CITATION: Regisford v. Regisford, 2017 ONSC 489

COURT FILE NO.: FS-16-86157-00

DATE: 2017-01-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

VIDOLL AUGUSTINE REGISFORD

Lance Carey Talbot, for the Applicant

Applicant

• and -

LORAINE MARCIA REGISFORD

Adam N. Black, for the Respondent

Respondent

HEARD: January 17, 2017, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

1The Applicant, Vidoll Regisford, was laid off from his employment at Purolator on November 9, 2016. Four months earlier, he had consented to a temporary and without-prejudice order of Justice André of this Court, which required him to pay spousal support to Ms. Regisford in the amount of $5,000 per month, based on the annual income that he earned at Purolator. A month after he was notified of his lay-off, and while still negotiating with Purolator concerning the terms of his severance, Mr. Regisford made the present motion to terminate the spousal support which he was required to pay to Ms. Regisford by reason of Justice André’s Order. He argues that his spousal support obligation should be terminated on two grounds: the reduction of his own income owing to his lay-off, and the fact that Ms. Regisford, having being terminated in October 2015 from her 25 year employment with the City of Toronto, has failed to secure new employment in the ensuing year.

2This motion requires the court to determine whether a temporary and without-prejudice order for spousal support should be terminated in these circumstances or, as Ms. Regisford contends, whether the motion is premature, owing to the fact that the parties’ income will continue to be what it was when Justice André made his Order until May 2017, when Mr. Regisford will cease receiving severance payments from Purolator, and Ms. Regisford’s grievance of her dismissal will be determined.

BACKGROUND FACTS

The parties’ marriage and separation

3Mr. Regisford is 53 years old; Ms. Regisford is 51. The parties were married July 4, 1987, and separated after nearly 27 years on December 31, 2014. They have three children who are now adults and self-sufficient.

Mr. Regisford’s financial employment and income history

4Mr. Regisford was employed throughout the parties’ marriage, with a few interruptions of relatively short duration. His employment history for the past 15 years has been as follows:

a) From 1987 to 1998, he was Community Services Coordinator with the Metropolitan Toronto Housing Authority.

b) From 1998 to 1999, he was Vice President of Operations for Catt Building Services.

c) From 1998 to 2000, he was Department Head, Community Liaison, for Humber River Regional Hospital.

d) From 2000 to 2006, he was Senior Manager for Community Housing for the Toronto Community Housing Authority.

e) From May 2006 to September 2011, he was Vice President of Missions, Human Resources, and Employment Services for Goodwill Industries, where he earned $130,000.

f) From September 2011 to September 2015, he was Director and Senior Manager of Partnerships for George Brown College, where he earned $119,170.

g) From November 2015 to November 9, 2016, he was National Manager for Diversity and Inclusion for Purolator, where he earned $115,000.

5Due to financial circumstances, Purolator eliminated Mr. Regisford’s position on November 9, 2016. It initially offered him an 18.8 week severance package that would last until March 20, 2017, but on December 20, 2016, Mr. Regisford negotiated a continuation of his severance until May 10, 2017. His pay during his severance period is $9,000 per month.

6Additionally, Mr. Regisford is due to receive an Annual Incentive Plan payout for 2016 until sometime in 2017. The amount of the payout has not yet been determined.

7Mr. Regisford holds degrees of Ph.D. degree in Counselling, Master of Arts in Adult Education and Community Development, and a Bachelor of Arts in Sociology. He is a registered psychotherapist and at the time of his employment with Purolator, operated a psychotherapy counselling business called Knowledge Solutions, from which he continues to derive income.

8Mr. Regisford’s psychotherapy business is based on referrals from current and past customers. His gross income from Knowledge Solutions has varied from 25,000 in 2014 to $50,000 in 2012. In 2015, it was $40,985.06. That year, Mr. Regisford reported his net income from the business, after deducting expenses, as $14,811.50. He acknowledges that a reasonable deduction for expenses, for purposes of a spousal support calculation, would be 10%, or approximately $4,100. If the excess deducted expenses of approximately $20,000 were grossed up by 25% and added to his (net) income, Mr. Regisford’s income from self-employment in 2015 was $40,000.

