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COURT FILE NO.: 579-06

DATE: 2017 10 31

BETWEEN:

Joan Ann Mary Fox

Applicant

– and –

James Henry Fox

Respondent

John G. Cox and Natalie Bazar, counsel for the applicant

Douglas R. Beamish, counsel for the respondent

HEARD: May 31, June 1,2,6,7,8,9,26 and July 13, 2017

Mossip j.

Reasons for Judgment

Introduction – General Overview

1The parties had known each other for almost 40 years as of the date of trial. They met in Montreal when Ms. Fox was 18, and Dr. Fox was 19. The parties married approximately three years later, on August 15, 1981. As of the official date of separation, November 13, 2003, the parties had been married 22 years.

2The parties moved to Guelph where Dr. Fox established himself as a dentist. His practice became both successful and lucrative.

3Ms. Fox worked full-time outside the home while Dr. Fox attended school, and while his dental practice was being established. The parties had three children, Ms. Fox took maternity leaves after the birth of each child. Further, she reduced her hours of work after the birth of the second and third child.

4The parties and their three children had to all appearances a dream marriage, a lovely family, and an affluent lifestyle. Dream marriages are usually found only in the movies. The Fox marriage, like many others, ultimately floundered, then failed. Not surprisingly, the parties disagree as to when the marriage started to flounder, but it is unnecessary to resolve that issue for this decision.

5This matter took from 2003 to 2017 to get to trial. That is an extraordinary length of time and the reasons for such a delay must be examined by me. The delay has a significant impact on several of the evidentiary and legal issues I must decide.

6By the time this matter came to trial, it was not that complicated, though there remained complex legal issues related to spousal support that had to be resolved by me.

7I accept that there were numerous issues in the litigation, particularly related to disclosure of documents and productions that made this file complicated, time consuming and expensive before the trial commenced. I will discuss these issues to some extent in these reasons.

8The parties resolved the equalization issue; they remain in possession of their respective assets. There is an outstanding order that the equalization payment Ms. Fox owes Dr. Fox can be set-off against any amount of arrears of spousal support I find Dr. Fox owes Ms. Fox.

9The parties resolved, with the assistance of their experts, Dr. Fox’s income from 2006 to 2015. Ms. Fox’s income as a part-time employee is not in dispute.

10Since the day of separation, Dr. Fox has paid support both on a voluntary basis, and pursuant to an interim order. There are several factual and legal issues that arise from those payments set out below.

11There were agreed upon facts filed with the court, as well as several Joint Document Briefs that were filed on consent. Counsel worked diligently prior to the trial to narrow the facts and issues in dispute.

12All this to say, as is often the case with family law litigation, what started out as an out of control blazing and extremely costly wildfire, was reduced to a few simmering embers by the time it reached me.

13I will state at the outset my conclusion about Dr. Fox’s litigation conduct. Allegations about his conduct were a central theme in the evidence presented by the applicant. For reasons set out throughout this judgment, I found Dr. Fox’s conduct was not as egregious as the applicant’s counsel would have me find, nor as virtuous as the respondent’s counsel impressed upon me. Dr. Fox’s litigation conduct did have an impact on the delay in this matter reaching trial; the consequences of this conduct are discussed below.

Issues at Trial

14The main issue at trial relates to spousal support, retroactive and prospective. There is also a claim for retroactive child support back to 2006 based on Dr. Fox’s actual income. The spousal support issue is sub-divided as follows:

What, if any, compensation should Ms. Fox be awarded for past spousal support calculated on Dr. Fox’s actual income, which was higher than the income upon which she was paid support from 2006 to present?
What amount of the support paid by Dr. Fox should be attributed to child support when the children were in a shared parenting arrangement and when they were attending various post-secondary institutions?;
Depending on my finding above (2), should there be an order for retroactive child support considering Dr. Fox’s actual income since 2006, imputed income to Ms. Fox, and the circumstances of the parties and the children? and
What quantum of support should Ms. Fox receive going forward and should there be any time limit on that support?

15In order to decide the issue of what quantum of spousal support is owed to Ms. Fox, retroactively and prospectively, I must make findings of fact and determine the following issues:

a. Entitlement: Is Ms. Fox entitled to spousal support based on a compensatory model; a non-compensatory model (means and needs); or a combination of both?

b. Should employment income be imputed to Ms. Fox on a full-time basis from the time the youngest child was enrolled in school full-time, or some other date? If so, at what amount?

c. Is Ms. Fox entitled to an adjusted spousal support award, based on Dr. Fox’s actual income, including his post separation income increases that occurred during the period he paid support, both voluntarily and pursuant to an interim court order? and

d. How do the Spousal Support Advisory Guidelines apply in this case?

16There are two other issues raised by Ms. Fox at this trial:

Whether Dr. Fox and Wendy Van Delft (Dr. Fox’s partner since sometime in the 2000’s) are in contempt of an order of this court. If they are found to be in contempt, what is the appropriate penalty? and
Whether Dr. Fox was a participant in the spoliation of evidence related to certain business records. If he was, what is the appropriate remedy?

Background Evidence Arising from the Trial

17The following background facts are not seriously in dispute between the parties.

18Ms. Fox was born March 30, 1959 in Montreal. She completed grade 11 high school. Ms. Fox did not attend post-secondary school. Ms. Fox started full-time employment after completing grade 11. In 1993, she obtained her grade 13 math credit in Ontario.

19Dr. Fox was born July 2, 1958 in Montreal. In 1978 Dr. Fox started his post-secondary education at the University of Guelph to pursue a Bachelor of Science degree. In September, 1981, Dr. Fox started a Masters in Science Degree at McGill University. Dr. Fox abandoned that program and entered Dentistry in September, 1982 at McGill University.

20The parties met in March, 1978 and started dating. When Dr. Fox moved to Guelph with his family to attend university there, Ms. Fox stayed in Montreal and continued to work full-time. The parties continued to date, and saw each other during the holidays and at sporadic times during the school year.

21The parties were married on August 15, 1981 in Montreal. Ms. Fox was 22 and Dr. Fox was 23. The parties had virtually no assets on the date of marriage.

22The parties resided in Montreal while Dr. Fox attended dentistry school from 1981 until he graduated in 1986.

23Ms. Fox worked full-time in Montreal during the first five years of marriage. She earned approximately $15,000. gross per year from all sources.

24Dr. Fox was a full-time student during the first five years of marriage. He worked during the summer, the occasional Wednesday evening, and half-days on Saturday during the school year. His average gross earnings per year for this five year period were approximately $4,600.

25Dr. Fox’s education was funded from the following sources: student loans, small bursaries, Ms. Fox’s income, and Dr. Fox’s part-time income. All sources of income were deposited into their joint account.

26Dr. Fox graduated from dentistry in the spring of 1986. He had at the time of graduation a student loan of $10,025.

27Dr. Fox was diagnosed with Crohn’s disease in the spring of 1986. He has managed his disease since that date with medication and diet.

28The parties moved to Guelph after Dr. Fox’s graduation so he could start his dentistry practice there with an established dentist who was looking for an associate.

29The parties moved to a rental accommodation when they first came to Guelph. They had no assets or savings. They did have Dr. Fox’s student loan.

30In June, 1986, the parties took a loan of $96,000. to buy into the other dentist’s practice. The parties, along with Dr. Fox’s parents during the summer of 1986, got his office ready to start his dental practice.

31In September, 1986, Ms. Fox secured full-time employment with McNeil Consumer Healthcare (“McNeil”). This was a manufacturing facility for Johnson and Johnson, located in Guelph.

32Ms. Fox’s income was used to assist the parties with expenses while Dr. Fox’s dental practice got established. Further, McNeil offered a good benefits package which the parties needed, particularly because of Dr. Fox’s diagnosis of Crohn’s disease.

