96:

95 During cohabitation Mrs. Linton’s financial needs expanded as the parties’ standard of living improved. The marriage breakdown caused Mrs. Linton to lose those sources of direct financial support she had received during her marriage in which it appears no different allocation of responsibilities was seriously considered. Mrs. Lintons’ years out of the labour marked have eroded her skills, eliminated any access to promotion she might have had, denied her access to collateral benefits, including disability and unemployment insurance and denied her access to any pension arrangement which might have been available had she worked outside the home. The economic disadvantages are obvious, as is the diminution of Mrs. Linton’s capacity to cope with misfortune, should it develop: see Carol J. Rogerson, “The Casual Connection Test in Spousal Support Law” (1989), 8 C.J.F.L. 95.

96 The objective of self-sufficiency must be assessed in the context of the marriage, particularly in a marriage involving a long period of cohabitation. To do otherwise is to recognize inadequately the economic value of the functions of child care and household management and the economic disadvantages accruing as a result of a long-term absence from the workforce. Defining self-sufficiency in the context of a Wife’s employment some 24 years before separation does not adequately recognize the economic advantages accruing to the Husband. Nor does that approach adequately recognize the economic disadvantages accruing to a Wife who has been substantially out of the workforce while undertaking child care and household management responsibilities for an extended period. See Rosalie S. Abella, “Economic Adjustment on Marriage Breakdown: Support” (1981), 4 F.L.R. 1.

82The Court agreed with the quantum and the fact that the support was indefinitely binding on the husband’s estate.

83Friedl v. Friedl is a 2012 Ontario Superior Court of Justice case. Spousal support was allowed for a 7 year period. The wife worked as a teacher and it was found that she had not suffered an economic disadvantage as a result of her earlier abandoned nursing job. It was found that she was always in complete control of her professional development and was never hindered by marriage or the obligations that flowed from it. She had reached the highest earning bracket available for a teacher of her experience. As a result compensatory support was not deemed appropriate. She was awarded $6,000.00 per month however, based on incomes of $102,552.00 and $277,000.00. The husband was a dentist. The court found that both parents flourished in their careers and shared in child rearing. The non-compensatory fixed time limited support was to soften the blow of the financial transition.

84Justice Nolan wrote at paragraphs 115 and 116 on the topic of compensatory vs. non-compensatory support:

Compensatory Support

115 The court in Delguidice v. Menard, 2012 ONSC 2756 at para. 53 provides a concise description of compensatory spousal support: it is “intended to address a recipient’s economic loss or disadvantage or the recipient’s uncompensated conferral of an economic benefit on the payor arising out of the respective roles assumed during the marriage.” Most often, the economic disadvantages suffered by a spousal support claimant will be in the form of foregone opportunities for career or educational advancement, and will usually stem from the parties’ decision that the claimant spouse will be primarily responsible for the care of the parties’ children in the performance of associated domestic duties.

Non-compensatory Support

116 As detailed in Fisher v. Fisher, non-compensatory spousal support is intended to address a recipient spouse’s needs as well as any post-separation decline in his or her standard of living that results from the fact that the recipient spouse no longer has access to his or her former spouse’s income. In order to ascertain whether a claimant is entitled to such support, it is necessary to look at the income of both spouses, the standard of living that was enjoyed by them during the marriage and the recipient’s current needs in light of that standard.

85Counsel for the wife pointed out that this description of compensatory support and non-compensatory support shows that the wife is entitled to spousal support and a sharing of income regardless of which option is considered. One party was expected to take a subsidiary career role, and she felt belittled when he said that he had a doctor as his nanny. She felt belittled when he sent the email that mentioned he was bored of her and predicted that she would not be successful in this action. She noticed how he told someone that they raised their children with little assistance which did not take into account her role.

86Calvert v. Stewart was a 2008 Ontario Superior Court of Justice case. Both parties were physicians and they had 3 children. The wife became a general pediatrician and the husband worked in internal medicine and became chief of staff. Prior to separation the wife was working part time and devoting time to the children. After separation she increased her work hours. The parties’ incomes in the year of the trial (which was in December 2008) was $139,667.00 (wife) and $274,000.00 (husband). The difference between incomes was similar in 2006 and 2007.