Ms. Regisford’s employment and income history

9Ms. Regisford was employed by the City of Toronto for 27 years, where she case managed welfare cases. She was dismissed from her employment on November 13, 2015, and did not receive a severance package.

10Ms. Regisford filed a grievance with her union in respect of the termination of her employment. An arbitration hearing in respect of that grievance has been scheduled to take place on May 17, 2017.

11Following her dismissal, Ms. Regisford’s only source of income, apart from spousal support, was Employment Insurance benefits in the amount of $524 per week. These benefits have ended.

12Ms. Regisford holds a diploma in Social Work from Humber College, and degrees in Public Administration from Ryerson University, and Bachelor and Master of Science in Education. She is also licensed to teach in Ontario and in the United States. She has written two books related to her interest as a Life Coach and in 2010, registered a business under the name “Life Matters”, which remained dormant until she was dismissed from her position with the City of Toronto.

13Ms. Regisford states that she has made diligent efforts to secure alternate employment but that these efforts have been unsuccessful. She states that she visited the City of Brampton Entrepreneurship Office, participated in Pro Bono speaking events for the Region of Peel Youth Challenge and the Girls of Destiny Program, and has regularly visited the Employment Insurance Office and COSTI Immigrant Services to review their job banks, and has endeavored to raise her profile and thereby promote her “Life Matters” business. Ms. Regisford states that she has submitted applications for employment and she has produced approximately 21 cover letters that she sent to prospective employers since she was dismissed from her position at the City of Toronto.

Judicial proceeding

14Mr. Regisford commenced the present proceeding by an Application issued April 19, 2016, in which he claims a divorce, equalization of net family properties, exclusive possession of the matrimonial home, and sale of family property. Ms. Regisford delivered an Answer on June 3, 2016, in which she claims spousal support and child support, equalization of net family properties, and exclusive possession of the matrimonial home and its contents.

15The parties attended a Case Conference with Justice André on July 13, 2016. They consented to an Order at that time which provided that, on an interim and without prejudice basis, Mr. Regisford would pay spousal support to Ms. Regisford in the amount of $5,000 per month beginning July 15, 2016, which Ms. Regisford would declare for income tax purposes and Mr. Regisford would claim as a deduction. The Order further provides that each of the parties is to contribute 50% of the monthly mortgage expense, net of rental income, of three properties which they own, including the matrimonial home and the home where Mr. Regisford now resides. The Order additionally required the parties to exchange financial disclosure.

16On December 21, 2016, a month and a half following his lay-off from Purolator, Mr. Regisford made the present motion to terminate his spousal support obligation.

ISSUES

17The motion calls requires a determination of the following issues:

a) Should the temporary and without-prejudice spousal support order made by Justice André, on consent, on November 13, 2016, be terminated?

b) If so, is Ms. Regisford entitled to further spousal support from Mr. Regisford and, if so, in what amount?

PARTIES’ POSITIONS

18Mr. Regisford argues that his spousal support obligation should be terminated based on the reduction in his income that will result from his lay-off from Purolator and on Ms. Regisford’s continued unemployment, which he submits is intentional and voluntary.

19Ms. Regisford argues that the motion to terminate spousal support is premature while Mr. Regisford continues to receive income from Purolator and from his self-employment that is at least equal to what it was when the parties consented to the Order by Justice Andre, and until Ms. Regisford’s grievance of her dismissal from her employment with the City of Toronto is arbitrated.

20Ms. Regisford further argues that if the court concludes that the issue of spousal support should be determined anew at this time, she is entitled to spousal support in a greater amount, based on the parties’ current incomes, as a determination of their incomes after May 2017, when Mr. Regisford’s severance ends and Ms. Regisford’s grievance is arbitrated, would be speculative.

ANALYSIS AND EVIDENCE

a) Is the motion premature?

21This court, in Ceho v. Ceho, in 2015, reviewed at some length the status of a temporary and without-prejudice order in the context of custody and access.¹ I concluded:

97The requirement that a party demonstrate a “material change of circumstances”, then, does not apply where the previous order was made on a temporary and “without prejudice” basis. Such orders are intended to remain in effect only until a full hearing of the motion for a temporary order, when they will be changed by the written agreement or court order that ultimately disposes of the motion. Such a “without prejudice order” is made in contemplation of a further order, based on a more complete evidentiary record.