33The parties did some networking in Guelph to get Dr. Fox’s name out in the community. Dr. Fox joined the Rotary Club of which he was a member for 10 years. As such, he attended Monday night meetings from 6:00 p.m. to 8:00 p.m. each week.

34Dr. Fox and Ms. Fox had three children. Ms. Fox took maternity leaves after the birth of each child as follows:

B, born May 18, 1989. Ms. Fox took five months maternity leave;
T, born March 23, 1991. Ms. Fox took six months maternity leave; and
L, born May 15, 1995. Ms. Fox took eight months maternity leave.

35In between the birth of the children, Ms. Fox continued to work with the same company, McNeil. After B’s birth and her maternity leave, she returned to work full-time. After T’s birth and her maternity leave, Ms. Fox returned to work 3 ½ days per week. After L’s birth, Ms. Fox returned to work 2 ½ days per week in a job-sharing arrangement with another employee. Ms. Fox continues in this job-sharing arrangement to the present time.

36Dr. Fox’s dental practice has gone through various business arrangements with different dental associates, both during the marriage and following separation. Dr. Fox continues to have a lucrative dental practice to this date in association with a dentist to whom he sold one-half of his practice in 2013.

37The parties went on numerous vacations as a couple and as a family. Some holidays were relatively inexpensive, others were more extravagant. These vacations, from 1981 to 2017, were all outlined in an exhibit. The only relevance of this exhibit is that it demonstrates one example of the reasonably affluent lifestyle the parties and children had when they lived together.

38The following further details arising from the evidence are set out under relevant headings.

Roles in the Marriage

39The evidence of the parties and other witnesses on this topic can be briefly summarized as follows:

40Both Ms. Fox and Dr. Fox were, for the most part, consistent in setting out their roles in the marriage. They both testified as to sharing family and childcare responsibilities, though Dr. Fox was less than gracious to his former wife in describing her involvement with the home and children.

41I prefer the testimony of Ms. Fox on this issue from that of Dr. Fox. Dr. Fox testified that Ms. Fox “lacked energy” in the mornings and so Dr. Fox performed the majority of the child care duties. I do not accept that assertion.

42The testimony of Dr. Fox on this issue is in direct contrast to Ms. Fox’s testimony, who I found to be a more credible witness overall than Dr. Fox. I found Dr. Fox was evasive, and cavalier in his response to relatively straightforward questions put to him by Ms. Fox’s counsel. Further, his testimony at trial was in some instances contradicted by answers he gave at his questioning, often with no reasonable explanation for the difference. His forthrightness as a witness was also undermined by the testimony of Paul Truex which I discuss below.

43Further, the testimony of Ms. Fishburn, a long-time friend of Ms. Fox’s, who had regular contact with her, and who observed Ms. Fox with L at his school (the same one her daughter attended), and at the Fox home, corroborates some of the testimony of Ms. Fox on this issue. Ms. Fishburn describes Ms. Fox as a very involved and energetic person, who was fully engaged in the home and with her children. When she was asked by Ms. Fox’s counsel for her comments on Dr. Fox’s statement that he was the primary parent; “father, mother, friend”, to the children, she testified that in her opinion, this statement was “very demeaning” to Ms. Fox and the role she played with the children and the family.

44There was also the testimony of David Jones, a former supervisor of Ms. Fox’s at McNeil, from 1992 to 2016. He described Ms. Fox as a “maintenance free” employee, who came to work and did her job. He also testified that Ms. Fox took time off work as necessary for both her children and to assist with Dr. Fox’s father as needed.

45Having said that, and to a large extent based on Ms. Fox’s testimony, I am satisfied on the evidence at trial, that both these parties were actively involved in their family life in all its aspects.

46The parties had to some extent “traditional” roles, as far as Ms. Fox organizing childcare for example, but that was more a matter of practicality than anything else. Ms. Fox, particularly following the birth of T and L, worked outside the home less than Dr. Fox, whose dental practice was expanding, and therefore she had more time for certain tasks.

47On the evidence, I find that the parties were both involved in the children’s activities and schools to the extent that their time allowed. This meant that Ms. Fox did a bit more of the day-to-day tasks in the family, but Dr. Fox was clearly an involved father and spouse.

48Although Ms. Fox’s employment income assisted the parties and the family initially, there is no question that Dr. Fox’s income from his dental practice became the primary source of income for the family. This was particularly true after Ms. Fox went back to work on a job-sharing basis after the birth of L.

49I accept the testimony of Ms. Fox that the parties discussed her staying home with the three children after the birth of L. Firstly, I believe Ms. Fox when she testified that this issue was raised by Dr. Fox and discussed by them after L’s birth. Her testimony on this issue was given in a straightforward manner and was not exaggerated. This testimony also makes sense because Dr. Fox’s practice was growing and he was starting to earn a substantial income. The parties had three small children who were understandably demanding of the parties’ time. Ms. Fox’s part-time income was not that important in terms of meeting the family’s needs. The suggestion that the family would benefit if Ms. Fox stayed home full-time makes sense.

50It also makes sense that Ms. Fox wanted to keep her part-time job for the medical benefits that the family, including Dr. Fox, needed. Ms. Fox had a great deal of flexibility with respect to her work. She had significant time off, because of the nature of her part-time work, to help manage the home and children and which allowed Dr. Fox to focus on his practice. Ms. Fox, in a sense, could have a bit of both worlds. According to her testimony, this arrangement allowed her to keep her family as a top priority, and allowed Dr. Fox to grow his dental practice.

51I reject Dr. Fox’s testimony that the part-time employment of Ms. Fox at McNeil was intended by both of them to be only temporary. The only evidence to support that position is Dr. Fox’s say so, which I find is his revisionist history on this issue, to assist him in this litigation. There is no other credible evidence that the parties intended Ms. Fox would go back to work full-time after the children were all in full-time attendance at school.

Care of the Children – Activities – Post-Secondary Education

52As I have just set out, the parties were both involved in the care of the children. There were a couple of women, who helped the parties in the home, from time-to-time, one of them for many years. These helpers were never more than “assistants”, with respect to the childcare, who also did some light housekeeping. The parties were the primary caregivers of their children.

53As the evidence of the parties, and the witnesses they each called, discloses, the three children participated in numerous sports and other activities. Both parents were involved in those activities, either as coaches (Dr. Fox), or drivers (both parties), and as supportive observers (both parties). The activities of the children were set out in an exhibit. As can be seen from this exhibit, the children were involved in many activities, both sports and other kinds. This is another example of how the family benefitted from Dr. Fox’s successful dental practice. It is also indicative of how busy this family was and how they worked hard to help the family function successfully.

54All of the children attended for some period of time at a post-secondary school, though they did not all get post-secondary degrees.

55The children spent time with their parents regularly following the date of separation; they were 14, 12 and 8 at that time. Once the children completed high school, the children lived between university residence, apartments, the parent’s homes, and friends.

56B, attended the University of Western Ontario for five years. This was followed by her attending at Chiropractic College for four years.

57T, attended Conestoga College for one year.

58L, attended Carleton University for one year. He has since taken some on-line courses at Carleton.

Dr. Fox’s Dental Practice

59Dr. Fox commenced his dental practice in Guelph in 1986. He bought into the practice of another dentist at that time, and he took out a loan for that purpose.

60In 1989, Dr. Fox dissolved his relationship with the original dentist. He moved his practice to be with an established dentist as an associate. Here there was a 60/40 financial arrangement in favour of the other dentist.

61Dr. Fox, in 1993, took a course to become certified to practice orthodontics. The course was completed over ten weekends. During these weekends, Ms. Fox was primarily responsible for the home and the two children, B and T.

62Dr. Fox took out various loans to operate his practice, in 1994 and 1996. Ms. Fox co-signed a loan for $235,000 in 1996. Further loans were taken out in 1999.

63A summary of all the loans taken out for Dr. Fox’s dental practice was filed as an exhibit. The only loan Ms. Fox co-signed was the one for $235,000.

