COURT FILE NO.: 4115/15 DATE: 2017-08-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Rival Applicant

Ann L. Stoner, for the Applicant

- and -

Olga Rival Respondent

Sean Heeley, for the Respondent

HEARD: May 25, 26, 29, 2017

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. MADSEN

OVERVIEW

1Dr. Peter Rival, the Applicant, and Ms. Olga Rival, the Respondent, resolved all issues related to parenting and equalization, and a short Trial proceeded on issues related to retroactive and ongoing child and spousal support.

2The key issues at Trial were:

a) Whether Ms. Rival is entitled to spousal support;

b) The appropriate commencement date of any retroactive support as Ms. Rival did not plead retroactive support in her Answer;

c) What income should be used for Ms. Rival for spousal support, both on a retroactive and ongoing basis, as she has an impressive educational background but no work experience outside her husband’s dental corporation since the parties married in 1998;

d) Whether certain claimed business expenses should be added back to Dr. Rival’s income for support purposes;

e) The quantum of Dr. Rival’s child and spousal support obligations up to Trial and whether Dr. Rival adequately met those obligations (which includes consideration of certain expenses of the matrimonial home for a period after separation when Dr. Rival says Ms. Rival caused delay in the sale of the home);

f) What income should be used for Dr. Rival on a prospective basis for both child and spousal support, as he is 76 years of age and plans to wind down his work as a dentist, but where his retirement plans are as yet indeterminate and there is no evidence his income has as yet decreased; and

g) In light of the foregoing, what the ongoing child and spousal support arrangements should be.

3For the reasons set out below, I find that Dr. Rival does not owe retroactive child support; that he owes retroactive spousal support in the amount of $51,238; that ongoing child support and spousal support shall be based on Dr. Rival having an income of $153,449; that ongoing spousal support shall be based on Ms. Rival having an income of $25,000; and that spousal support shall be subject to a material change of circumstances, including upon Dr. Rival’s actual retirement.

WITNESSES AND CREDIBILITY

4Each party testified but presented no other witnesses. In addition, Dr. Rival produced an affidavit from his accountant, Ms. Stolpmann, with respect to his income. This was admitted at Trial on consent, without the need to call Ms. Stolpmann for cross examination.

5For the most part Dr. Rival testified in a straightforward manner, to the best of his recollection.

6I find however, that Dr. Rival tended to minimize the contributions of Ms. Rival during the marriage. He testified, for example, that Ms. Rival did not work for him at all after the parties moved to Ancaster, Ontario, and needed to be prompted by counsel to adjust his testimony in light of his accountant’s affidavit evidence confirming that Ms. Rival continued to perform book-keeping functions for him. He similarly minimized Ms. Rival’s work for the dental practice in Toronto prior to the move to Ancaster.

7Dr. Rival’s testimony was also somewhat opaque with respect to his business expenses deducted from his income. While he stated that he was focused on the clinical aspects of his practice and not the accounting aspects and was therefore not able to explain some of his business deductions (such as meals and entertainment, telephone, and advertising expenses), I found this difficult to accept as he also acknowledged having been self-employed for some 50 years. I find that he was deliberately vague about the treatment of these expenses.

8For the most part, I also find that Ms. Rival testified in a forthright, although sometimes confused manner. She answered relentless questions regarding her mother’s illness, her father’s illness and death, her subjective experience of a car accident in 2014, and why she was devastated by the separation, as openly as she could, notwithstanding the pain these questions quite clearly caused her. She did her best to explain why, from her perspective, it has not been possible for her to engage in any substantial paid employment since the separation and why she has not meaningfully looked for employment.

9Having said that, at various points she was unable to explain certain relevant issues. For example, she could not explain how she was able to travel to Russia and California given her testimony regarding her mother’s fragile state of health and need for care. She was unable to explain why she needed to stay in California for approximately three weeks following her father’s death, and what the care arrangements were for Daniel and her mother during this time. She also did not explain, to any degree of satisfaction, why, in light of her assertions regarding her psychological state, she did not tender medical evidence to support these claims, particularly in light of her testimony that she continues to receive psychological treatment. While she asserted that she could not afford to pursue this and didn’t have the assistance of counsel, in fact she has had counsel at numerous points over the life of the litigation.

BACKGROUND FACTS

10I make the following findings of fact:

11The parties were married on December 18, 1998, and have one child, Daniel Elijah Rival, born February 27, 1999 [“Daniel”]. Daniel is loved and adored by both his parents and it is clear they are both very proud of him.

12The parties separated on August 1, 2014, after a 15 ½ year marriage. Dr. Rival was 73 years old at the date of separation and Ms. Rival was 53 years old at the date of separation.

13Dr. Rival is a dental surgeon who practices as an independent contractor on a part-time basis out of Eastgate Dental in Stoney Creek, Ontario. He previously owned a dental practice in Etobicoke, Ontario which was sold in 2005/2006, following which the parties moved to Ancaster, Ontario in 2008. It has always been important to Dr. Rival to pursue graduate courses and continuing education related to his field.

14Dr. Rival hopes to retire by the end of 2017, but has not yet had discussions with Eastgate Dental about this or made formal arrangements. It is unclear what Dr. Rival’s income will be in retirement. Dr. Rival does not appear to have thought through how he will meet his expenses once he retires.

15Dr. Rival has some health concerns and testified that he is getting tired. He had back surgery in late 2014 and was off work until early 2015.

16Dr. Rival enjoys teaching and is open to potentially doing some teaching in his retirement although has no current plans or arrangements in that regard.

17Ms. Rival is originally from Russia, where she trained as a journalist. She came to Canada in 1991 to pursue an MBA at the University of Toronto, but completed only one semester of that program. Before the marriage to Dr. Rival, she completed a Translation Certificate in 1992/1993, and a Diploma in International Trade at Ryerson, in 1994. She worked for a time at MacKenzie Financial, for which she took a mutual funds course, and then worked at the Royal Bank in Hamilton, Ontario, earning approximately $30,000 per year. She started the Certified Financial Planner course but did not complete it as she became pregnant with Daniel. Ms. Rival stopped working for RBC before the parties’ marriage.

18During the marriage, while Dr. Rival operated his practice in Toronto, Ms. Rival worked on a full-time or close to full-time basis for his practice assisting with bookkeeping, maintaining supplies, and other aspects of the practice; after they moved to Ancaster and Dr. Rival was working as an independent contractor, she worked for him on a part-time basis doing administrative work until separation. Dr. Rival minimized Ms. Rival’s work for him describing it as “minor book-keeping” undertaken “infrequently.”

19During the parties’ marriage, Ms. Rival also completed a graphic design course.

20Ms. Rival did not work following separation until April 2016 when she found part-time work as a tennis instructor at a rate of $25 an hour for approximately 9 hours per week.

21When Daniel was born, the parties initially hired a nanny, and Ms. Rival continued to assist in Dr. Rival’s dental practice. However, when Daniel was about nine months old, Ms. Rival’s mother came to Canada on a permanent basis and lived with the parties until separation. She assisted with child-care, some cooking, gardening, and other domestic tasks. There was no evidence that Ms. Rival’s mother was paid for her services, nor that she paid room and board. Ms. Rival testified that her mother lived with the parties and shared in tasks as a family member.