22In the present case, the court must consider whether, even absent a presumption in favour of the present order, there is any basis for making a different order, based on the evidence currently available. The parties’ consent order is not presumptively correct, but is the default which they agreed would prevail until there is an evidentiary basis for making a substantially different one.

Ms. Regisford’s entitlement to spousal support

23Section 15.2 of the Divorce Act governs both interim and final spousal support orders. Section 15.2(4) sets out factors the court must consider when making an interim or final order for spousal support. It provides:

15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

24The objectives of an order for spousal support apply to both interim and final orders. They are summarized in s. 15.2(6) of the Act. That section provides:

15.2 (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should,

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

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

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

25The importance of each of the factors outlined above varies from case to case. This necessitates a contextual approach. In Driscoll v. Driscoll, Lemon J. enumerates a list of principles governing interim spousal support:

(1) On applications for interim support, the Applicant’s needs and the Respondent’s ability to pay assume greater importance;

(2) An interim support order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to separation, if the payor’s ability to pay warrants it;

(3) In motions for interim support, the court does not embark on an in depth analysis of the parties’ circumstances, which is better left to trial. The court achieves rough justice at best;

(4) The courts should not unduly emphasize any one of the statutory considerations above others;

(5) On motions for interim support, the need to achieve economic self-sufficiency is often of less importance;

(6) Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;

(7) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

(8) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.²

26Applying the above principles to my contextual analysis, I find that Ms. Regisford has made out a prima facie case for entitlement. My determination of her entitlement is based on her need and Mr. Regisford’s ability to pay. The amount of support that the parties consented to before Justice André is within the range suggested by the Spousal Support Advisory Guidelines (the “Advisory Guidelines” or “the Guidelines”) and allows Ms. Regisford to live at a similar level as before the parties’ separation, to the extent that Mr. Regisford’s ability to pay warrants it.

Criteria for Entitlement – Ms. Regisford’s needs

27I will deal with each of the relevant factors and objectives, mindful of the admonition that no one objective predominates; rather, all four objectives must be balanced in the context of the circumstances of the particular case.³ After this, I will balance the considerations that emerge to determine whether the consent Order of Justice André still reflects an appropriate quantum of support.

(i) Factors: 15.2 (4)

1. 15.2 (4)(a) Length of the cohabitation

28The “condition, means, needs and other circumstances of each spouse” includes the length of the parties’ cohabitation. I take into consideration that Mr. and Ms. Regisford were together for 27 years. Ms. Regisford is 51 years old. She has also been in the employ of the same employer for 27 years. It is likely that her need for spousal support will continue until she is either restored to her previous position by the arbitration of her grievance, or finds suitable alternative employment.

2. 15.2(4)(b) Functions performed during cohabitation

29It is not in dispute that Ms. Regisford assumed primary responsibility for the household and the children during the marriage. Mr. Regisford states that he was also involved in the children’s lives and this also is not in dispute. However, the greater time that Ms. Regisford devoted to the children’s care, as their primary caregiver, is reflected by the fact that the amount of Ms. Regisford’s income, even before her dismissal, was less than half that earned by Mr. Regisford.

30After Ms. Regisford’s first miscarriage, she became pregnant with twins four years into the parties’ marriage. It was a high risk pregnancy. Within two years of the twins’ birth, she gave birth to the parties’ third and last child.

31Mr. Regisford continued to work, including part-time in the evenings, and attend school while Ms. Regisford stayed home and cared for the children. After the birth of the parties’ third child, Ms. Regisford worked part-time for 1.5 years while she raised the children, helping to reduce childcare expenses for 3 children under the age of 3 years. Thereafter, she returned to full-time employment outside the home.

32Ms. Regisford returned to part-time employment when the parties’ youngest daughter, Danielle, was 8 years old. Danielle had to change schools from French immersion to an English program, and experienced difficulty with the transition. Ms. Regisford worked part-time to provide additional support for Danielle by volunteering in her new school and being more available after school and for after-school activities for all three children.