64In 2007, Dr. Fox bought the practice of a dentist he was in association with, as that dentist was retiring. During the next few years, Dr. Fox’s dental practice income increased because of this purchase, and the increase in patients he was managing. Dr. Fox bought the land and buildings, from which the practice was operating in March, 2013.

65Dr. Fox’s evidence was that he could not manage this number of patients by himself. He testified he hired two associates at different times, both of whom left his practice, taking patients and staff with them. Ultimately he hired an associate dentist who had an interest in owning part of his practice on a long-term basis. In October, 2013, he sold half of his practice to this associate for $1,125,000. This dentist remains a part owner of the practice to this date.

66A summary of the various corporate structures of Dr. Fox’s practice, before and after the sale of ½ of his practice in 2013, as well as various Family Trusts that were created were filed as exhibits. I do not have to deal with these issues as the value of Dr. Fox’s practice was resolved by the parties, and the experts calculated Dr. Fox’s income considering these structures.

67Ms. Fox’s involvement in Dr. Fox’s education, career and dental practice is set out below.

Ms. Fox’s Employment/Earnings/Benefits

68Ms. Fox’s employment and income is relatively straightforward. She has worked for the company, McNeil, since she moved to Guelph in 1986. She worked on a full-time basis until the second child was born, when she went back to work for 3 ½ days per week. After the third child was born, she worked in a job-share relationship at 2 ½ days per week. She continues in that arrangement to date. She is still covered on the benefits plan of her employer.

69Ms. Fox graduated from grade 11 in Montreal. This is equivalent to a high school degree in Ontario. She did not attend any post-secondary institution.

70Ms. Fox’s position at McNeil has essentially remained the same. In 1986, she started out working in marketing and sales. In 1987, she worked in human resources, and then she moved to medical sales. She has been a buyer for many years now on a part-time basis.

71David Jones, Ms. Fox’s supervisor for many years, testified that Ms. Fox was an employee who required little to no supervision. He testified that her job requirements with McNeil evolved in 1994-1995, and the company required her position to be a full-time one. At this time the parties had three small children. Ms. Fox told the company that, with her family responsibilities, she could not work full-time.

72As a result, the company created a full-time position that was shared between Ms. Fox and another employee. Mr. Jones testified that, after 1995, Ms. Fox was not offered full-time work and she did not work full-time with the company again.

73In cross-examination, Mr. Jones testified that in order for Ms. Fox to work full-time in her current role, the person she shares her job with would have to lose her job.

74Mr. Jones testified that from the mid-1980’s to the present, as far as McNeil is concerned, Ms. Fox does not have the credentials or educational degrees to qualify for other work with the company, in sales/research and development/ or laboratory work. He testified that she could work on the plant floor as a machine operator, as that position does not require a degree.

75Mr. Jones further testified that when the job-share position was created, Ms. Fox made it clear that she did not want full-time work because of her family responsibilities.

76Mr. Paul Truex was called as a witness by Dr. Fox. He worked for Johnson and Johnson for 34 years. He came to Guelph to set up a plant for Johnson and Johnson that developed and made baby food. He was Vice President of Human Resources from 1984-1998.

77Mr. Truex testified that he made it his job to know all the employees at Johnson and Johnson (McNeil in Guelph), and Ms. Fox was one of them. He described Ms. Fox as being very well thought of by the company and others, and testified that she still is. He described her as a “stellar employee”. There were no complaints about her and she had lots of energy at work.

78There was some puzzling testimony offered by Mr. Truex. He testified that Dr. Fox (who he also knew), in a telephone call prior to the trial, suggested to him, that Ms. Fox at some time had requested more work but she had not been accommodated by the company. Mr. Truex was startled by this suggestion as Johnson and Johnson prided itself on being a “value focused” organization which valued employees and focused on their needs. As far as he knew the company always focused on people; if a part-time employee wanted full-time work, the company would do all it could to accommodate that request.

79Mr. Truex, following the telephone conversation, investigated this suggestion. He satisfied himself that it could not be true.

80Although nothing really turns on this evidence, it did go into the mix and contributed to my assessment of Dr. Fox as a less than candid and truthful witness.

81As of the date of trial, Ms. Fox’s annual income is approximately $56,647. She also has full medical benefits and some contributions by the company to her retirement savings. Ms. Fox has 31 years seniority at McNeil.

Legal Issues to Be Decided

Spousal Support

Framework for Determination of Spousal Support Issues

Spousal Support

82A recent decision from the Ontario Court of Appeal, Halliwell v. Halliwell, 2017 ONCA 349, provides a helpful framework for the determination of the issues related to spousal support that I must decide. The case does not set out new law on this issue, but pulls from the statutes, the Spousal Support Advisory Guideline: The Revised User’s Guide, (April 2016) (“SSAG’s”), and the jurisprudence, to set out a cogent analysis for trial judges to follow when deciding the issue of spousal support.

83The framework set out in Halliwell may be summarized from the following paragraphs:

108 The application of the SSAGs formulas, whether under or above the ceiling, requires a preliminary consideration of entitlement. The entitlement question then informs the approach to be taken in applying the SSAGs.

109 As stated at s. 3.2.2. of the SSAGs:

The Advisory Guidelines do not deal with entitlement. ... The Advisory Guidelines were drafted on the assumption that the current law of spousal support, post-Bracklow, continues to offer a very expansive basis for entitlement to spousal support. Effectively any significant income disparity generates an entitlement to some support, leaving amount and duration as the main issues to be determined in spousal support cases. ... The basis of entitlement is important, not only as a threshold issue, but also to determine location within the formula ranges or to justify departure from the ranges as an exception. [Emphasis in original.]

110 It is important to note that s. 3.2.2 recognizes that entitlement plays two different important roles in determining spousal support. First, entitlement is a threshold issue. Second, entitlement determines location within the formula ranges or to justify departure from the ranges.

117 The SSAGs provide at s. 11.1 that after the payor's gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, they make clear that $350,000 is not a "cap" and spousal support can, and often will, increase for income above that ceiling. The SSAGs provide the following example at s. 11.3:

If the payor earned more, say $500,000, a court could leave spousal support in that same range [the one for $350,000] or, in its discretion, a court might go higher, but no formula would push the court or the parties to do so and it would be an individualized decision. If the formula were to be applied for an income of $500,000, the support would rise to $15,625 to $20,833...monthly. Or the court or the parties might settle upon an amount somewhere in between these two ranges. These are large numbers for support in this case, but keep in mind that this is the very top end of the formula, with a long marriage, a high payor income and no income for the recipient.

119 In a recent decision of this court, Slongo v. Slongo, 2017 ONCA 272, this court did apply the SSAGs formula to the full amount of a payor's income that exceeded $350,000. However, it is important to appreciate the facts in Slongo. In that case, the payor husband resigned from his employment and elected to receive the commuted value of his pension, totalling $1.9 million, payable in six installments. Soon afterwards, the husband began working as a consultant for his former employer. As I have noted, this court held that the SSAGs formula should apply, based on the full amount that the payor was to receive. However, at para. 134 of the reasons, the court explains, "Given the lump-sum nature of this pension payout, intended to compensate the husband for what would otherwise have been smaller annual payments, it seems appropriate here for the wife to benefit from the application of the formula to the full amount."

120 As stated at s. 11.3 of the SSAGs, "What is clear is that the larger stakes at these income levels [above $350,000] and the complexities of the individual cases mean that the Advisory Guidelines will have less significance to the outcomes above the ceiling, whether negotiated or litigated."

122 Thus, while the trial judge was fully justified in making an award of spousal support that was both compensatory and non-compensatory, in setting the quantum, he needed to take into consideration the fact that the equalization payment went some considerable distance towards satisfying both bases for the award. As he did not, in my view, the use of the full $1,000,000 as an income input -- in other words, the choice of an income input at the highest point within the suggested income range -- was an error in principle. I will say more about this below, when determining an appropriate spousal support order.