22Ms. Rival was responsible, with the assistance of her mother for some tasks, for running the household. One of her roles was to organize house repairs as needed and to ensure that the interior as well as the exterior of the home was maintained. She testified that Dr. Rival’s needs were met and when he came home everything was always ready for him. Dr. Rival participated in parenting Daniel on weekends and evenings, although he acknowledged that he was also busy with work and continuing education.

23At or near separation, a series of events had a subjective impact on Ms. Rival. In early 2014, Ms. Rival and Daniel experienced a car accident during the winter, during which the car Ms. Rival had been driving was struck in a snowstorm while she was cleaning the windshield and Daniel was still inside the car. Ms. Rival testified, and I believe, that the accident had an effect on her. She was diagnosed with PTSD following the accident and has experienced panic attacks and anxiety attacks. Ms. Rival testified she felt unsupported by Dr. Rival after this incident, and indeed Dr. Rival testified that he didn’t notice much effect on Ms. Rival, didn’t know she was seeing a psychologist, and didn’t know she had experienced mental health challenges after the accident. Ms. Rival remains unable to drive and still sees a psychologist.

24Ms. Rival’s mother suffered a stroke and heart attack and was hospitalized in July 2014, and her health has been deteriorating since. The parties then separated on August 1, 2014, which from Ms. Rival’s perspective was unexpected.

25Subsequent to separation, Ms. Rival’s father, who resided in California, became ill. Ms. Rival made two trips to California in the fall of 2016. Her father then passed away in February 2017 and she made a further trip to California at that time. As the only child, Ms. Rival was responsible for dealing with the logistical arrangements following her father’s death.

26After separation, Dr. Rival moved out of the matrimonial home and Ms. Rival and Daniel remained in the home. Dr. Rival covered a range of expenses in relation to the home including mortgage, taxes, and utilities. He also paid for cell phones for Ms. Rival and Daniel, tutoring for Daniel, and a lease on Ms. Rival’s car. The parties do not quite agree on the amount of credit that Dr. Rival should have in relation to these expenses (either $88,634 or $101,132). For three months, he paid $1,302 per month directly to Ms. Rival, which was essentially a continuation of the practice during the marriage.

27Immediately upon the parties’ separation, Ms. Rival retained a lawyer who, on August 1, 2014 made a request for child and spousal support on her client’s behalf.

28Dr. Rival started proceedings on February 24, 2015. Ms. Rival served an Answer on April 8, 2015. In that Answer Ms. Rival claimed child and spousal support. She did not claim retroactive child or spousal support. On May 15, 2015, she served an Amended Answer in which she claimed custody of Daniel. She did not claim retroactive child or spousal support in her Amended Answer.

29Dr. Rival amended his pleadings on June 1, 2016 to seek imputation of income to Ms. Rival in the amount of $45,000 per year. In argument his counsel suggested Ms. Rival could earn between $40,000 and $70,000 per year. Dr. Rival candidly testified that he did not know what people with his wife’s background could earn.

30As noted, when Dr. Rival vacated the home in 2014, Ms. Rival and Daniel remained in the home. In his Application, Dr. Rival sought an Order for sale of the home.

31There were several interim Orders related to the readying for sale and sale of the matrimonial home, one of which also provided for interim support:

a) On September 22, 2015, Justice Lafrenière made an Order that the parties cooperate to complete required renovations and staging of the home, including taking steps to increase the joint line of credit. Justice Lafrenière did not order sale of the home.

b) On June 24, 2016, Justice Pazaratz ordered that the home be listed for sale on or after July 29, 2016. He ordered Ms. Rival to cooperate with the parties’ contractor and real estate agent in doing all repairs, renovations, and staging and showing of the home. Justice Pazaratz stated in his Endorsement; “I accept the Applicant’s basic premise that the Respondent has been stalling.” He fixed costs of the Motion at $2,800 plus HST payable to Dr. Rival. Justice Pazaratz also ordered Dr. Rival to pay child support in the amount of $913 per month and spousal support in the amount of $2,445 per month, on a without prejudice basis, subject to recalculation at Trial, and that Ms. Rival start paying 50% of the expenses of the home. This is the first Order for sale of the home.

c) On October 7, 2016, Justice Parayeski ordered that Dr. Rival have exclusive possession of the matrimonial home; that the Applicant’s signature on the listing agreement be dispensed with; and that Dr. Rival be permitted to proceed with the sale without the involvement of Ms. Rival, who was given four days to vacate the home. Ms. Rival was ordered to pay costs of $3,500 to Dr. Rival.

32Dr. Rival agreed that Ms. Rival cooperated to increase the joint line of credit following Justice Lafrenière’s Order dated September 22, 2017. Both parties signed the first listing agreement with Vince Capella, who was selected by Dr. Rival. Ms. Rival testified that the listing “went nowhere” because of the state of the house. She stated that there were holes in the wall from the removal of the TV, sinks falling off, towel racks falling off, and a collapsing back porch. Dr. Rival acknowledged that Ms. Rival hired a handyman and did some painting to ready the house for sale. Dr. Rival felt these efforts were inadequate and that the work should be redone. I find that on fuller the evidence available at Trial, which was tested through cross examination, Ms. Rival did not “stall” the sale of the house, although it was clear Dr. Rival wanted the sale to move ahead more quickly.

33Ms. Rival vacated the home subsequent to Justice Parayeski’s Order of October 7, 2016. Further repairs were done under Dr. Rival’s supervision.

34On April 7, 2017, the sale of the home closed. Each party received $200,000 from the proceeds of sale. Approximately $527,970.08 remains in trust at this time.

35The parties’ son Daniel has completed grade 12. The parties expect that he will start a program in computer science at the University of Toronto (Mississauga campus) in September 2017 and that he will reside away from home during the academic year when he pursues those studies.

36There is about $87,000 saved in an RESP for Daniel’s post-secondary education. The parties agree that this should be used to fund Daniel’s post-secondary education.

ISSUES, LAW, AND ANALYSIS

a) Entitlement to Spousal Support

37Dr. Rival argues that Ms. Rival has suffered no economic disadvantage as a result of the marriage or its breakdown and that she has no compensatory entitlement to spousal support. He further argues that Ms. Rival is capable of working and would not have need if she were working to capacity. He states that at the commencement of the marriage Ms. Rival had little by way of assets, but was employed with RBC earning $30,000 per year. Dr. Rival says he encouraged her to seek remunerative employment during the marriage and even paid for the graphic design course to encourage her to find work. He stated he was unable to persuade her to look for employment and that “you cannot force someone to work.” Dr. Rival characterized Ms. Rival’s absence from the paid work force as a unilateral choice on her part, and stressed that her diverse and extensive educational background would enable her to find employment in which she could earn between $40,000 and $70,000 per year, hence eliminating any needs-based argument for spousal support as well.

38I have no difficulty concluding, on the evidence of the parties, that Ms. Rival has shown an entitlement to spousal support both on a compensatory and needs-basis. The real issues relate to determination of income, quantum, duration, and commencement date, as set out below.