33Throughout the marriage, Mr. Regisford was able to focus on his career, and Ms. Regisford supported his efforts. When the parties separated, Ms. Regisford earned $67,500 per year, and Mr. Regisford acknowledges earning $142,000, at least until his severance ends.

3. 15.2(4) Other Circumstances

34Mr. Regisford argues that Ms. Regisford is intentionally unemployed. He says that the 21 covering letters she has produced averages, over the 14 months since she was dismissed, to little more than one letter per month. The number of applications Ms. Regisford has submitted should not be viewed in a vacuum. She is 51 years of age and has been employed by the same employer for 27 years. Her age and range of experience necessarily limit the employment that would be suitable for her. While Mr. Regisford argues that Ms. Regisford cannot be so highly selective as to refuse the only employment that is available to her, it would be unreasonable, in my view, to expect that Ms. Regisford should seek a position far below her qualifications and income earning capacity while the arbitration of her grievance, through which she hopes to secure a return to her previous position, is pending. Such a course could do more harm than good either to the prospects of a successful outcome of her arbitration or to her prospects of securing employment that is equivalent to the work she has performed in the past and that will generate similar earnings.

35I now turn to consider the objectives set out in s. 15.2(6).

(ii) Objectives: Section 15.2(6)

1. 15.2(6)(a) - Economic advantages or disadvantages from the marriage or its breakdown

36The concept of economic advantage or disadvantage arising from the marriage is the foundation for the principle of compensatory support.⁴ In the present case, the parties formed a relationship of financial interdependence when they began having children and assigned primary responsibility for their care to Ms. Regisford. This division of labour enabled Mr. Regisford to enhance his educational qualifications over the course of the 16 years it took him to complete his studies on a part-time basis, while he maintained full-time employment. There can be no doubt that the marriage and the division of labour that the parties arrived at within it, resulted in an economic advantage to Mr. Regisford and a disadvantage to Ms. Regisford.

37Ms. Regisford has also suffered an economic disadvantage from the marriage breakdown, which was compounded by the fact that she was dismissed from her employment within a short time after. Within a very short time, her household income was reduced by her employment income dropping from $67,500 to $19,388 that she received from Employment Insurance ($524/week for 37 weeks), and then nothing, and the support she received from Mr. Regisford dropping from an equal share of his $142,000 to the spousal support of $5,000 per month she received from Mr. Regisford.

2. 15.2(6)(c) Economic hardship

38It is also necessary to consider whether Ms. Regisford suffered economic hardship from the marriage breakdown. There appears to be ongoing uncertainty about whether ‘hardship’ refers to an inability to meet basic needs, or should be more liberally interpreted to refer to an inability to meet the recipient’s needs considered in their context.⁵

39In this case, Ms. Regisford has suffered “hardship” by reason of the reductions in her household income referred to above. There can be no doubt that she has suffered a significant reduction in her standard of living.

40While it may be preferable to consider hardship in the context of the particular parties, I need not determine that issue at this stage. The circumstances of the parties may change between now and the time of trial, and the trial judge will be better situated to make a finding as to whether economic hardship has resulted from a reduction in Ms. Regisford’s standard of living.

3. 15.2(6)(d) Self-sufficiency

41In Hotte v. Robertson, MacDougall J. set out a four-step analysis to determine the parties’ needs and means on an interim motion for support. He stated:

In reviewing the needs of the Applicant, the motions judge was advised that Ms. Hotte was not employed and was receiving government assistance and that her ability to earn income was limited as she had not been employed outside the home for a considerable period of time.

The court should not, at an interim application stage, place too much emphasis on the submission by the payor spouse of the dependant spouse’s failure to pursue self-sufficiency. It is apparent that Ms. Hotte has an obvious need and her proposed budget is a relatively modest budget.⁶ [Emphasis added]

42The principle that MacDougall J. articulated above was followed by O’Connor J. in Ferreira v. Ferreira,⁷ and by Platana J. in Wilson v. Wilson.⁸

43While the objective of self-sufficiency is a factor which must be considered whenever determining the appropriateness and quantum of spousal support under the Family Law Act, Ms. Regisford’s failure to achieve self-sufficiency is not a significant factor in the determination of her entitlement at this interim stage of the proceeding.

44Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”. As the Court of Appeal pointed out in Fisher v. Fisher, self-sufficiency, with its connotation of economic independence, is a relative concept. It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation and could reasonably anticipate afterward. It requires consideration of:

• The parties’ present and potential incomes;

• Their standard of living during cohabitation;

• The efficacy of any suggested steps to increase a party’s means;

• The parties’ likely post-separation circumstances (including the impact of equalization of their property);

• The duration of their cohabitation; and

• Any other relevant factors.⁹

45The Court of Appeal stated in Linton:

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained.¹⁰

46L’Heureux-Dubé J. stated in Moge: “The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”¹¹

47Although the doctrine of spousal support, which focuses on equitable sharing, does not guarantee to either party the standard of living enjoyed during the marriage, this standard is still relevant to support entitlement.¹² Furthermore, great disparities that would result in the spouses’ respective standards of living in the absence of support are often a revealing indication of the economic disadvantages inherent in the role that one of the parties assumed during the marriage.

48Ms. Regisford’s financial dependence on Mr. Regisford increased when her employment was interrupted during their children’s births and early up-bringing, while Mr. Regisford completed his educational qualifications and obtained management experience in the work-force. There is no reasonable prospect that Ms. Regisford will achieve a standard of living similar to that which she and Mr. Regisford shared before their separation, and that Mr. Regisford has continued to maintain for himself, to a greater degree than she, since the parties separated.

49The goal of self-sufficiency for Ms. Regisford is not practicable at the present time, having regard to her dismissal from her long-term employment, at least until her grievance of her dismissal is arbitrated or she is able to secure suitable alternative employment.

50In Thomas v. Thomas, it was held that the onus was on the wife to establish that she was not intentionally under-employed.¹³ In considering the capacity of the wife in Thomas to contribute to her own support as required by s. 33(9)(c) of the [Family Law Act],¹⁴ Quinn J. indicated that the spouse seeking support bore “an evidentiary responsibility, not necessarily to show that reasonable efforts have been made to become self-supporting, but to establish that some reasonable steps have been taken”. In that case, the wife did not work, and the judge imputed income to her on the basis that she had not made adequate efforts and had failed to present a plan for her own support.

51In Mann v. Mann, Herman J. distinguished the Thomas case on the basis that the issue was not one of underemployment but whether reasonable efforts had been made to become self-supporting.¹⁵ The evidentiary onus in Thomas, he said, was to establish “that some reasonable steps have been taken”. I am satisfied, in the present case, based on the evidence reviewed above, and in the circumstances facing Ms. Regisford, that she has taken reasonable steps.

52Having regard to Ms. Regisford’s age at the time the parties separated (49) and the duration of their marriage (27 years), the Advisory Guidelines formulae suggest that Ms. Regisford may be entitled to indefinite spousal support. The court must, in addition to the formulae, consider the following:

a) Entitlement;

b) Location with the range;

c) Restructuring;

d) Ceilings and floors;

e) Exceptions; and

f) Other miscellaneous issues.¹⁶

53The question for the trial judge in the present case will be to determine if and when it is reasonable to expect Ms. Regisford to adjust her standard of living to one that is commensurate with her own income-earning ability. The answer will depend on a balancing of all the objectives and factors, in the context of the circumstances that exist at the time of trial.

4. Summary of objectives

54In summary, Ms. Regisford is a 51 year old spouse, separated on December 31, 2014, after a long-term marriage, who has suffered an economic disadvantage arising from the marriage by having assumed child care responsibilities and household duties in a way that compromised her career to the advantage of her husband. Her inability to achieve a greater degree of self-sufficiency at this stage, having regard to the marital standard of living, her dismissal from long-term employment, and the pending arbitration of her grievance of that dismissal, do not disentitle her to spousal support at the present time and are not likely to do so at trial.