84As a result of the fluctuations in Dr. Fox’s income from his dental practice, it is also relevant to my decision that the court in Halliwell found no error in the trial judge averaging the payor’s last three years of income in arriving at the appropriate income for the payor. See paras. 123-129 in Halliwell:

123 In the appellant's view, the trial judge's application of a three-year average to produce an annual income of $1,000,000 unfairly overstated his income. As articulated by his expert, there was a single lucrative contract in 2013 that resulted in non-recurring income of $1,600,000. The appellant says that including this amount in the average resulted in unfairness.

124 I would not agree.

125 Section 17(1) of the CSGs allows a court to consider patterns or fluctuations in a spouse's income over the last three years. Where the spouse is a corporate shareholder, s. 18(1) (a) permits the court to consider whether all or part of the pre-tax income of the corporation should be included in the spouse's annual income. In Mason, at paras. 159-169, this court held that the three-year review of a spouse's income is not limited to line 150 income but can also capture corporate income.

126 Since it was open to the trial judge to consider income over the last three years, the question then becomes whether the trial judge erred in doing so in this case.

127 I am not at all persuaded that he did. It is true that the appellant's expert's evidence was that the income from 2013 was unrepresentative. However, the trial judge accepted the respondent's expert's evidence that the businesses were profitable and growing. There was no evidence that large jobs such as the one that made 2013 a success would not continue to arise.

128 Where a spouse's income fluctuates significantly due to the inherent unpredictability of income from business interests, the averaging approach can certainly be appropriate. In Mason, this court concluded that it would be appropriate to average the husband's income over the last three years.

129 In all of the circumstances, I see no error in the trial judge having averaged the appellant's last three years of income.

Entitlement

85As directed, the first decision to make is whether Ms. Fox is entitled to spousal support, and if so, on what basis.

86In considering the issue of entitlement to spousal support, I go back to two old chestnuts from the Supreme Court of Canada, Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.) and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.). There are other appellate and trial decisions to which counsel referred me which were helpful, but the guiding principles I need for my decision are set out in these two cases.

87In Moge, L’Heureaux- Dubé, writing for the majority, set out the statutory regime applicable to a claim for spousal support.

88The court emphasised the factors that should be considered in making an order for spousal support, and the objectives an order for spousal support seeks to meet. The relevant sections of the Divorce Act S.C. 1984-85-86, c. C47 are:

15.

(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including

(a) the length of time the spouses cohabited;

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

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

(7) An order made under this section 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 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) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

89Moge, which set out the factors and objectives a court should consider in making an award of spousal support, was followed by Bracklow. This decision added to the factors a trial judge should consider. At para. 49, McLachlin for the court wrote: :

49 In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge, is a "joint endeavour", a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

90As to the evidence that needs to be marshalled on the respective contributions of the parties to the marriage, in Moge, McLachlin, J. concurred with L’Heureaux- Dubé J. on this issue and wrote at para 116:

116 This leaves the question of evidence. I agree with my colleague that evidence of the spouses' respective contributions and gains from the marriage is necessary under s. 17(7)(a). I do not think the evidence need be detailed, in the sense of a year-by-year chronology of sacrifices and gains. This is not an exercise in accounting, requiring an [page883] exact tally of debits and credits for each day of the marriage. It is beyond the means of most parties and our overburdened justice system to devote weeks of lawyers' and experts' time to providing such a tally. Nor do I think it necessary. It is clear that certain things must be done to maintain a family. Income must be earned. Food must be bought and prepared. Children must be cared for. And so on. In most cases it will suffice if the parties tell the judge in a general way what each did. That will allow the judge very quickly to get an accurate picture of the sacrifices, contributions and advantages relevant to determining compensation under s. 17(7)(a), making detailed quantification and expert evidence unnecessary. Poverty is one of the main problems arising from marital breakdown; it should not be made worse by long and expensive legal proceedings.

91There is one further point with respect to the factors that matter in determining the issue of entitlement to spousal support. Since the decision of Linton v. Linton, 1990 CanLII 2597 (ON CA), [1990] O.J. No. 2267, courts have held that, particularly in long-term traditional marriages, the merger of the parties’ economic lifestyles creates a joint standard of living which must be considered in the spousal support analysis.

92The consideration of a joint standard of living as a factor to consider in the needs based analysis for spousal support, was reiterated in a recent decision of the Court of Appeal, Gray v. Gray, 2014 ONCA 659 at para. 27:

27 One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses.

93This principle has been enunciated in other trial and appellate decisions since Linton. It is also one of the pillars of the SSAG’s.

Evidence of Parties’ Incomes

94With the above legal framework, I now turn to the evidence at the trial which I must consider in order to decide the issue of Ms. Fox’s entitlement to spousal support.

95Dr. Fox’s income was not in dispute. In this case, the parties, with the assistance of two experts, agreed on Dr. Fox’s income for the years 2006 to 2016. Those income numbers were set out in an exhibit and are as follows:

Year	Income per Agreement
2006	$489,000.00
2007	$650,000.00
2008	$671,000.00
2009	$770,000.00
2010	$851,000.00
2011	$786,000.00
2012	$659,000.00
2013	$710,000.00
2014	$545,000.00
2015	$568,000.00
2016	$621,710.00 *

*As per Line 150

96In Halliwell, the equalization payment payable to Mrs. Halliwell was several million dollars. The court held that the trial Judge erred in not factoring in that payment, and by not imputing an income to the wife that would be generated from that asset, when he determined the quantum of support payable to the wife pursuant to the SSAG’s.

97In the case before me, the parties equalized their net family properly as of 2003. Ms. Fox owes Dr. Fox a payment of $108,400. There is therefore no large equalization payment owing to the spousal support recipient to consider. Nor does either party, based on their financial statements, have significant income-producing assets as of the date of separation, or even now, that I should consider in determining the issue of spousal support.

98Ms. Fox’s income is accepted as set out in her tax returns as a part-time employee of McNeil. Her income since 2006 is as follows:

Year	Income **
2006	$47,027.
2007	$40,095.
2008	$46,864.
2009	$42,146.
2010	$53,540.
2011	$55,348.
2012	$46,810.
2013	$48,090.
2014	$49,911.
2015	$60,624.
2016	$56,647.

** Note: Ms. Fox’s income has been taken from her tax returns and the wife’s DivorceMate calculations. For the most part, as set out in the husband’s DivorceMate calculations, the parties’ input for the wife’s income was the same or very close.

99Ms. Fox’s current employment income is agreed to be $56,647 gross per annum.

100Dr. Fox’s position is that a full-time income should be imputed to Ms. Fox going back to when the youngest child started to attend school, or at the very least going forward. I will deal with that issue below.

Evidence of Ms. Fox’s Contribution to Dr. Fox’s Education, his Dental Practice and to the Marriage (Compensatory Basis)

101The evidence of both parties is that during the first five years of marriage, (1981-1986), Ms. Fox worked full-time while Dr. Fox attended dental school. All of Ms. Fox’s income went into a joint account from which the parties paid their expenses. Dr. Fox had some part-time income from working on the occasional Wednesday night, and summer/weekend earnings, but these earnings were not significant. He also incurred some student loans and received some small bursaries. I find that Ms. Fox’s full-time income significantly assisted with the parties’ expenses during these years, and assisted Dr. Fox in obtaining his dental degree.

102In addition to financial assistance, in these early years, Ms. Fox primarily managed what household duties there were, as Dr. Fox was busy attending classes, studying, or working part-time.

103I am also satisfied based on all of the evidence, that Ms. Fox did some work in Dr. Fox’s dental practice.

104I accept the evidence of Ms. Fox as to the work she did in Dr. Fox’s dental practice and how often she was there. She may well have done some of this work at the suggestion of Dr. Fox’s accountant because she received a pay cheque from the practice and this was a way to income-split and save on the amount of income tax that was payable by Dr. Fox. In any event, Ms. Fox still did the work. All the income she was paid from the dental practice went into the joint account to fund the expenses of the family.