39Section 15.2(4) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, provides that the Court must take into consideration the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought, 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 the spouse or the child.

40Further, section 15.2(6) of the Divorce Act mandates that an Order 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 over and above the obligation apportioned between the spouses pursuant to subsection (8);

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

41As noted in Ludmer v. Ludmer, 2013 ONSC 784, cited by Dr. Rival, the Supreme Court has held that all of the stated objectives of spousal support must be considered since no single objective is paramount. Further, trial judges have significant discretion to determine the weight to be placed on each objective based on the circumstances of the parties. Ludmer, supra, paragraph 214. See also Moge v. Moge, [1992] 3 S.C.R. 813.

42Dr. and Ms. Rival were married for 15 ½ years. Dr. Rival testified that Ms. Rival left her employment before they married. Shortly following the marriage, Daniel was born, and Ms. Rival commenced work in Dr. Rival’s practice.

43While Dr. Rival minimized the extent of Ms. Rival’s services and efforts, I believe Ms. Rival’s evidence that she worked full time in the dental practice in Etobicoke, Ontario, until it was sold, and then part-time after Dr. Rival became a self-employed contractor. These were direct benefits conferred on Dr. Rival by Ms. Rival during the marriage. In addition, Ms. Rival, with the assistance of her mother, had the primary care responsibilities for Daniel, with Dr. Rival helping on weekends and evenings when he was not working or involved in post-graduate studies or continuing education. Ms. Rival’s evidence that she was responsible for the maintenance of the home, both inside and outside, was not challenged by Dr. Rival. I find that Ms. Rival was actively working for Dr. Rival in his practice (and later for him when he was a contractor) during the relationship and that the roles she played within the household helped to keep the family unit functioning. Dr. Rival’s statement that “you cannot force someone to work” is misplaced in the circumstances.

44I find that the roles Ms. Rival played during the marriage advantaged Dr. Rival, and as at the breakdown of the marriage, have disadvantaged Ms. Rival. She has conferred benefits on Dr. Rival through the roles she played in his practice, for him while an independent contractor, and in the home. Now, at the conclusion of the marriage, she has lost her “job” working for Dr. Rival, which is a direct disadvantage resulting from the breakdown of the marriage. She leaves the marriage with experience in the dental field, but in the context of having worked for her spouse, rather than for a third party employer. I find that the dissolution of the marriage has resulted in economic hardship for Ms. Rival.

45There is no question that Ms. Rival has an impressive educational background, as set out above. These will be important resources for her to draw upon as she re-establishes herself economically. Nevertheless, it is important to note that however impressive those credentials are, after many years of working in her husband’s practice, they are quite dated. Her translation certificate from 1992/1993 was over twenty years old at the date of separation. Similarly, her International Trade Diploma from Ryerson University was twenty years old at the date of separation. I heard no evidence that the work she performed for Dr. Rival was in any way related to Ms. Rival’s education before the date of marriage such that she could show potential employers recent experience in the fields for which she was trained. I believe her evidence that she would need to requalify if she wished to work in the industries in which she has training and education.

46As noted above, an award of spousal support should promote economic self-sufficiency. This factor is addressed below in a consideration of the quantum of spousal support.

b) Commencement Date for Retroactive Spousal Support

47There does not appear to be any issue between the parties that the appropriate date for the commencement of child support is August 1, 2014. Accordingly, this section addresses only the issue of the commencement date for retroactive spousal support.

48The parties disagree on the appropriate commencement date of any retroactive spousal support. Dr. Rival asserts that no retroactive spousal support should be payable as Ms. Rival did not plead “retroactive support” in her Answer. Ms. Rival claims spousal support from the date of separation as she had her lawyer send a letter on the date of separation requesting support, and in her Application and Amended Application claimed spousal support.

49I note parenthetically that support for the period from the date of the claim forward is not retroactive support. Rather is it is prospective spousal support. See MacKinnon v. MacKinnon, 2005 CarswellOnt 1536. The only period in question here which is truly “retroactive” is the seven-month period from the date of separation on August 1, 2014 to April 2, 2015 when Ms. Rival served and filed her Answer claiming spousal support.

50For the reasons below, on the facts of this case, I find that it is not appropriate to award spousal support before the date of the Application as it was not claimed in either the Answer or the Amended Answer.

51The question of whether it is necessary to specifically plead retroactive support was addressed by Justice Chappel of this Court in her decision of Thomson v. Thomson, 2013 ONSC 5500. Justice Chappel carefully reviewed the competing interests discussed by the Supreme Court of Canada in S.(D.B.). v. G.(S.R.), 2006 SCC 37 between certainty and flexibility in this area of the law, and concluded that:

…a party who wishes to advance a claim for child or spousal support for a period predating the date when proceedings were commenced… must include a claim for retroactive relief in their pleading…

Allowing a litigant to advance retroactive support claims at Trial without having included a specific request for such relief in their pleading would significantly disrupt the delicate balance between certainty and flexibility…

Thomson, supra at para 77, 78

52Justice Chappel stressed that allowing retroactive claims for support to proceed without those claims having been pled would undermine procedural fairness for the payor, since they would not know the specifics of the case they have to meet. She stated that retroactive support claims involve legal principles that are distinct in some respects from prospective support and require parties to lead specific evidence addressing factors set out by the Supreme Court of Canada in S.(D.B.), supra. She also noted that from the perspective of the administration of justice, allowing claims in the absence of a specific pleading can lead to last minute motions at the commencement of Trial or adjournment requests. She concluded: “The fundamental principle that litigation must be decided within the boundaries of the pleadings developed as a result of precisely these types of difficulties and challenges.” See paragraph 79. See also Rodaro v. Royal Bank, 2002 CarswellOnt 1047 at 60 and Nielsen v. Nielsen, 2005 BCSC 768 at paragraph 122.

53A concern in the case law is to ensure that a litigant has notice of the claim against him or her so he or she can know the case they have to meet and organize their case accordingly. It might be suggested that in this case Dr. Rival was, by virtue of the letter from Ms. Rival’s counsel dated August 1, 2014 (the date of separation) seeking child and spousal support, made aware of a claim for retroactive spousal support. I do not find that this is the case. Following the letter, Dr. Rival was paying for all of the expenses of the home, and for a short period made additional payments to Ms. Rival. When the Answer was served containing no claim for support retroactive to the date of separation, he would have been entitled to assume that at least until the Answer was served, Ms. Rival was satisfied with those arrangements. Once the Answer was served, however, seeking ongoing support, he could take no such comfort going forward.

54Ms. Rival cited two cases in support of her claim for spousal support commencing at the date of separation. Neither Brown v. Brown, 2007 ONSC 13703 nor [Schmuck v. Reynolds-Schmuck, 1991) address the issue of seeking retroactive spousal support in the absence of a pleading requesting same. Had the claim for retroactive spousal support been set out in Ms. Rival’s pleadings, the letter from counsel on August 1, 2014 would have been evidence that notice was given promptly for a claim for spousal support. However, in the absence of a claim in the Answer or Amended Answer, the appropriate commencement date for spousal support is the date of the Answer in which she sought spousal support.