55For the foregoing reasons, I find Ms. Regisford to be entitled to receive interim spousal support from Mr. Regisford. I will now turn to consider the amount of support to be paid. This inquiry must begin with a consideration of Mr. Regisford’s income.

b) Amount of spousal support

i) What is Mr. Regisford’s income for purposes of spousal support?

56Section 16 of the Federal Child Support Guidelines states:

16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

57As set out in Bak v. Dobell (2007), income for support purposes is presumptively the payor’s income as it appears on line 150 of his income tax return.¹⁷ This restricts the definition of presumptive “income” to income that is subject to taxation.

58Section 17(1) of the Federal Child Support Guidelines states:

17. (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

59The presumptive income for support purposes is the payor’s income as it appears on line 150 of his income tax return. The onus is on the payor to justify any deviation from the s. 16 method of determining income, such as by averaging the last three years.¹⁸ In this case, Ms. Regisford was not asking that the Court deviate from the s. 16 method.

60Mr. Regisford’s income, for the purpose of determining his support obligation, is his actual income. Justice Corbett, in Walsh v. Walsh, (2008), concluded that severance should be included in income for the purpose of calculating child support. He stated:

Typically, severance and other termination payments are intended to cushion a departing employee from the loss of employment income during the time it takes to find another job. These payments are a form of replacement income, in the same way that disability insurance payments are a form of replacement income…. “Notice” payments are intended to compensate for the loss of income during a period of unemployment. The consequences of termination are ameliorated by notice and severance payments. Generally, child support will be paid on income actually earned – reduced by loss of regular earnings, upon employment termination, but enhanced by severance and notice payments designed to ameliorate the interruption of earnings. When employment is lost, new employment may be secured on terms that result in a windfall. In other situations, there may be a gap in earnings between severance payments and new employment. However it works out, so long as there is no basis to impute income, support ought to be paid on the basis of actual income.¹⁹ [Emphasis added]

61A change in his income will be realized only when he ceases to receive his severance pay. Justice Sheard in Laginski v. Paleczny (2016), stated:

As such, I find that Laginski’s termination from employment in January 2014 constituted a material change in circumstances effective October 31, 2014, the last day of the month in which his severance payments expired.²⁰

62Although the issue in Laginski v. Paleczny was whether there had been a material change of circumstances that warranted a reduction or termination of support, Justice Sheard’s conclusion is equally apt in determining the material time with reference to which the determination of income should be made.

63A determination of Mr. Regisford’s support obligation based on the income he will be receiving after he ceases to receive severance would be speculative, at best. The court should not embark on a speculative determination of future income. Justice Weiler, speaking for the Court of Appeal in Berger v. Berger (2016), which affirmed the trial judge’s determination of support entitlement based on the payor’s actual income, stated:

In para. 4 of her reasons, she rejects Stanley’s submissions that Sandra’s future income would improve with the comment, “Again, this is speculative.” The trial judge’s use of the word “Again” can be read as a reference to the preceding paragraph in which Stanley submitted his income would decrease. Thus, the trial judge’s reasons can also be read as having considered Stanley’s affidavit evidence as to his future income and a rejection of it as being speculative.²¹ [Emphasis added]

ii) Should employment income be imputed to Ms. Regisford for purposes of determining her entitlement to spousal support?

64Mr. Regisford submits that the court should impute to Ms. Regisford an income of at least $24,000, based on the amount she is capable of earning. For the reasons stated above, I do not agree.

65Imputing income is a method prescribed by s. 19 of the Federal Child Support Guidelines for calculating a spouse’s income, in order to determine the joint and ongoing obligation of parents to support their children and each other.²² Section 19 applies where the methods set out in section 15 to 18 of the FCSG do not produce a fair result; that is, where the parties have not agreed on the amounts of their respective incomes, and where basing the determination of income of the spouse’s total taxable income for the most recent year for which income tax information is available, or the average of the previous three years’ income, if the spouse’s income has fluctuated, does not produce a fair result. The imputation of income in these circumstances is intended to ensure that separated spouses comply with their obligation to financially support their children and, where appropriate, each other, and that they do not avoid that obligation by a self-induced reduction of income.²³