105I find Dr. Fox downplayed and dismissed what Ms. Fox did in his practice, much as he did in describing her work in the house and with the children. I find Dr. Fox was motivated to not be completely candid on this issue and I put little to no weight on this testimony.

106Ms. Fox called two witnesses, Deborah McDougall and Caroline Radbourne to testify on her involvement in Dr. Fox’s practice. Ms. Radbourne worked in Dr. Fox’s practice, and Ms. McDougall worked for the other dentist in the building. They both had an opportunity to observe if Ms. Fox worked in the dental practice.

107Both Ms. McDougal and Ms. Radbourne testified that Ms. Fox worked in the office regularly. They observed Ms. Fox doing paperwork and, in particular, bookkeeping work. Ms. Radbourne testified that she observed Ms. Fox working with a great deal of regularity every second Friday. Ms. McDougal testified that she saw Ms. Fox in the office (1987 to late 1990’s), two to three times per month.

108Ms. McDougal is not a close friend of Ms. Fox and has only seen her randomly since she left the other dentist’s employment in 2000.

109Ms. Radbourne did not keep in contact with Ms. Fox after she left Dr. Fox’s office in 2002. Ms. Fox called her out of the blue to ask if she would write a letter of support for her in the litigation. She has had lunch about four times with Ms. Fox since she contacted her.

110I am not concerned about the office problem between Dr. Fox and Ms. Radbourne that was detailed at the trial. Dr. Fox still hosted a going away party for Ms. Radbourne when she left and he gave her a gift. She did not appear to exaggerate her testimony to assist Ms. Fox or hurt Dr. Fox in this litigation.

111Dr. Fox called as a witness on this issue, Lynn Brubacker. She has been employed by Dr. Fox as a preventative dental assistant since 1996 and remains so to this day. She works at the front desk and assists with patients as required. Her testimony was that she did not see Ms. Fox in the dental practice on a regular basis; she testified that she could count on one hand the number of times Ms. Fox sat and watched her do “on screen” work.

112Ms. Brubacker testified that she never saw Ms. Fox do work in the office, and never saw her write a cheque. She agreed Ms. Fox worked downstairs and that there was a separate entrance to this area.

113I do not know if Ms. Brubacker “overstated” the evidence in Dr. Fox’s favour, as she agreed she might have on cross-examination. I cannot say she is lying. Maybe she simply did not have the opportunity to see Ms. Fox very often from 1996 to 2001.

114After considering the evidence from the trial that I did accept, Ms. Brubacker’s testimony did not change my view of Ms. Fox’s involvement in the dental practice.

115As set out below in the section on the spoliation issue, one of the remedies, if I find Dr. Fox did intentionally destroy relevant evidence, is to draw an adverse inference against him with respect to the issue to which the evidence related.

116For the reasons set out in the spoliation section, I do find Dr. Fox intentionally destroyed evidence related to his practice. I find that the financial and bank records Dr. Fox destroyed would have assisted Ms. Fox in proving her compensatory support claim. It is another piece of evidence I relied on to find in Ms. Fox’s favour on this issue.

117Dr. Fox, at his most generous, acknowledged Ms. Fox’s handwriting on the bank records from the practice that she was able to find just recently. The records she produced were from the 1990’s and showed Ms. Fox’s handwriting on bank reconciliations, journal entries, and other data entry work for the practice. Dr. Fox opined that although he agreed this was her handwriting, Ms. Fox was just “double-checking” other people’s work, and did little to nothing regularly in the practice.

118I reject Dr. Fox’s testimony on the amount of work Ms. Fox did in his office. I prefer the evidence of Ms. Fox, her two witnesses and the documentary evidence which satisfies me that Ms. Fox did do work in his dental practice, both at home, and at the office, particularly in the early years, to a significant degree.

Conclusion on entitlement to Support Based on Compensatory Model

119I agree to some extent with Dr. Fox’s counsel that on the evidence there may not have been a large direct contribution made by Ms. Fox to Dr. Fox’s practice in the work she did there. The dental practice was certainly not a partnership or a joint business venture, as is sometimes described in the jurisprudence. Nevertheless, I do find there is a significant foundation for her compensatory support claim on this basis.

120As the jurisprudence sets out, compensatory support claims are based on many factors, not just contribution to education, a career or a business. In Gray, at para. 38, quoting from Moge:

38 The purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. In Moge v. Moge, at p. 861, para. 70, the Supreme Court explained the principle behind the compensatory model of support as follows:

Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.

121In the case before me, all of the above are applicable. Ms. Fox’s employment, even on a full-time basis, played a secondary role to the career and income of Dr. Fox. Ms. Fox made sacrifices for the sake of the family needs which affected her ability to maximize her earning potential. Ms. Fox did not pursue educational and career advancement opportunities. These same sacrifices which the family benefited from also assisted to enhance the earning potential of Dr. Fox. He was free to pursue his economic goals as a dentist which of course assisted both Ms. Fox and the children as well as himself.

Evidence Applicable to Factors and Objectives in s. 15 of the Divorce Act (Non-Compensatory Basis: Means and Needs)

122The evidence discloses the parties had an affluent lifestyle. This was entirely based on Dr. Fox’s high income from his dental practice.

123Again, the jurisprudence is helpful in directing the court’s focus on the factors relevant to this basis of a claim for spousal support.

124In the decision of Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 44,46 and 48, Lang, J.A. wrote:

[44] In this case, the parties formed a relationship of financial interdependence, which began when the respondent partly depended on the appellant's assistance to complete his education. This permitted the respondent to begin his career at a young age, and to advance that career during the marriage and after its breakdown. This was no doubt an economic advantage to the respondent.

[46] This brings me to the appellant's primary contention on this appeal, namely, that she was economically disadvantaged not by the marriage, but by its breakdown, and in particular by her loss of the parties' standard of living, past and future. [page255]

[48] It follows that the economic disadvantages from the marriage breakdown were more pronounced for the appellant, particularly regarding the reduction in her standard of living.

125There can be no doubt that Ms. Fox suffered an economic hardship as a result of the marriage breakdown. Just before separation in 2003, the family had access to a total income of approximately $400,000. Following separation, without considering child support, Ms. Fox had access to her own income of approximately $40,000.

126That extraordinary reduction in her household income would result in a massive reduction in her accustomed standard of living. There can be no debate she was economically disadvantaged by the marriage breakdown.

Conclusion on Entitlement to Support Based on Non-Compensatory model (Means and Needs)

127The provisions set out in s. 15(5) and (7) of the Divorce Act, and the language of McLachlin, J. in Bracklow, make this basis for spousal support clear.

128Ms. Fox’s entitlement to support, based on her need, is assessed in light of the joint standard of living the parties acquired during the marriage. This standard of living assessment also drives the self-sufficiency objective set out in the Divorce Act and which I discuss next.

129The evidence at the trial, and my findings on that evidence set out above, support the conclusion that Ms. Fox is entitled to support on this basis as well.

Imputation of Income to Ms. Fox

130The position of Dr. Fox is that Ms. Fox could become economically self-sufficient, to a greater degree, either as of the date of separation or now. I find his position is without an evidentiary foundation and without merit.

131This issue is intertwined with Ms. Fox’s obligation to become economically self-sufficient, in so far as practicable, as set out in s. 15 (7)(d) of the Divorce Act.