55I would add that I am unable to accept the argument that Ms. Rival is not entitled to spousal support the date between the date the Answer was served and the date the Motion for support was brought in June 2016. (This would be prospective support from the date of the Answer, not retroactive spousal support.) Specifically, Dr. Rival suggested in his closing submissions that by not bringing a Motion for spousal support until June 2016, Ms. Rival had “tacitly accepted and been satisfied” with what Dr. Rival had been paying until that time. In the Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10, 2011 CarswellBC 240, the Court noted that interlocutory proceedings can tend to lengthen matters rather than expedite them. See Kerr, supra, at 216.

56On the basis of the foregoing, I find that the appropriate date for the commencement of spousal support is April 2, 2015, the date that Ms. Rival served her Answer. For ease of calculation below, I have used April 1, 2015 as the commencement date.

57Dr. Rival is of course entitled to credit for payments made, and this is addressed below.

c) Ms. Rival’s Income for Support Purposes

58The parties do not agree on what income should be used for Ms. Rival from the date of separation to the present for support purposes. For the reasons set out here, I find that it is appropriate to use Ms. Rival’s actual income until December 31, 2015; to impute an income to her of $15,000 per year from January 1, 2016 until Trial; and to impute an income of $25,000 to her for the purpose of prospective support calculations from June 1, 2017 onwards.

59Ms. Rival submits that her income for support purposes should be her actual income in each year since separation. Her earned income in those years was $0 in 2014; $0 in 2015; $4,210 for $2016; and an estimated $12,000 on a prospective basis. She states that the combined effect of the unanticipated separation, her mental health issues following the car accident in 2014, her mother’s illness and her own related caregiving responsibilities, and her father’s illness and death left her unable to search for work following the separation. She states that she has simply not been in a frame of mind to look for full time work given all that has happened. Further, she has not worked in the fields for which she was trained since before the marriage.

60Dr. Rival submits that given her impressive educational background, Ms. Rival should be well able to find paid employment earning between $40,000 and $70,000 per year. He stresses that he encouraged her to find work during the marriage and that it was her choice not to. He also points out that Mr. Rival produced no admissible medical evidence that would support her claims of being unable to work, and that she cannot simply rest on the assertion of same. He also adds that it is surely not his responsibility to pay support so that Ms. Rival can care for her mother, and that in any event, she must be less frail than Ms. Rival asserts, given that Ms. Rival has been able to travel to Russia and on multiple occasions to California since her mother’s heart attack and stroke. He states, essentially, that Ms. Rival has been unintentionally unemployed, and is now intentionally underemployed, and should be treated as if she is and has been earning income from employment, both retroactively and prospectively.

61Section 19 of the Child Support Guidelines governs the imputation of income for support purposes and provides as follows:

19. Imputing Income (1) – The Court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.

62Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.) is the leading case in Ontario regarding the imputation of income. In that case, Justice Gillese set out the following three-part test to be applied in considering a request to impute income:

1. Is the spouse intentionally underemployed or unemployed?

2. If so, is this required by his or her reasonable educational needs, or the needs of a child of the marriage, or arising from reasonable medical needs?

3. If the answer to # 2 is ‘no’, then the Court is to decide whether to exercise its discretion to impute income and if so, in what amount.

Drygala v. Pauli, supra, as summarized in Tillmans v. Tillmans, 2014 ONSC 6773, 2014 CarswellOnt 16487

63There is a duty to seek out reasonable employment possibilities that will maximize earning potential so as to meet the needs of one’s dependents. Thompson v. Thompson, 2013 ONSC 5500 (S.C.J.), as cited in Tillmans, supra at 54.

64The onus is on the party seeking to impute income to establish that the other party is intentionally unemployed or underemployed. The person requesting an imputation must establish an evidentiary basis upon which the finding can be made. Homsi v. Zaya, [2009] O.J. No. 1552 (Ont. C.A.) as cited in Tillmans, supra at 58.

65If a Court finds that a payor is intentionally underemployed or unemployed, it cannot arbitrarily allocate an imputed income. As set out in Tillmans, “The Court must consider many factors including age, education, experience, skills and health of the party; his or her past earning history…” Tillmans, supra at 67. The party seeking to impute income has an obligation to provide a rational evidentiary basis for the amount of income proposed.

66Where a failure to seek or find employment is argued to be due to medical issues, the party should reasonably put forward medical evidence to support that assertion. Brown v. Brown, 2007 ONSC 13703 (Ont. S.C.J.) at para. 28. See also Pacik v. Bilodeau, 2011 SKQB 240 where the wife asserted that she was unable to be employed partly due to a longstanding fibromyalgia condition. Justice Allbright stated in that case:

I have no objective information as to the potential ability or inability of Ms. Bilodeau to be employed, even in a part-time capacity. Ms. Bilodeau indicates that she suffers from fibromyalgia and I assume this is correct. However, I have no professional assessment as to the potential impact on her employability. The onus is on an individual seeking spousal support to demonstrate a basis of entitlement to it. Pacik, supra, at 41.

67As set out above, Ms. Rival has an impressive educational background, with multiple diplomas in a range of fields. There is no question that she is intelligent and capable. The bulk of her education, however, with the exception of the graphic design diploma which Ms. Rival believed she pursued in 2004 while the parties were still living in Toronto (now 13 years ago), is from before the marriage in 1998 and is over twenty years old. I have found that during the marriage, she worked for Dr. Rival doing administrative work outside the field of her education, first in his dental practice in Toronto, and then for him when he was an independent contractor. All of her most recent work experience was thus outside the fields for which she was trained before the parties married in 1998. Her experience working for Dr. Rival is important, and may assist her in finding further employment.

68Ms. Rival’s work for Dr. Rival ended when the relationship ended. It is quite reasonable in this context for there to be a transition period for Ms. Rival into new employment. It is reasonable that it would take some time for her to determine what her employment plan would be and to “catch up” to the new circumstances.

69Layered onto what would in any event be a reasonable need for a transition period arising from the end of Ms. Rival’s work for Dr. Rival, and her need to make a new employment plan at the conclusion of the marriage, is the series of events which Ms. Rival testified have affected her ability to not only find work but look for work since separation.

70I have little doubt based on her testimony that Ms. Rival’s subjective experience of the car accident and the illnesses of her parents and then death of her father have been difficult for her and she has not felt like herself. These add to what I find is in any event a need for a transition period to looking for and finding full-time employment. However, on the evidence, I do not find, in the circumstances, that they lengthen the transition period.

71Notwithstanding her testimony that she continues to see a psychologist, and continues to experience difficulties, Ms. Rival called no medical witnesses who could confirm either her diagnosis/ diagnoses, or her inability to either look for full time work or to work full time. While she produced a letter from Dr. Patricia Turner dated December 2, 2016, a family physician, regarding psychotherapy, she did not call Dr. Turner as a witness, and that letter was admitted on consent not for the truth of its contents but to confirm in a general sense that Ms. Rival has been receiving psychotherapy. There was no evidence that Dr. Turner is qualified to comment on Ms. Rival’s ability to work or to look for work.