87The judge reviewed the law and noted that this was a relationship of just over 20 years, and both parties worked in their chosen field of employment. Justice Matheson concluded that entitlement to spousal support had not been established. The husband was ordered to pay child support for 2 children and this included $46,635.00 in a total annual guidelines amount and about $12,000.00 per year for the oldest child in university, plus a 2/3 share of incidental expenses. He felt that there would not be a great difference in net disposable incomes once this amount was paid. He noted that the wife took time out to care for the children when they were young but had been working full time for some time in her chosen field.

88Counsel for the husband believes the facts are similar to the case at hand. The wife chose to be a family physician and she has always worked in that field throughout the marriage. She could be working more hours to increase her income.

89The article in the 2014 Annual Review of Family Law was provided as a reminder that a payor cannot deduct periodic payments that were ordered retroactively but not paid previously on periodic amounts.

90The paper from the Family Law Summit was provided for the following quotation:

For example, in Samoilova v. Mahnic, 2014 ABCA 65 the court

“According to Revenue Canada’s Tax Interpretation Bulletin (IT-530R, para 4), in order for spousal support payments to be deductible they must be payable as an allowance for the maintenance of the recipient on a periodic basis. An amount paid as a single lump sum will generally not qualify as being payable on a periodic basis. To quote paragraph 22 of the Interpretation Bulletin:

a lump sum payment required by a court order… in respect of a period prior to the date of the order… would not be considered a qualifying support amount for purpose of subsection 56.1(4) [of the Income Tax Act].

So, retroactive or lump sum spousal support payments are generally not deductible by its payer. And, according to paragraph 3 of the Interpretation Bulletin, “if the payer is not entitled to an income deduction for support amounts paid, the recipient is not required to include such amounts in income.” [para.2]”

Conclusions and Analyses

91The parties resolved all custody and access issues by way of a closed mediation report. I granted and signed an order on February 23rd, 2016.

92The property and equalization issues were resolved by way of Minutes of Settlement, which were signed on March 19th, 2014.

93Evidence was led during the trial for a divorce. Clearance has been granted and a Marriage Certificate issued by the Registrar General of Ontario has been provided. I will grant the divorce, and it will be a separate order for the convenience of the parties.

94The Certificate of Marriage show a middle names for the parties which were not included in the pleadings. The full names will need to be included in the style of cause for both orders and throughout the Divorce Order.

95The issue of the Earnings Analysis report needs to be dealt with. I ruled that Mr. Carnegie could give expert opinion, subject to weight. He had done many income analyses reports over the years as well as business valuations, and other accounting analyses. He is well known to the court and has been qualified as an expert on 29 prior occasions. He explained his process well. However, I have considered the evidence and I have come to the conclusion that the report should be given no weight.

96The purpose of this report was to, after analysing the material he was given, conclude whether or not the wife herein worked full time. He began with the assumption that she was not working full time and after conducting his analyses, he agreed with that assumption. I have concerns, however, about the fact that neither the wife nor anyone connected to her clinic were contacted by the author of the report. It may be that if he spoke to them, his findings would be similar. I have to be satisfied, however, that all necessary information was available to the expert. I do not know if the wife would have cooperated with this process if she were asked. She had no obligation to. There was no court order for a support analysis to determine if full time work was engaged in. There are just too many variables in the Applicant’s working life to leave it to a review of her daily calendars and province wide statistics.

97We learned that the wife started to record what she called “charting time” in her work calendar after she knew that the husband was questioning how many hours she worked, but she was not doing that for the entire time that her calendar was being reviewed.

98We also learned that she can have over 25 telephone messages to review, which require her to check a client’s chart or file, and this may need to be done from her home. Prescription renewals are not always dealt with while she is with a patient or in the office. It may be by a telephone call to her from one of her staff.

99We also learned that she is paid an annual fee from the government per patient, and there are bonuses for certain procedures like immunizations, mammograms, PAP smears, and colorectal screenings. This bonus system is part of a preventative care system for enrolled patients. It is unknown how often a patient comes in. Mr. Carnegie was not aware of all the details of her method of pay. A list of all the doctors in her FHO shows that some have more patients than her, and some have less. We heard that some who have more rely on locums, who they have to pay, one or two days per week. We learned that her patient load has increased every year. Not all time with the students was included. In all, I feel I am unable to rely on the report when it was prepared without input from the wife or anyone in her clinic.