132The court in Moge addressed the argument made by the payor, that the objective of “promoting self-sufficiency”, if not the only basis of an award of spousal support, is the most important objective a court should consider:

52 All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No single objective is paramount. The fact that one of the objectives, such as economic self-sufficiency, has been attained does not necessarily dispose of the matter. …

53 Many proponents of the deemed self-sufficiency model effectively elevate it to the pre-eminent objective in determining the right to, quantum and duration of spousal support. In my opinion, this approach is not consonant with proper principles of statutory interpretation. The objective of self-sufficiency is only one of several objectives enumerated in the section and, given the manner in which Parliament has set out those objectives, I see no indication that any one is to be given priority. Parliament, in my opinion, intended that support reflect the diverse dynamics of many unique marital relationships. Osborne J.A. of the Ontario Court of Appeal made this point in Linton v. Linton:

In not attaching any particular priority to the factors to be considered and the objectives sought to be achieved in making a spousal support order, it seems to me that Parliament recognized the great diversity of marriages and the need for judges to deal with support entitlement and quantum on a case by case basis.

54 It is also imperative to realize that the objective of self-sufficiency is tempered by the caveat that it is to be made a goal only "in so far as practicable". This qualification militates against the kind of "sink or swim" stance upon which the deemed self-sufficiency model is premised. [Citations removed]

133Although Ms. Fox was relatively young at the date of separation (44), the only real skill set she had was entirely associated with her part-time marketing/sales job at McNeil. At the date of separation, she had worked exclusively for that company and in that job description.

134Ms. Fox considered her primary job was supporting her husband’s career and raising her children. Her job, and career, were definitely considered secondary to that of Dr. Fox.

135It is true that there was no evidence submitted by Ms. Fox that she looked for full-time work at the date of separation or now. I find it is unrealistic and impractical to assume Ms. Fox would do so. She was a part-time employee, with no particular marketable skill set, focused on her children and family. That is how this family functioned. This reality did not change on the date of separation.

136Dr. Fox did not present any evidence of what full-time employment Ms. Fox was qualified to secure.

137The only evidence presented by Dr. Fox as to what Ms. Fox could earn on a full-time basis, was to double Ms. Fox’s current income and impute an annual income to her of $77,279.93.

138This argument must fail for at least two reasons. Firstly, in order for Ms. Fox to turn her current part-time job into a full-time job, the company would have to terminate the employee who is sharing her job. There is no evidence the company would be prepared to do that. Secondly, there is no evidence that Ms. Fox’s income would simply be twice what she is earning now if she was able to turn her part-time employment into full-time.

139The best evidence on this issue is that the only full-time work Ms. Fox could get at McNeil would be working on a machine in the plant.

140I do not think the law on spousal support is that a spouse who had been married 22 years to a professional earning a high income, enjoyed a high standard of living because of that fact alone, worked throughout most of the marriage part-time in an office where she acquired certain work credentials and attained significant seniority in that position, has to throw all of that away and start anew, in order to fulfill her obligation to become self-sufficient. I cannot find that is what is meant by “in so far as practicable”.

Post-Separation Increases in Dr. Fox’s Income

141The jurisprudence on this issue has provided a great deal of guidance as to what a court should consider in deciding whether a recipient should be awarded support based on increases in income of the payor after separation.

142There have been several cases and articles on this issue. In one of the more fulsome decisions on this topic, Thompson v. Thompson, 2013 ONSC 5500, Chappel, J. at para 103 wrote:

103 The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor's earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court's exercise of discretion on this issue:

a) A spouse is not automatically entitled to increased spousal support when a spouse's post-separation income increases.

b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship. .

c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient's contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.

d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor's post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor's education or training. The question of whether the contributions made by the recipient specifically influenced the payor's post-separation success will depend on the unique facts of every case.

e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties' personal and financial affairs became completely integrated during the course of the marriage and the recipient's sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse's role in the relationship and the payor's ability to achieve higher earnings following the separation.

f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor's career.

g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.

h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.

i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.

j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor's employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.

k) Where the payor's post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.

l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient's contributions during the marriage are causally related to the post-separation income increases.

m) Evidence that the payor also made contributions to the recipient's career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases. [Footnotes deleted.]

143I have no hesitation in finding that the evidence supports the conclusion that the spousal support order I make should be based on increases in Dr. Fox’s income after the date of separation.

144The following evidence supports the exercise of my discretion in Ms. Fox’s favour on this issue:

The entitlement of Ms. Fox to support is based in part on a compensatory support basis, which, when all of the factors on this basis are considered, is very strong;
Ms. Fox’s compensatory claim is based on contributions to Dr. Fox’s education and dental practice which is the sole source of his income;
Ms. Fox’s contributions contributed to and influenced Dr. Fox’s post-separation success and growth income;
The relationship was long-term. The parties’ personal and financial affairs were completely integrated during the marriage. The parties for the most part operated out of a joint bank account. The personal account which Ms. Fox had after the birth of L (1995) was for “extra’s” and was not used by the family for everyday expenses;
Ms. Fox’s sacrifices and contributions as a mother, wife, and part-time employee benefitted the family and Dr. Fox in his career, which was the career the family focussed on; and
The skills and credentials that led to post-separation income increases for Dr. Fox were obtained and developed during the marriage while Ms. Fox was subordinating her career for the sake of the family.

145Accordingly, I am satisfied that the post-separation income increases of Dr. Fox should be utilized when inputting his income into the SSAG formula calculations.

Income of Dr. Fox over $350,000.

146In paragraph 84 above, I set out the paragraphs from Halliwell that give direction as to how to deal with a payor’s income that is in excess of $350,000.

147Although this trial decision below pre-dates Halliwell, I found Warkentin J.’s, analysis in Cork v. Cork, 2014 ONSC 2488 on this issue helpful. At paras. 28-34 she wrote:

28 Counsel provided me with their calculations including a variety of income scenarios for both parties. Both counsel agreed that when a spouse's income is more than $350,000.00, even in long marriages such as this, the Court has more discretion in determining the quantum of spousal support.

29 The SSAG's are a useful indicator for determining spousal support regardless of the payor's income. However, when incomes surpass $350,000.00 the objective becomes less about striving to equalize the parties' incomes, even in a long term marriage. In these circumstances, the SSAG calculations are often considered as one part of the overall consideration of factors that determine spousal support.

30 Two factors that tend to increase the quantum of spousal support to the higher end of the range of the SSAG calculations are the length of the marriage and the resulting concept of merger of the parties' economic lives over the course of their marriage. In this case those factors include the fact that the Husband has always been employed in the same line of work, for the same company in its various formations for the entire marriage. The Husband continues in that same employment today. The parties structured their lives and lifestyle based upon the Husband's income.

31 Regardless of the Husband's claim that he did not want the Wife to give up her career, the fact is that the Wife has not worked for a salary since 1996, a period of 15 years prior to their separation. Even when she was working, her salary was modest compared with the Husband's.

32 A significant factor that pushes the quantum of spousal support to the lower end or below the SSAG range is often referred to as a work incentive for the person earning the income that is funding the support payment. In other words, it is not necessarily appropriate to ensure both parties' net disposable incomes are the same or similar when one spouse puts in a significantly greater effort in going to work each day and incurs expenses in order to do so - expenses that the non-working spouse does not incur.

33 Finally, there is the additional factor that the higher the quantum of support paid, the lower the incentive for the non-working spouse to seek employment as is alleged by the Husband. The Husband seeks to have income imputed to the Wife due to her failure to seek employment or to take steps to upgrade her skills.

34 In balancing these factors in a long-term marriage, when the payor's income is above $350,000.00, the recommendation under the SSAG's is that the payment of spousal support range between 37.5% and 50% of the gross income difference between the spouses.

148The “individualized” approach to determining spousal support, when the payor’s income is above $350,000. per drives the determination of where in the support range generated by the SSAG’s, the order should be made.

149Counsel for Dr. Fox submitted that the spousal support award should be based on Dr. Fox’s income of $350,000. per annum and an imputed income to Ms. Fox of $77,279. (full-time at same job) when the ranges for spousal support are determined. Counsel for Ms. Fox rejected both of those submissions and argued that the spousal support should be based on Dr. Fox’s actual income, and that no additional income should be imputed to Ms. Fox.

150In this case, once entitlement to support has been established, there is no reason why the SSAG’s should not be used to determine the amount of spousal support payable. An “individualized approach” is necessary because Dr. Fox’s income is over $350,000.