72In addition, Ms. Rival produced a psychological assessment and treatment plan by Dr. Irina Trofimova which was completed in July 2014, nearly three years before Trial. That assessment was again admitted on consent not for the truth of its contents but to confirm in a general sense that there had been such an assessment following the car accident in 2014. The assessment is quite dated and cannot speak to Ms. Rival’s ability to work or to look for work from the date of separation to the present. Ms. Rival testified that she is still receiving psychological treatment, yet provided no updated medical report and did not call her psychologist as a witness.

73If Ms. Rival is claiming that there are medical reasons why she cannot work, she has an onus to provide expert evidence in this respect and she did not do so. This is particularly so where she testified that she is receiving psychological treatment and would have had ready access to that evidence. To produce a three year-old report and a short letter but not call the authors of those documents to testify leaves questions for the Court about whether that evidence would have in fact supported Mr. Rival’s own conclusion that she cannot work full time or look for full time work.

74Further, although Ms. Rival testified that her mother’s illness means that she cannot be left alone and requires constant attention, and that this has been an additional factor making it difficult for her to look for work, this may have overstated this to some extent given that Ms. Rival has been able to travel to Russia and California since separation, leaving her mother at home in Ancaster, Ontario for weeks at a time.

75I find in the circumstances of this case, which include Ms. Rival’s employment context during the marriage, her now-dated education, and the other factors set out above, that it is reasonable that Ms. Rival should have had a transition period since separation to look for and find employment. I find that from the separation on August 1, 2014 it would be reasonable that there be no imputation of income until December 31, 2015.

76From January 1, 2016 until May 30, 2017, I find that it is reasonable that income of $15,000 be imputed to Ms. Rival. I find that this represents part-time employment at somewhat more than minimum wage, which is appropriate given her employment background with Dr. Rival and the administrative skills she testified that she has used when working for him. On her own evidence, Ms. Rival worked full time for Dr. Rival for a considerable period performing administrative tasks in a dental practice, and then part-time using many of the same skills. $15,000 per year is reasonable in the circumstances.

77The parties have now been separated for three years and absent any admissible medical evidence supporting Ms. Rival’s testimony about her mental health, I find that any transition period to full time employment should be complete. I accept Dr. Rival’s submission that at this time income should be imputed to Ms. Rival on the basis of intentional underemployment and I agree that such imputation should be based on full-time employment.

78However, I do not agree that there is any basis for Ms. Rival’s income to be imputed at the level sought by Dr. Rival ($40,000 - $70,000), nor has Dr. Rival produced any rational evidentiary basis for an income in this range. The evidence is that Ms. Rival earned $30,000 per year before the parties married and that she worked exclusively for Dr. Rival during the marriage performing administrative tasks. In the circumstances, I find it appropriate to impute an ongoing income of $25,000 per year. This is slightly more than minimum wage, full time. She is currently earning $25 per hour teaching tennis about nine hours per week, for a total of about $12,000 per year. She should be able to earn a total of approximately $25,000 per year with the skills that she has testified that she has, if she turns her mind to diligently searching. Ongoing support set out below has been calculated on that basis.

d) Dr. Rival’s Income for Support Purposes

79A further issue to be addressed is Dr. Rival’s income for child and spousal support purposes, both retroactively and prospectively. The parties agree that the income that is determined to be the income for child support purposes is also the income for spousal support purposes.

80The parties are largely on the same page about how to calculate Dr. Rival’s income. They have agreed that the starting point for Dr. Rival’s income for support purposes is the funds actually taken out by him from his business in the relevant years, plus CPP, OAS, pension, dividends, interest, and capital gains.

81At issue is the narrow question of whether some amounts should be added back to Dr. Rival’s income on account of expenses deducted from his professional income which may have a personal component. In particular, Ms. Rival sought to add back expenses related to advertising and promotion, meals and entertainment, and 40% of his telephone expenses as shown on his financial statements based on the 2014 year. Ms. Rival did not seek to add back the value of the home office deduction or expenses related to travel.

82Section 19 of the Child Support Guidelines governs the imputation of income for support purposes and provides as follows:

19. Imputing Income (1) – The Court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(g) the parent or spouse unreasonably deducts expenses from income;

(2) For the purpose of 1(g), the reasonableness of an expense deduction is not governed solely by whether the expense is permitted under the Income Tax Act (Canada).

83The Supreme Court of Canada has held that payors must not arrange their financial affairs to prefer their own interests over those of their children. See S.(D.B.) supra at 37. Further, a parent will not be permitted to knowingly avoid or diminish his or her obligation to support his or her children. Wilson v. Wilson, 2011 ONCJ 103 at 20.

84In Wilson v. Wilson, supra, the Court stated as follows with respect to padding back certain business expenses:

….the Guidelines expressly provide in section 19(2) that the determination of whether an expense is reasonably deducted from a payor’s income is not governed by whether it is properly deducted for income tax purposes. Common expenses that may legitimately be deducted for income tax purposes, but personally benefit the payor to the detriment of his or her children include expenses for car, home office, travel and entertainment.

85A self-employed person has the onus of clearly demonstrating the basis of his or her net income. As stated in Wilson, supra, this includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes.

Such payors have an inherent obligation to put forward not only adequate but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established… The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to these deductions, failing which an adverse inference may be drawn.” Wilson, supra at 22, citing Whelan v. O’Connor, 2006 CarswellOnt 2581; Meade v. Meade, 2002 CarswellOnt 2670; and Orser v. Grant.

86In his oral evidence, Dr. Rival did not know whether he had any advertising or promotion expenses, stating he was not sure what was in that category. He acknowledged that he has a contract with Eastgate Dental only, and that he does not seek out work elsewhere. He could not explain why he would need to advertise. I find it appropriate to add back to Dr. Rival’s income for support purposes the amounts that he has deducted from his professional income on account of advertising and promotion.

87With respect to cell phone expenses, Dr. Rival testified that he does not have a home phone and that about 60% of his cell phone usage is for business use. Ms. Rival seeks to add back the 40% which would be personal and I find that this is reasonable. For 2015 there was a significant increase in Dr. Rival’s phone expense over 2014 (from $924 to $1,927), which he could not explain. This jumped again in 2016 to $2,703 which was also not explained. For 2015 and 2016, Ms. Rival therefore sought to add back all but the allowable expense from 2014 and I find that is a reasonable approach in the circumstances.

88With respect to meals and entertainment, Dr. Rival testified that there are about ten dentists at Eastgate Dental and that he takes them out for lunches and dinners to make sure he has a “wonderful” relationship with them. He acknowledged that his work is specialized but said that to maintain the referrals he needed to treat his colleagues accordingly. Dr. Rival’s testimony regarding how often he treated his colleagues was vague. He stated that he took colleagues out “maybe once a week” or “sometimes once every two weeks.” It was unclear why he needs to treat his colleagues given the specialized nature of his work within the Eastgate Dental practice. He did not suggest that his colleagues would use a different specialist if he did not take them out to lunch or dinner. Other than his unaudited financial statements, Dr. Rival provided no supporting documentation with respect to meals and entertainment which would confirm either the amounts sought to be deducted, who he took out for a meal or when he took that person out, and whether that person was indeed a referral source. He also could not explain the significant jump in his claimed meals and entertainment expense from $4,719 in 2014 to $11,031 in 2016. While he said that this increase resulted in increased specialized cases, even if this were the case, it did not translate into an increase in income, as can be seen below. In the circumstances I find that Dr. Rival has not met his onus to show that the expenses are reasonably deducted from his income for support purposes and that the amounts should be added back.