66The Supreme Court in Drygala set out a three-part test to determine whether income should be imputed. The first part of the test is to ask whether the spouse is intentionally under-employed or unemployed; the onus is on the party alleging intentional unemployment or under-employment to prove that fact. He/she must provide an evidentiary basis for this finding.²⁴

67If a spouse has made an unreasonable choice to earn less than he or she is capable of earning, the spouse is deemed to be intentionally under-employed. The issue is therefore whether the fact that the spouse is earning less income than he or she is theoretically able to earn resulted from actions that were both voluntary and reasonable. When an employment decision results in a significant reduction of support by the payor or a significant increase in need for spousal support by the recipient, it needs to be justified by compelling evidence.²⁵ It must be reasoned, thoughtful, and highly practical.²⁶

68In assessing how much income to impute to a spouse, the court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities, and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.²⁷ The court must also consider circumstances that explain and justify the party’s failure to secure such employment as may be available.

69It is not in dispute that Ms. Regisford was dismissed from her employment. Her evidence that she has grieved that dismissal is uncontradicted. Mr. Regisford made no request to cross-examine her as to the circumstances of her dismissal or as to her grievance and its prospects of success. Ms. Regisford has made efforts to secure employment pending the arbitration of her grievance, and Mr. Regisford has not cross-examined her as to those efforts, or how her efforts, or the acceptance of alternative employment at a lower salary would affect the pending arbitration, or the prospects of more suitable long-term employment if her grievance is unsuccessful.

70I make my determinations having regard to Ms. Regisford’s current age (51), her employment history (27 years with the same employer), and family circumstances: separated on December 31, 2014 and currently having to manage on a substantially reduced income in a household where she resides with her 25 year old daughter Jessica, a part-time student at York University who maintains two part-time jobs to make ends meet, her 23 year old daughter Danielle, a full time student at York University who maintains a part-time job during the school year and remains a child of the marriage, and her 25 year old son Joshua, who completed his university studies in 2014 and has since commenced full-time employment.

71In the absence of evidence that meaningful employment is available to Ms. Regisford, I am not prepared at this stage of the proceeding to impute an income to her.

iii) Is Ms. Regisford’s spousal support entitlement significantly different than the support which the parties consented to in the Order of Justice André?

72Mr. Regisford’s 2015 Notice of Assessment discloses a Line 150 income of $172,986. He is currently receiving severance from Purolator at the rate of $9,000 per month, or $108,000 on an annualized basis. Based on the evidence reviewed above, I find that his income from Knowledge Solutions is approximately $40,000. I note that Mr. Regisford states in his affidavit, sworn December 2, 2016, that he does not have an estimate of his net income from Knowledge Solutions for 2016, and has “no idea how much he will be able to bring in in terms of income” in 2017. Thus I find that, based on the best evidence available, his current actual income until he ceases to receive severance, is approximately $148,000.

73Based on Mr. Regisford’s income of $148,000, and Ms. Regisford’s nil income, the Spousal Support Advisory Guidelines produce a range of spousal support from $4,625 to $6,009, with a mid-point of $5,396.

74Having regard to the current minimum wage in Ontario, which is $11.40 per hour, and assuming 36.5 hours per week, and 5 statutory holidays, her annual income would be $19,556.70. This would result in an SSAG range of $4,031 to $5,263, with a mid-point of $4,703. Support at the high end of the range would result in an equal division of Net Disposable Income between the parties.

75If an income of $24,000 were imputed to Ms. Regisford, the SSAG range would be $3,875 to $5,067, with a mid-point of $4,521. Support at the high end would, again, result in an equal division of Net Disposable Income.

76At the time of the Consent Order, Mr. Regisford’s declared income was $106,153. Ms. Regisford’s income, consisting of Employment Insurance benefits, was $19,388. Based on these amounts, the parties consented to the Order of Justice André directing spousal support in the amount of $5,000 per month.

77In all the circumstances, I find that the existing spousal support amount of $5,000 is appropriate based on the parties’ current incomes. I conclude that there is no reason to disturb the spousal support that the parties agreed to before Justice André, and that a change in that amount at the present time is pre-mature until at least May, when Mr. Regisford ceases to receive his severance from Purolator and receives the amount due to him for his Annual Incentive Plan payout for 2016, and Ms. Regisford learns the result of the arbitration of her grievance of her dismissal from the City of Toronto.