151The harder question in this case is quantum of spousal support. A less challenging question is duration. This is a marriage of over 20 years and the SSAG calculations, under the without child formula, provide that the support is payable for an indefinite period.

152As set out in para. 110 of Halliwell:

110 It is important to note that s. 3.2.2 recognizes that entitlement plays two different important roles in determining spousal support. First, entitlement is a threshold issue. Second, entitlement determines location within the formula ranges or to justify departure from the ranges.

Quantum and Duration

153The SSAG’s set out the factors that should be considered when deciding the issues of quantum (range). As set out above, the basis for entitlement to spousal support drives this analysis that the individualized approach requires.

154I must also consider the financial circumstances of the parties as of the date of any order for spousal support. The parties’ most recent financial statements and the evidence at trial, assist me on this issue.

155Dr. Fox’s financial statement discloses a net worth (after adjusting the mortgage on his residence, to 50 percent, to coincide with this asset set out as 50 percent of the value, and adjusting his cottage property to have a value of approximately $900,000., as the evidence at the trial suggests, is a more realistic value), of over two million dollars. This is a very rough calculation and accepts his notional costs and disposition expenses on the real property and his R.R.S.P.’s, and the “arrears” of support Dr. Fox included on his financial statement. I also note Dr. Fox included two of the real estate properties at only 50 percent of the value. The other 50 percent is registered to Dr. Fox’s partner though there was no evidence that she put any of her own money into these properties, except for a down payment on one of the properties from an inheritance she received.

156Ms. Fox’s financial statement discloses (after adjusting for the increase to a debt to a sister as of the date of trial), a net worth of approximately $200,000.

157Counsel for Dr. Fox cross-examined Ms. Fox on her credit card statements to demonstrate that Ms. Fox spends a great deal of money on eating out with family, others, and on other entertainment. Certainly, Ms. Fox spends a lot in this category.

158I do not know if that is an extraordinary amount, compared, for example, to what Dr. Fox spends in this category. Dr. Fox did not complete either his expense or his budget columns in his most recent financial statement. In any event, as set out in the SSAG’s and the case law, the quantum of spousal support is not driven by budgets any longer, but by “income sharing” (see Cassidy v. McNeil, 2010 ONCA 218 at para. 68).

159Even accounting for some inaccuracies in both the parties’ financial statements, it is clear that Dr. Fox has a significantly higher net worth, and an obviously greater income-earning potential after this lengthy marriage, than does Ms. Fox.

160At s. 9 of the SSAG’s the following principles are set out with respect to range and duration:

9 Using the Ranges

The formulas generate ranges for amount and for duration as well unless the conditions for indefinite (duration not specified) support are met. The ranges allow the parties and their counsel, or a court, to adjust amount and duration to accommodate the specifics of the individual case in light of the support factors and objectives found in the Divorce Act.

161The factors that are set out and discussed in the SSAG’s (for without child formula), which a court is to consider in deciding where in the range the spousal support order should be are:

Strength of any compensatory claim;
Recipient’s needs;
Needs and ability to pay of payor;
Work incentives for payor;
Property division and debts; and
Self-sufficiency incentives.

162The jurisprudence and the SSAG’s make it clear that the mid-range number generated by the SSAG’s is not the default position. In the April, 2016 User’s Guide to SSAG’s, the authors had this to say on determining where in the range the order should land:

9 Choosing Location Within the Range (SSAG

Chapter 9)

Determining the ranges for amount and duration under the SSAG formulas is only the beginning of the real analysis by lawyers, mediators and judges. The ranges are quite broad, under both formulas, especially where the disparity in incomes is large or the marriage is long. Too often, the lawyer for the recipient asks for the high end of the range, the lawyer for the payor offers the low end, and then the court opts for the mid-range, all with little in the way of analysis or explanation. There has been a distinct tendency in the case law to “default” to the mid-range for amount, an approach which should be avoided, in our view. On duration, we see much less of a tendency to default to the middle of the range, and more explanation for the outcome.

The mid-point of the SSAG ranges for amount should NOT be treated as the default outcome. It is not the “norm”, with the upper and lower ends of the range reserved for exceptional cases. Too often judges treat the mid-point as such, especially under the with child support formula. Our review of SSAG cases has revealed that in 60 per cent of all the reported with child support cases spousal support is ordered at the mid-point. A mid-point outcome is typically treated as if it does not require any explanation, with outcomes above or below being more likely to result in reasons.

Conclusion

163In this case, I find that the mid-range (when the without child formula is used), is the appropriate quantum of spousal support taking into account the following factors:

The length of the marriage, the needs of Ms. Fox, the ability of Dr. Fox to pay support, and the strength of Ms. Fox’s compensatory claim favour an award in the high end of the range;
The work incentive for the payor, taking into account his age and health; favour an award in the low end of the range.

Summary

164I have used the most recent DivorceMate Software to determine the range of spousal support and included the following assumptions:

Dr. Fox’s income - $578,236. (average of incomes from 2014, 2015, and 2016);
Ms. Fox’s income - $56,647.;
No dependent children; and
Mid-range for support.

165I note that based on my support order, the net disposal income of the parties is approximately 60%/40% in favour of Dr. Fox.

166I have attached the DivorceMate calculations as Schedule ‘A’ to this decision. If there are any clerical errors in the input figures, I can be spoken to with respect to same.

167Commencing January 1, 2017, Dr. Fox shall pay spousal support for an indefinite period in the amount of $16,734. per month.

Claim for Support Adjustment to July 7, 2006

168The parties officially separated on November 13, 2003. The parties operated their income and expenses, through their joint account, from the date of separation to the end of 2005, as they had before separation. Ms. Fox makes no claim for spousal support prior to 2006.

169As of January 1, 2006, Dr. Fox paid the sum of $8,187. (tax free) per month. I do not know whether Ms. Fox agreed to this support number; it does not matter for my decision if she did or not. This monthly amount was, according to an exhibit, being correspondence dated December 2, 2005, from Dr. Fox’s lawyer at that time, to Ms. Fox’s lawyer at that time, was apportioned as $3,477. per month for child support, based on the set-off formula in s. 9(a) of the Child Support Guidelines, SOR/97-175, (“CSG’s”), and $4,710. as spousal support. Justice Miller repeated this understanding in para. 9 of the reasons for her interim order dated March 3, 2014. There is a reference in the reasons, to Dr. Fox’s income being approximately $390,333. in 2003. The monthly support figure paid by Dr. Fox could have been based on that income figure.

170I do not rely on the contents of the letter for the truth of its contents. Nor do I rely on Justice Miller’s reasons to bind me in my findings on income, support paid, or my decision.

171Ms. Fox commenced her application on July 7, 2006. Although not entirely clear as to what date in 2006 Ms. Fox seeks an adjustment, I conclude that the claim for support adjustment will be considered only back to this date, and not to January 1, 2016. The analysis for support claimed prior to the commencement of an application is a different analysis. Given how far back the claim is being made, I find the six months before the application was commenced will be treated in the same way as the voluntary payments up to December 31, 2005. There will be no support adjustment for any period before July 1, 2006.

172An interim motion for support was first brought before the court on February 10, 2014. Justice Miller gave reasons for her March 3, 2014 order. She made her order based on the information she had at that time. There is no dispute that Justice Miller found Dr. Fox’s income to be:

i. For the period June 1, 2013 through to October 22, 2013 - $684,000. per annum;

ii. For the period after October 22, 2013 and going forward - $400,000. per annum.

173The parties filed an agreed statement of facts as to the amounts Dr. Fox paid in support. The amount of $8,187. per month is not apportioned between child and spousal in the statement of agreed facts.