89I find that Dr. Rival’s income for support purposes for 2014 - 2016 is as follows:

a) 2014: Agreed income taken out of business per Accountant’s Affidavit: $118,308 OAS $6,677 CPP $11,708 Pension $2,344 Taxable Canadian Dividends $1,170 [1] Interest $1,497 Taxable Capital Gains $3,162 Other Income $2,681

Subtotal (Agreed) $147,547 Add back Advertising and promotion $3,177 Add back Meals and Entertainment $4,719 Add back 40% telephone expense $370

Total Income 2014 $155,813 Income per Child Support Guidelines (CSG) $158,654 [2]

b) 2015: Agreed income taken out of business per Accountant’s Affidavit: $151,771 OAS $6,787 CPP $11,919 Pension $2,547 Taxable Canadian Dividends $832 Interest $957 Taxable Capital Gains $9,092 Other Income $1,442 Other income $20

Subtotal (Agreed) $185,367 [3] Add back Advertising and promotion $1,410 Add back Meals and Entertainment $3,919 [4] Add back all but $554 allowed for 2014 $1,373

Total Income 2015 $192,069 Income per Child Support Guidelines (CSG) $200,932

c) 2016 Agreed income taken out of business per Accountant’s Affidavit: $113,716 OAS $6,879 CPP $12,063 Pension $2,674 Taxable Canadian Dividends $632 Interest $683 Taxable Capital Gains $1,147 Other Income $987

Subtotal (Agreed) $138,781 Add back Advertising and promotion $515 Add back Meals and Entertainment $11,031 Add back all but $554 allowed for 2014 $2,148

Total Income 2016 $152,475 Income per Child Support Guidelines (CSG) $153,449

In summary I find that Dr. Rival’s income has been as follows for support purposes:

Income	Child Support Guidelines (CSG) Income
2014	$155,813
2015	$192,069
2016	$152,475
2017 (per 2016)	$152,475

d) Retroactive Support Obligations and Credit for Payments Made

Support Obligations and Payments to the date of Ms. Rival’s Answer

90As noted above, the parties appeared to agree that Dr. Rival’s child support should be calculated from the date of separation. From the date of separation to the date of Ms. Rival’s Answer, I find Dr. Rival’s child support obligation to have been as follows:

Income	CSG Income	Table Amount	Total
2014	$155,813	$158,654	$1,327
2015	$192,069	$200,932	$1,640
Total

91From the date of separation to the date of Ms. Rival’s Answer, the parties agree that Dr. Rival paid $27,085 to or on behalf of and Ms. Rival and Daniel ($20,744 from August 1, 2014 to December 31, 2014 plus $6,341 [5] from January 1, 2015 to March 31, 2015). [6]

92It is clear that Dr. Rival met his child support obligation during this period. Additional amounts went towards the support of Ms. Rival. For the reasons set out above, I am not prepared to assess a retroactive spousal support obligation to determine an underpayment or overpayment during this period.

Support Obligations and Payments from April 1, 2015 to May 31, 2017

93The parties agreed that in assessing any spousal support obligations before Trial, the Court should use the mid-range under the Spousal Support Advisory Guidelines, and that the average of the net cost and net benefit of spousal support should be used, with retroactivity, if any, being calculated on a net basis.

94On that basis, combined with table child support from April 1, 2015, I find Dr. Rival’s net child and spousal support obligation to May 31, 2017 to have been $113,052 calculated as follows:

Dr. Rival’s Income per CSG	Ms. Rival’s Income	CS Table Amount	Spousal Sup (mid range, net amount)	Total
2015 $200,932	$0	9 m x $1,640	9 m x $3,760
		$14,760	$33,840	$48,600
2016 $153,449	$15,000 (imputed)	12 m x $1,289	12 m x $2,267
		$15,468	$27,204	$46,672
2017 $153,449	$15,000 (imputed)	5 m x $1,289	5 m x $2,267
		$6,445	$11,335	$17,780
Total Retroactive Obligation for Child and Spousal Support				$113,052

Payments Made by Dr. Rival from April 1, 2015 to May 31, 2017

95While having agreed on many aspects of the within litigation, the parties differed on how much credit Dr. Rival should have for payments made on behalf of Ms. Rival and Daniel from the date of separation. Dr. Rival asserted that he should have credit of $101,132 while Ms. Rival asserted that he should have credit for $88,634. These figures both included payments made from the date of separation to the date of the Answer which I have found totaled $27,085 and for which Dr. Rival has already received credit above. From April 1, 2015 then, Dr. Rival’s claim would be that he paid $74,047 on Ms. Rival’s behalf and Ms. Rival’s claim would be that Dr. Rival paid $61,549 on her behalf.

Payments Made from April 1, 2015 until July 31, 2016

96Dr. Rival argues that he should have credit for payments on Ms. Rival’s behalf totaling $41,021 for the period April 1, 2015 until July 31, 2016 while Ms. Rival argues that he should have credit for payments totaling $28,923. [7]

97The issue accounting for this difference of $12,098 relates to how the mortgage, property taxes, and property insurance should be treated for the period from September 2015 when Justice Lafrenière ordered that the parties cooperate to complete required renovations and staging of the home, including taking steps to increase the joint line of credit and until July 2016 when Justice Pazaratz ordered that the house be sold. Dr. Rival argues that for this period of time, Ms. Rival was delaying in getting the house ready for sale and not cooperating to get the house sold. Ms. Rival argues that many factors contributed to the delay in getting the home sold, including the substantial repairs that were required and listing with numerous different agents. Dr. Rival seeks credit for

98Justice Pazaratz noted in his Endorsement dated June 24, 2016 that Ms. Rival had been “stalling”. He ordered $2,800 in costs against her on that motion, notwithstanding that she was successful on the support aspects of that motion. She has therefore already been penalized to some extent in relation to her part in any delay in relation to the sale of the house.

99Dr. Rival was a 50% owner of the home. As such he continued to have an obligation, as an owner, to contribute to the carrying costs of the home, those being mortgage, property tax and property insurance, even if he felt that Ms. Rival was not acting as quickly as he would like or that the repairs were not to his standard. See for example B.(J.) v. M.(D.), 2014 ONSC 7410 at paragraph 153 in which Justice Horkins ordered the husband to pay “his 50% share” of the mortgage, property taxes, and insurance for a jointly owned home, where the wife occupied the home.

100I agree with counsel for Ms. Rival that if Dr. Rival wished to pursue compensation in relation to Ms. Rival’s occupation of the home to his exclusion while the home was being readied for sale, this is properly a claim for occupation rent. Dr. Rival did not claim occupation rent. See Greene v. Greene, 2017 ONSC 3007 in which occupation rent was denied in a case where the claim was not pled and not raised until Trial. Dr. Rival did not claim occupation rent at all, even at Trial, although this would have been the proper formulation for his claim with respect to the house expenses for the period in question.