100The issue of entitlement to spousal support was a major area of dispute. I have considered the law, the submissions, and the evidence and I am of the view that the wife herein is entitled to spousal support. My reasons are as follows:

i. The evidence showed that the wife chose family medicine in part to have more flexibility for purposes of having and raising a family. She did not want to incur the additional residences that would be required in order to become a specialist. She was also guided in making this choice by the fact that both she and her mother had a condition, known as cervical dysplasia. The wife herein was diagnosed with this at the age of 28. Her mother had a hysterectomy at age 29 so the wife was anxious to start a family sooner, rather than later. She would have been pregnant with the parties’ first child at age 30. The evidence was that both parties wanted a family. ii. The husband chose a field that would keep him in school for a much longer time, but that would be more lucrative eventually. iii. Once the children started to arrive it is clear that the wife had the larger role in child care. This included taking the children to her office where she had the flexibility to breast feed them between patients. She chose a day care near her office in Brantford for the first two children. I accept the wife’s evidence that she did the majority of transportation for the children during this time. The husband said that he did it occasionally, but it was not disputed that the wife did most of it. iv. The parties do not agree on how extensive the husband’s role was once the wife moved her practice to Dundas, but it was not disputed that she lined up the children’s appointments and activities. It was pointed out in submissions that the wife had the necessary criminal record check to assist at the school, but the husband did not have one until after separation. There was also the matter of the husband’s car, which was too small to fit three car seats into. He said he switched cars in order to assist with transportation, but I did not have evidence of this happening often. v. We learned that both parties did not want to have a live-in nanny. They wanted to manage child care duties on their own. I cannot determine whether the husband’s comment, “my children have a doctor for a nanny”, was meant to be a compliment or not, but it seems indicative of the fact that the husband perceived the wife as the children’s main caregiver, or at the least the caregiver with more responsibilities. I accept the wife’s evidence regarding the sharing of the household and child care duties. She was precise in her description of what she did and the hours that the husband worked. He was training to be a cardiologist and she was managing a family practice, with hours that gave her flexibility for the children. This is the pattern that the parties had during the marriage. vi. A review of Section 15.2(4) of the Divorce Act is appropriate. This was a marriage of 11 years with three children. The functions of the parties during the marriage were that they both worked and helped out with chores and children. However, the wife reduced her work hours in order to assume a bigger role with child care. She increased her hours and patient load in a gradual way, as the children got older. There was no agreement in place. vii. I appreciate the husband’s argument that the facts of this case are similar to Calvert v. Stewart. I am not bound by that case however. I also note that the parties’ incomes were smaller and the gap between their incomes was less than in the case before me. The trial judge also noted that their total household available incomes would be similar after child support and extraordinary expenses were considered. I also am mindful that the trial judge in Calvert v. Stewart pointed out that the parties both worked in their chosen professions, which is similar to this case. However, I note that the wife chose family medicine in part, to make herself more flexible for child rearing. She was able to combine child care with family medicine in a way that would not likely have been possible if she had a career like the husband. There was a difference of $381,000.00 in their 2014 incomes, which was the last full year we had available as of trial. This was $542,000.00 for the husband and $161,200.00 for the wife. viii. There are distinctions with the cases provided by counsel for the wife. However there are some principles from these cases that are helpful. For example, a. In Cassidy v. McNeil it was noted that the wife would have benefited from the parties joint incomes. The wife herein would have anticipated an economic merger of the parties’ interests and her more compromised career path meets the threshold of entitlement to spousal support. b. In A.A.M. v. R.P.K. entitlement to both compensatory support and non-compensatory support was found. Both can be seen in the case before me. The wife had a disadvantage by the roles performed and the husband had an advantage, so compensatory support can be ordered. The non-compensatory nature of support is to address the disparity in income between the parties. c. A review of compensatory and non-compensatory support was described earlier in the Ontario Court of Appeal case of Roseneck v. Gowling. The following sentence applies to the case at hand; “the compensatory principle fits most comfortably the situation where as a result of having children, the parties have developed an interdependency and merger of their economic lives.” ix. I appreciate the husband’s argument that some of the cases referred to involved support recipients with health problems who were older, who were completely out of the workforce for a while, and who were married longer. Nevertheless, we have an 11 year marriage with three children, a wide difference in incomes, and a choice by the wife to begin her career in a reduced fashion to accommodate child care while the husband`s career advanced further. An economic merger was anticipated and the wife had a disadvantage upon the breakdown of the marriage. She is entitled in my view to both compensatory and non-compensatory support.