CONCLUSION AND ORDER

78For the foregoing reasons, it is ordered that:

1. Mr. Regisford’s motion is dismissed.

2. Each of the parties shall provide to the other notification of any employment, or change in employment, including full particulars and documentation about such employment or change, within five days of their acceptance of an offer of employment.

3. Mr. Regisford shall provide to Ms. Regisford a copy of any communication received from Purolator in respect of his Annual Incentive Plan payout for 2016, and of his Vacation Pay within five days of his receipt of such communication.

4. Ms. Regisford shall inform Mr. Regisford of the settlement or outcome of the arbitration of her grievance of her dismissal from her employment with the City of Toronto within five days of such settlement or of her receipt of notification of the outcome.

5. In the event that the parties are unable to agree on the determination of Mr. Regisford’s support obligation after May 2017, either may apply to the Court for determination of the issue by motion on seven days’ notice.

6. If the parties are unable to agree on the costs of this motion, they shall submit their written arguments, not to exceed four pages, plus their Costs Outline, by January 31, 2017.

Price J.

Footnotes

1. 1Ceho v Ceho, 2015 ONSC 5285
2. 2Driscoll v. Driscoll, 2009 66373 (ON SC), 2009 CarswellOnt. 7393
3. 3Moge v. Moge, 1992 25 (SCC), 1992 SCC 25, [1992] 3 S.C.R. 813 at para. 52; Bracklow v. Bracklow, [1999] 1 S.C.R 420, 1999 715 (SCC) at para. 35; and Miglin v. Miglin, [2003] 1 SCR 303, 2003 SCC 24 at para. 39.
4. 4Moge v. Moge, supra note 3.
5. 5Fisher v. Fisher, 2008 ONCA 11, para. 49.
6. 6Robertson v. Hotte, 1996 8083 (ON SC) (Gen. Div.), at paras 18 and 19.
7. 7Ferreira v. Ferreira, [1998] O.J. No. 3302 (Ont. Ct. (Gen. Div.)
8. 8Wilson v. Wilson, [2002] O.J. No. 3519 (S.C.J.), at para. 15.
9. 9Linton v. Linton, 1990 ONCA 2597, (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), at 27-28.
10. 10Linton v. Linton, ibid at para. 27.
11. 11Moge, supra note 3, citing Carol Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, at pp. 174-75. (p. 870).
12. 12Linton v. Linton, supra note 9.
13. 13Thomas v. Thomas, 2003 64346 (ON SC), [2003] O.J. No. 5401.
14. 14Family Law Act, R.S.O. 1990, c. F.3 as amended
15. 15Mann v. Mann, 2009 ONSC 23874.
16. 16Spousal Support Advisory Guidelines, (Ottawa: Dept. of Justice, 2008), Section 7.4.2
17. 17Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489
18. 18Fung v. Lin, 2001 28193 (ON SC), [2001] O.J. No. 456; Cork v. Cork, 2014 ONSC 2488, 2014 ONSC 2488, at paras. 8, 9, 15 and 38; Sheppard v. Perry, 2014 ONCJ 552, at paras. 10 - 13; Younghusband v. Younghusband, 2013 ONSC 6550, at paras. 38-39.
19. 19Walsh v. Walsh, 2008 586 (ON SC), [2008] O.J. No. 98, at para. 27
20. 20Laginski v. Paleczny, 2016 ONSC 47, [2016] O.J. No. 41, at para. 51
21. 21Berger v. Berger, [2016] O.J. No. 5983, at para. 77
22. 22Federal Child Support Guidelines, SOR/97-175, s. 19.
23. 23Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), 2000 ONSC 22560, [2000] O.J. No. 453.
24. 24Homsi v. Zaya , 2009 ONCA 322
25. 25Riel v. Holland, 2003 ONCA 3433, at para. 23.
26. 26Hagner v. Hawkins, 2005 ONSC 43294, at para. 19.
27. 27Lawson v. Lawson, 2006 ONCA 26573