101In any event, even if Dr. Rival had claimed occupation rent, I would not find this remedy to be appropriate in this case. This was not an “exceptional case” as the case law on occupation rent requires. Further, as in Ward v. Ward, 2011 ONSC 570, Dr. Rival left the matrimonial home of his own accord, and did not pay child or spousal support while Ms. Rival occupied the home. See also Grassie v. Grassie, 2013 ONSC 1490 at paragraph 174 in which a factor in not granting occupation rent was that the husband had not paid child and spousal support although he had paid the expenses of the home.

102I am also not able to find, as Dr. Rival alleges, that Ms. Rival was solely responsible for any delays in the sale of the home. Dr. Rival acknowledged that Ms. Rival cooperated to have the joint line of credit increased and that she took steps to have repairs completed as required under Justice Lafrenière’s Order. While those repairs may not have been to Dr. Rival’s satisfaction, the blame cannot be laid solely at Ms. Rival’s feet. She testified that she followed the process she usually followed when the parties were married when she organized repairs to the home. Further, I note, as did Ms. Rival’s counsel, that the September 2015 Order was not an Order for sale. The first Order for sale was Justice Pazaratz’s Order dated June 24, 2016.

103I note that Dr. Rival participated equally in the net proceeds of sale of the home (subject to adjustments if the retroactive spousal support amount is paid from the remaining proceeds of sale). While the Court was not provided with evidence regarding any increase in value from the date of separation to the date of sale, Courts have held that where there is an increase in value this may be a factor to consider with respect to any claim for occupation rent. See Ward, supra at para. 16.

104Accordingly, Dr. Rival shall receive credit for 50% of the payments made with respect to the mortgage, property taxes and property insurance (in addition to the other agreed upon credits) from April 1, 2015 to July 31, 2016.

105On the basis of the foregoing, Dr. Rival shall have credit for payments of $28,923 less an acknowledged payment by Ms. Rival for property taxes paid in June 2016 of $1,300, for a total of $27,623 on Ms. Rival’s behalf for the period April 1, 2015 to July 31, 2016.

Payments Made from August 1, 2016 until December 31, 2016

106There is a very minor difference in credits sought and acknowledged for the period from August 1, 2016 to December 31, 2016. Dr. Rival seeks credit of $17,505 while Ms. Rival is prepared to give credit of $17,608. On that basis, Dr. Rival shall have credit of $17,608 for the period from August 1, 2016 until December 31, 2016.

Payments Made from January 1, 2017 until May 31, 2017

107There is also a minor difference in credits sought and acknowledged for the period from January 1, 2017 until May 31, 2017. Dr. Rival seeks credit of $16,820 for that period while Ms. Rival is prepared to acknowledge credits of $16,318.

108At issue is whether Dr. Rival should have credit for 3.25 months or 4 months’ of house related expenses in 2017. Ms. Rival was prepared to give credit for 3.25 months, which accounted for house expenses until April 7, 2017, the day the sale of the home closed. Dr. Rival sought credit for 4 months on the basis that some bills in relation to house expenses came in after the closing of the sale. I find that Dr. Rival should have credit for expenses until the final house expense bills were paid and I accept his summary of same. However, in his calculations for 2017 (January 1 to May 31) he included mortgage expenses for 3.5 months – he should only have credit for mortgage expenses until the date the house sale closed, which would be 3.25 months. In the result, the appropriate credit Dr. Rival should receive for 2017 is $16,583.

Conclusion regarding Credits to Dr. Rival from April 1, 2015 to May 31, 2017

109On the basis of the foregoing, Dr. Rival shall have credit of $61,814 ($27,623 + $17,608 + 16,583 = $61,814) towards his total child and spousal support obligations of $113,052 for the period April 1, 2015 to May 31, 2017. This leaves a shortfall of $51,238 to be paid by Dr. Rival to Ms. Rival on account of retroactive spousal support.

e) Dr. Rival’s Prospective Income

110The parties do not see eye to eye on what income should be used for Dr. Rival on a prospective basis for both child and spousal support.

111Dr. Rival argues that his income for child support purposes, effective September 1, 2017, should be treated as $30,000 per year, on the basis of his intended retirement at the end of the year and his likely income from OAS, CPP, and from his investments. He also argues that that spousal support should terminate as at the date of the Trial. He notes that he will soon be 77, that he is tired, has health issues, and that he should be able to retire.

112Ms. Rival does not deny that given Dr. Rival’s age, he should be able to retire when he sees fit and that when he does his income will likely go down. However, she argues that spousal support should not decrease yet, as Dr. Rival has in fact not yet retired, was vague about his plans in that regard, and there is not yet any evidence that his 2017 income has decreased from his 2016 income.

113Given Dr. Rival’s age, I agree that as and when he retires and his income decreases, any spousal support, if any, should be based on his actual income in retirement. I accept that he wants to retire and this is reasonable in the circumstances. However, he has not done that yet and his plans to do so were unclear.

114This case is distinguishable from Schulstad v. Schulstad, 2017 ONCA 100 where the Court was satisfied that there was overwhelming evidence that the husband’s evidence was a certainty. In that case, the Court of Appeal stressed that the case was exceptional, and cautioned that generally, decisions should not be made based on changes which may or may not occur. The evidence in this case does not establish that Dr. Rival’s retirement or the timing of that retirement are a certainty.

115The difficulty with Dr. Rival’s position that his income should be treated as $30,000 based on planned retirement is that there was no evidence in the Trial that his income has actually decreased from the level it was in 2016.

116Given that I have found that Ms. Rival is entitled to compensatory spousal support, that the parties were married 15 ½ years, that Dr. Rival has paid support for only three years, and that I do not have evidence of a decline in income, I cannot, based on Dr. Rival’s age alone either find his income to be the $30,000 sought, or terminate spousal support as of May 31, 2017. However, as and when he retires, if his income materially declines, Dr. Rival would be entitled to seek a change in support based on a material change of circumstances.

117Based on Ms. Rival’s representation at Trial that she agrees that Dr. Rival should be entitled to retire, I would anticipate that on a Motion to Change arising from Dr. Rival’s actual retirement and decline in income, the change or termination of spousal support could take place on consent (once the change has been established with the appropriate supporting documentation concerning retirement and Dr. Rival’s income in retirement has been established).

118I have found above that it was appropriate to add-back certain expenses deducted by Dr. Rival from his income, in particular for cell phone expenses, meals and entertainment, and advertising. I rely on that analysis and have no evidence which would support departing from those add-backs for 2017. I also have no new evidence with respect to the other components of his income, such as CPP, OAS, dividend, and capital gains, and find it appropriate to rely on the 2016 amounts for 2017.

119In the circumstances I find Dr. Rival’s prospective income for support purposes to be the same as his 2016 income for support purposes, namely $153,449, calculated as set out in paragraph 89(c).

f) Ongoing Child and Spousal Support

120On the basis of the foregoing, I find that Dr. Rival shall pay prospective child and spousal support commencing June 1, 2017, based on his income for support purposes of $153,449, and based on an imputed income for Ms. Rival of $25,000.