101There remains the issue of whether or not I should impute income to the wife regardless of any decision to not rely on the report of Mr. Carnegie. I am not inclined to do so.

102I notice that the wife`s total patient number has increased as follows:

January 31 2009 678 enrolled patients December 31 2009 777 enrolled patients April 2012 848 enrolled patients March 2013 852 enrolled patients April 2014 906 enrolled patients April 2015 917 enrolled patients November 2015 932 enrolled patients January 15 2016 925 enrolled patients, which is shown as 1175 when unenrolled patients are included

103This appears to be a growing practice and it is clear that as the children grew the wife increased her practice gradually.

104I do not accept the reasoning of the husband that we can take her income from the last year she described herself as part time and double it to get an income for full time work. The expression “part time” can mean many things. I cannot conclude that it is precisely half of what a person would make if they worked full time.

105It is anticipated that the wife’s practice will continue to grow on a gradual basis. The type of practice she had during the marriage was quite acceptable to the parties and it worked well for them and the family. I see no reason to say that her transition from part time to full time should have been faster.

106Any spousal support ordered can be left indefinite with annual disclosure of income.

107Since I am accepting the wife’s income as shown in her income tax returns, I will need to deal with child support before the quantum of spousal support is addressed.

108Both parties provided samples clauses for child support. Since the wife set them out year by year and used the agreed upon figures for the parties’ incomes, I will use her sample clauses for the years January 1st, 2013 to the present. Ongoing will be based on the parties’ estimated incomes for 2015 and 2016. The incomes were not finalized for 2015 as of the conclusion of trial and the 2016 numbers were not known. An adjustment may be needed. I am using the figures provided by the wife simply because it is worded in a way that was more helpful for the wording of an order.

109The child support is being paid by way of a set off since that is what the parties agreed to, given the equal time sharing that they have.

110Since the parties will now know more about their incomes than they did as of the end of trial, I will allow counsel to attend before me to make an appropriate change, if they wish to.

111A clause regarding extraordinary expenses will be included. The husband provided a detailed sample clause so I will use that.

112I am of the view that it is appropriate to commence spousal support as of January 1st, 2015.

113It is acknowledged that the husband paid approximately $62,500.00 in spousal support without the benefit of a tax reduction, from March 2012 to March 2013. If I were to commence spousal support as of 2012 or 2013, I would have to deal with a reduction for tax purposes. I believe that it would be appropriate and fair to commence support as of January 1st, 2015 for the following reasons:

• The sum of $62,500.00 was paid by the husband towards spousal support without a tax deduction for him. By not adjusting this amount for tax consequences it is like a larger contribution from the husband. The wife said she paid taxes on this amount but this was her choice.
• A large equalization payment was paid during the interim period.
• No motion for interim spousal support was brought and it appears that the wife managed without it during this time.
• Child support has been paid since separation based on a set off. This has most recently been in the amount of $5,475.00 per month.
• By starting in January 2015, the parties can refile their income tax returns unless they come to some other resolution and this will be convenient for both of them. I am not concerned that there will be a detriment to the wife for not calculating spousal support back to 2012 for the reasons set out herein.

114The parties’ financial statements show similar expenses but the wife’s included legal fees, which the husband also has to pay but he did not include it on his financial statement. Hers shows RRSP contributions that his did not and hers also included expenses for her parents’ condominium.

115The husband shows a greater net worth than the wife which is in part due to the fact that she has 2 mortgages (her home and the condominium), and he does not have any. They both have a significant net worth however. His net worth is shown as $1,966,464.76 and hers appears to be $1,668,595.50 ($2,391,059.43 of assets minus $722,463.92 of debts).

116The Spousal Support Advisory Guidelines (SSAG) calculations provided by the Applicant are helpful as she is the only party requesting spousal support on an ongoing basis.

117The parties’ incomes as shown for 2015 in the SSAG calculations are $542,000.00 and $161,800.00. The low range number has been requested by the wife as this leaves parties with 50% each of the Net Disposable Income (NDI). She requests $4,799.00 for 2015 and $3,999.00 for 2016.