Ongoing Child Support

121The parties, as noted, expect that Daniel will attend post-secondary studies away from home commencing in September 2017. The child support Order set out below therefore contemplates table child support during the summer months that Daniel is residing with Ms. Rival and no child support when he is not residing with Ms. Rival during the school year. Spousal support is adjusted contemporaneously with changes in child support.

Ongoing Spousal Support

122The parties agreed that in calculating retroactive spousal support it was appropriate to use the mid-range of the Spousal Support Advisory Guidelines and calculations above have been undertaken on that basis. On a prospective basis, Dr. Rival argues that there should be no spousal support based on his impending retirement and thus has not adverted to the appropriate range if spousal support were to be ordered. Ms. Rival has used the mid-range of the Spousal Support Advisory Guidelines in calculating ongoing spousal support.

123I find that it is appropriate, in the circumstances of this case and in light of the parties’ agreement to use the mid-range retroactively, to use the mid-range of the SSAG’s prospectively to determine spousal support. In reaching this conclusion I have also specifically considered the factors which may support an award of spousal support at the high end and the factors which may support an award of support at the low end, and find that in this case the factors suggest spousal support at the mid-range. I note that neither counsel made any submissions regarding appropriate location in the ranges. In the Order set out below, spousal support is adjusted to account for the changes in child support during the year as contemplated under paragraph 121.

124Spousal support is variable in the event of a material change of circumstances. Dr. Rival’s retirement shall constitute a material change. Dr. Rival may bring a Motion to Change spousal support immediately upon the change taking place and providing supporting documentation supporting same.

CONCLUSION AND ORDER

125Based on the foregoing, I make the following Order:

1. Dr. Rival shall pay $51,238 to Ms. Rival on account of retroactive spousal support within 30 days.

2. Commencing June 1, 2017 and until August 31, 2017, and for the months of May through August for each year if the child resides with Ms. Rival, Dr. Rival shall pay table child support for the child Daniel Rival born February 27, 1999 [“the child”] in the amount of $1,289 per month on the first day of each month, based on Dr. Rival’s income for support purposes of $153,449, with credit for payments made;

3. Commencing June 1, 2017 and until August 31, 2017, and for the months of May through August for each year if the child resides with Ms. Rival, Dr. Rival shall pay spousal support to Ms. Rival in the amount of $2,986 per month on the first day of each month, based on his income for spousal support purposes of $153,449 and Ms. Rival’s imputed income for spousal support purposes of $25,000, the mid-range of the Spousal Support Advisory Guidelines, and Dr. Rival’s payment of child support as set out in paragraph 2 of this Order, with credit for payments made;

4. Commencing September 1, 2017 and until April 30, 2018, and for the months of September through April each year, provided the child is residing away from home and attending post-secondary studies full-time, there shall be no table child support;

5. Commencing September 1, 2017 and until April 30, 2018, provided the child is residing away from home and no child support is being paid, Dr. Rival shall pay support to Ms. Rival in the amount of $4,257 per month on the first day of each month, based on his income for spousal support purposes of $153,449 and Ms. Rival’s imputed income for spousal support purposes of $25,000, the mid-range of the Spousal Support Advisory Guidelines, and no child support being payable under paragraph 4 of this Order;

6. The funds in the parties’ joint RESP shall be used to fund the special and extraordinary expenses incurred for the child’s post-secondary education, commencing in September 2017. Any shortfall shall be shared by the parties in proportion to their incomes, after accounting for the child’s reasonable contribution to same. Any balance remaining in the RESP once the child has completed his post-secondary studies shall be shared equally by the parties.

7. Child support, including the parties’ contributions, if any, to the child’s post-secondary expenses, is reviewable upon the completion of the child’s first degree to determine the parties’ obligations, if any, to contribute to the child’s further post-secondary education;

8. Commencing June 1, 2017, the parties shall share special and extraordinary expenses for the child. When spousal support is being paid under paragraph 3 of this Order, Dr. Rival shall pay 66% and Ms. Rival shall pay 34% of those expenses. When spousal support is being paid under paragraph 5 of this Order, Dr. Rival shall pay 57% and Ms. Rival shall pay 43% of those expenses.

9. For as long as child support is to be paid, the payor and the recipient must provide updated income disclosure to the other party by May 31 each year, in accordance with section 24.1 of the Child Support Guidelines.

10. In addition to the annual disclosure provided in paragraph 9 herein, each party shall provide the other with prompt disclosure, with supporting documentation, of changes to their respective income. Dr. Rival shall advise Ms. Rival promptly when he retires from employment and provide a copy of any documentation in that regard.

11. Unless the support Order is withdrawn from the Office of the Director of the Family Responsibility Office it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director who shall pay them to the person to whom they are owed.

12. The divorce shall be severed from the corollary issues and either party may proceed to finalize the divorce at his or her expense.

13. The balance of the claims in this proceeding shall be dismissed.

14. If the parties cannot agree upon costs, I will receive brief costs submissions and bills of costs within 30 days, with the parties each having a further 14 days to provide brief reply submissions if required.

126I thank counsel for their significant efforts to narrow the issues for this Trial and for their helpful submissions. I thank the parties for their respectful participation throughout the Trial.

Madsen, J. Released: August 21, 2017

1The figures shown here for dividends, interest, and taxable capital gains were reflected differently on Dr. Rival’s support calculations provided to the Court, but appear on that document to have inadvertently been based on the 2016 income tax return rather than the 2014 tax return. I have adjusted the figures here based on actuals in 2014 based the parties’ indication that the figures were agreed to. Counsel agreed to the components of income save and except the add-backs as set out above.

2The difference between “total income” shown above and income per the Child Support Guidelines relates to the lower taxation rate for dividends and/or capital gains under section 19(1)(h) of the Child Support Guidelines, reflected in both counsels’ calculations. Counsel appear to have agreed not to gross up the tax savings arising from the non-taxable capital gains. Ms. Rival’s counsel did not seek to have business expense add-backs grossed up tax.

3The figures in Dr Rival’s calculation for OAS, CPP, and other components of income appear to have been taken from Dr. Rival’s 2016 Income Tax Return rather than from the 2015 return. The correct figures from the 2015 Income Tax Return are used here. Again, counsel agreed on the components of income for support purposes, apart from the add-backs related to certain business expenses.

4This figure was shown as $2,884 on Ms. Rival’s calculation, but that figure appears to have been incorrectly transposed from the Dr. Rival’s 2015 Financial Statement ($2,884 was the figure for office supplies and lab fees; $3,919 was the figure for meals and entertainment). I have used the correct meals and entertainment figure here.

5This figure includes Ms. Rival’s share of the following expenses: mortgage, hydro/ water, heat, property tax, car insurance, property insurance, cell phone, home phone, internet, and traffic ticket.

6The parties agree that in 2015 Dr. Rival paid for a traffic ticket incurred by Ms. Rival in the amount of $350, and they agree that he should have credit for this. I was not provided with evidence as to when in 2015 this was incurred. I have treated the amount as having been incurred in the first three months of 2015 and included it in the $6,341 paid by Dr. Rival on Ms. Rival’s behalf during this period.

7These figures are after accounting for $6,341 referred to in paragraph 91, which relates to the period from January 1, 2015 until March 31, 2015.