118The two households do not have to be identical and I am not suggesting that the parties have to recalculate spousal support every year, but something close to the low range with equal net disposable incomes is fair and appropriate. I see no reason why the wife would ever have a higher percentage of the NDI if the parties continue to share time with the children. I am mindful that the husband has to pay a $400.00 premium every month in order to get the disability income that he has. I will use my discretion and order the sum of $4,650.00 per month for 2015 and $3,850.00 per month as of January 2016. This is not a precise calculation based on the cost of the premium, but it is a recognition that he has to pay it and it still leaves the parties in a close to equal position. It is anticipated that the wife will continue to work at least as much as she does at present.

119It is important to note that the expenses shown on the parties’ financial statements for children’s activities are very modest at present so the fact the husband is shown as having a higher proportionate share has little relevancy at the present time. It may in the future. Since I am leaving the parties in a similar position in NDI, the parties may end up sharing the extraordinary expenses equally as spousal support will need to be included in income.

120I considered leaving both child support and spousal support for 2016 based on 2015 incomes and not the 2016 estimated incomes. However, I used the wife’s estimated 2016 figures because:

a. By the wife’s calculations spousal support should be lower in 2016 so it seemed appropriate to allow for this now. b. I anticipate that counsel may revise the numbers on consent once they have my decision and if they have more information about 2015 and 2016 income than they did at trial.

A review of Section 15.2(6) of the Divorce Act is necessary. In finding that there is entitlement to spousal support and ordering the amount set out, I am of the view that these subsections have been met as follows:

a. There is an economic disadvantage to the wife due to the breakdown of the marriage. While together the parties pooled their resources and the husband’s income was much larger for the last several years of the marriage. This was due to the fact that he stayed in school a lot longer, while she worked and juggled the majority of child care. b. The parties share the children equally and agree to child support being paid by way of a set off. Spousal support will be ordered in a way that treats the parties equally, as both have similar child care responsibilities now. c. The order for spousal support will relieve the economic hardship incurred by the wife due to the breakdown of the marriage, wherein her income was substantially lower than her husband’s. d. The order I am making is not intended to help the wife out while she obtains economic self-sufficiency. She already has a career. However it promotes self-sufficiency in that it is based on her current income and with the anticipation that she will continue to work full time and increase her hours gradually. It has a compensatory nature in that she is receiving support despite the fact that she is gainfully employed. She was part of an economic merger and is being compensated for the years her income was lower due to child care responsibility and the fact that as a result of the child care responsibility her income may be lower for a long time.

121I will include the insurance clause suggested by the wife as this does not appear to be in dispute. I left out the word irrevocable however in case there is a material change in circumstances. I did not order both parties to provide insurance coverage as this was not specifically claimed by the husband. The wife indicated however that she has a policy in place for the benefit of the children.

122I will include an annual disclosure clause. The ones provided by the husband’s counsel are satisfactory (with the imputed income for the wife deleted). The husband’s proposed clauses mention corporate income. This is more of a factor for the husband but there may be modest corporate income or interest for the wife. I will include a provision for written submissions as to costs. I will allow a significant amount of time for this in order to allow counsel and the parties to negotiate this issue and in order to allow counsel and the parties to negotiate any changes to the order that they may agree to, now that they have full income details for 2015, and a better idea of what 2016 will look like.

123At the request of both counsel I used initials for the parties and the children. They will need to use full names in the actual order.

Final Order to Issue

Order #1

1. The Divorce is severed from the corollary relief and shall be dealt with by a separate order.
2. The pleadings shall be amended to show the parties as they are in the Certificate of Marriage, namely P.L.S. and M.J.R.
3. The Respondent shall pay child support for the three children of the marriage namely, K.R. born March 20th, 2001; W.R. born September 11th, 2002; and J.R. born March 15th, 2005, in the amount of $7,397.00 per month commencing January 1st, 2013. This amount is a set off, given that the parties share time with the children and they agree to a set off formula. It is based on the Applicant’s income of $155,350.00 in 2013 and the Respondent’s income of $669,000.00.
4. Commencing on January 1st, 2014 the Respondent shall pay support for the above named children in the amount of $5,475.00 per month which is based on a set off and the Applicant’s 2014 income being $161,800.00 and the Respondent’s 2014 income of $542,000.00.
5. Commencing on January 1st, 2015, the Respondent shall pay child support for the above named three children in the amount of $5,475.00 per month. This is based on a set off and the Applicant’s estimated 2015 income of $161,800.00 and the Respondent’s estimated income of $542,000.00.
6. The Respondent shall be given a credit in the amount of $210,997.00 for child support paid during the period of January 1st, 2013 to December 31st, 2015.
7. Commencing January 1st, 2016, the Respondent shall pay support for the above named three children in the amount of $6,077.00 per month which is based on a set off and the Applicant’s estimated income of $172,920.00 and the Respondent’s estimated income of $594,823.00.
8. By July 15th each year commencing, July 15, 2017 (and when ready in 2016) the parties will exchange personal income tax returns, personal notices of assessment, corporate financial statements and corporate notices of assessment for the prior year to determine what change there should be to child support payable or to the proportionate share of the children’s extraordinary expenses. The parties shall fully disclose to each other all income earned in the previous calendar year. The amount of support payable shall reflect the difference in the amount of support payable by each parent to the other for the support of the children based upon their incomes for the previous year. The change in support will take place on August 15th each year commencing August 15th, 2016 for the next 12 month period.
9. In determining the parties’ income, the income generated by their personal/professional corporations during the calendar year shall be included. Because the corporate income is included, then dividends paid out by the corporations to the parties will not be included in determining their income in order to avoid double dipping. Corporate income shall include all income generated by the corporations (after reasonable expenses) and shall include the corporations investment income (but not unrealized capital gains).
10. The Respondent’s disability income shall be disclosed and verified and that portion that is not taxable shall be grossed up to reflect a pre-tax value.
11. The parties shall by August 15th each year, commencing in 2017 (and when ready in 2016), determine the actual amount of child support that should have been paid in the previous calendar year. In the event there is a shortfall in the amount of child support paid the previous year or an overpayment in the amount of child support paid the previous year, an adjusting payment to reflect the underpayment or overpayment shall be made by the parent who has underpaid or been overpaid, said payment to be made by no later than September 15th. The first such adjustment shall take place when the parties are ready in 2016.
12. By July 15th each year, commencing in 2017 (and when ready in 2016), the parties will provide reasonable evidence, in writing, of the amounts they incurred for the children’s special or extraordinary expenses for the previous 12 month period. A party who has not contributed his or her proportionate share of the special or extraordinary expenses will immediately reimburse the other.
13. The parties shall share all special and extraordinary expenses related to the children in proportion to their incomes available for support. The parties’ proportionate shares shall be reviewed and adjusted each year in conjunction with the review of child support provided for herein. The parties shall provide notice to each other in advance of incurring any special or extraordinary expense. Only expenses which the parties agree to in advance shall be subject to proportionate sharing.
14. The Respondent shall pay spousal support to the Applicant in the amount of $4,650.00 per month commencing January 1st, 2015.
15. The Respondent shall pay spousal support to the Applicant in the amount of $3,850.00 per month commencing January 1st, 2016.
16. There shall be no order for spousal support for the period prior to January 1st, 2015 and no adjustment for support that was paid voluntarily for this period.
17. The parties shall continue to jointly administer the children’s Registered Education Savings Plan and they shall continue to be joint trustees of their trust fund.
18. The Respondent shall designate the Applicant and above named children as sole beneficiaries of his life insurance policy which is policy number 0496033639 held by MD Management for as long as a child support and/or spousal support obligation exists.
19. A Support Deduction Order shall issue.
20. Given that more information is available to the parties regarding their incomes since the trial was concluded, counsel may ask the Trial Coordinator for time before Justice McLaren if they wish to change any numbers on consent before taking out the order.
21. If counsel do not agree on how to handle the issue of costs, they may provide written submissions of no more than 8 pages in length plus any attachments as follows: (a) Applicant by October 25th, 2016 (b) Respondent by November 15th, 2016 (c) Any Reply by November 28th, 2016
22. If counsel agree to a different filing timetable they may do so, provided that a written consent setting out the new timetable is forwarded to Justice McLaren by November 28th, 2016.

Order #2

1. A divorce is granted.

McLaren, J.