174Ms. Fox seeks a lump sum payment from Dr. Fox to compensate her for what she alleges was an underpayment of child and spousal support since July, 2006 to the present. The claim is based on the undisputed fact that the voluntary payment was determined, at least by Dr. Fox’s lawyer, likely on an income of close to $400,000. The court order of March 3, 2014 determined that the support going forward was calculated on Dr. Fox’s income being $400.000. Based on the agreement between the parties’ experts as to Dr. Fox’s income, this was clearly an incorrect income figure. In one year, 2010, it was one-half of Dr. Fox’s agreed upon income of $831,000.

175Although this claim was argued as one for “retroactive support”, as the jurisprudence makes clear, in the time-frame Ms. Fox seeks an adjustment for, this is not a claim for retroactive support.

176The decision in Kerr v. Baranow, [2011] S.C.R. 269, affirmed the principles set out in three earlier Ontario Court of Appeal decisions, namely; Mackinnon v. Mackinnon, 2005 CanLII 13191 (ON CA), [2005] O.J. No. 1552; Fisher, and Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. no. 1158, that post-application support is not “retroactive support,” which requires the more detailed analysis that claims for support in the period before the commencement of an application do. The court is simply making the order that should have been made in the first place, if all the information had been before the court then.

177Of course, the court must still consider all of the circumstances of the parties before making an order for a lump sum adjustment, including hardship to the payor of making a large order for a retroactive adjustment to support, as well as the effect of the quantum of support on the incentive of the payor to keep working.

178The issue of delay in pursuing the appropriate order for support must also be examined by me. In Thompson, Chappel, J. wrote on the issue of delay of the adjustment payment as follows:

74 With respect to the concern of payor spouses in retroactive claim cases about the recipient's delay in pursuing relief, the Supreme Court noted in Kerr v. Baranow that there are two important underlying interests at stake. First, there is the payor's interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. In regard to the issue of conduct, the court clarified that the focus must be on "conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure. Consideration of the circumstances of the spousal support claimant must focus on that spouse's needs both at the time the spousal support should have been paid and at present.

179Counsel for Dr. Fox placed great emphasis on the extraordinary delay (2006-2017) in the issue of the spousal support getting to trial. He is correct; it is a long delay.

180I have reviewed the exhibit filed which sets out the history of disclosure (i.e. problems) in obtaining timely financial disclosure from Dr. Fox. The parties agreed on the history of many of the requests made by Ms. Fox’s prior counsel to Dr. Fox’s counsel, set out in this exhibit. Many of the requests were answered by Dr. Fox, though often not in a timely manner. I have also reviewed that correspondence between counsel, which were filed as exhibits, and which set out numerous requests by Ms. Fox for disclosure from Dr. Fox. I have considered the delay in getting the jointly retained valuator to complete the valuation of Dr. Fox’s dental practice. I have considered the history of the accountant/valuator, Alison Sawatzky, and her involvement in calculating Dr. Fox’s income. Her initial report had to be basically discarded when it was learned at mediation that Dr. Fox had sold half his practice just prior to the last mediation session. As a result of this sale, the basis Ms. Sawatsky had used to calculate Dr. Fox’s income was incorrect. I have considered the numerous court orders for ongoing financial disclosure to be produced by Dr. Fox that were sought and made by the court.

181I have considered the fact that Dr. Fox did not ever comply with several orders for specific disclosure, including the one made by Bielby, J. on September 16, 2016, to produce proof of his payment of s. 7 expenses for the children. That proof was not produced as per the court order. In a ruling, brief reasons to be released separately, I did not allow this documentation to be produced at the commencement of the trial. There were other orders for disclosure that were not fulsomely complied with, if at all.

182Lastly, I have considered Dr. Fox’s testimony and his demeanour as he was questioned and cross-examined on his personal financial matters. Even at the trial Dr. Fox did not answer questions about his finances from opposing counsel in a forthright and fulsome manner. He often answered with “I do not know”, when asked how properties were purchased, when mortgages were discharged, and how they were paid off. By the time this matter got to trial, Dr. Fox’s financial history and circumstances should have been an “open book”. They were not.

183I am satisfied after considering all of the above that Dr. Fox must bear the bulk of the responsibility for the extensive delays in this matter getting to trial.

184I say this for two reasons. It was Dr. Fox’s financial circumstances that were complicated. Ms. Fox required complete disclosure with respect to his finances before she was able to make informed decisions about the appropriate terms of a settlement with her husband. Ms. Fox’s financial affairs, including her income, were very straightforward.

185Secondly, the sheer volume of requests for disclosure, by correspondence and court order, offer to the court a tone and attitude of Dr. Fox that disclosing fulsome and candid financial disclosure of everything about his income, assets and debts, was not a top priority for him.

186There was no point in Ms. Fox coming to court before she had a complete financial picture. In March 2014, she went to court with the evidence she had at that time on Dr. Fox’s income. It was incorrect. It was unlikely that any court on a further interim basis would adjust the “without prejudice” support order, made March, 2014. That effort would have been expensive, and given the nature of interim motion litigation, I dare say, a waste of time.

187The courts have recognized the above reality. Although, in a different context, because Ms. Kerr did not bring any interim motion, Cromwell, J., in Kerr, wrote this about her being faulted for not bringing an interim motion for support. At para. 216 he wrote:

216 Second, the Court of Appeal in my respectful view was wrong to fault Ms. Kerr for not bringing an interim application, in effect attributing to her unreasonable delay in seeking support for the period in question. Ms. Kerr commenced her proceedings promptly after separation and, in light of the fact that the trial occurred only about thirteen months afterward, she apparently pursued those proceedings to trial with diligence. There was thus clear notice to Mr. Baranow that support was being sought and he could readily take advice on the likely extent of his liability. Given the high financial, physical, and emotional costs of interlocutory applications, especially for a party with limited means and a significant disability such as Ms. Kerr, it was in my respectful view unreasonable for the Court of Appeal to attach such serious consequences to the fact that an interim application was not pursued. The position taken by the Court of Appeal to my way of thinking undermines the incentives which should exist on parties to seek financial disclosure, pursue their claims with due diligence, and keep interlocutory proceedings to a minimum. Requiring interim applications risks prolonging rather than expediting proceedings. The respondent's argument based on the fact that a different legal test would have applied at the interim support stage is unconvincing. After a full trial on the merits, the trial judge made clear and now unchallenged findings of need on the basis of circumstances that had not changed between commencement of proceedings and trial.

188I find that in this case the reason for the delay in getting the matter to trial rests exclusively on Dr. Fox because of his slow, late, and non-existent financial disclosure. I have also considered the need of Ms. Fox to receive an appropriate amount of spousal support, and the ability of Dr. Fox to pay the support he should have paid.

189Dr. Fox’s financial circumstances since July 2006, have flourished. Both his income and his assets have increased. Ms. Fox to a large extent because of debt related to this litigation, is in a similar, or somewhat worse financial situation since the date of separation. Dr. Fox has had notice since July 2006 that Ms. Fox was seeking appropriate support back to the date of separation. There is no legal or policy reason why the order for spousal and child support should not be based on Dr. Fox’s actual income in each year back to July, 2006.

Child Support – July 1, 2006 to June 30, 2016

190The trial was undoubtedly focused on the issues related to spousal support and what lump sum payment, if any, should Dr. Fox pay to Ms. Fox for alleged underpayment of support. As set out above, Ms. Fox’s claims and the calculations stretch back to the commencement of the application: July, 2006. When I tried to do the analysis in order to calculate the support owing over this period, I determined I did not have sufficient information as to the residential arrangements of the children and the children’s costs in the parents’ households.

191At the trial, there was very little specific evidence about the children’s residential arrangements, in high school and after high school, and there was no evidence as to the children’s costs in the households. There were some general statements about Dr. Fox paying for most of the s. 7 expenses, though I had no documentary evidence as to those costs. Further, there was some oral evidence that Dr. Fox paid for the post-secondary costs of the children, though RESP’s were used to cover the first year’s expenses of the children. Both parties paid for expenses and helped out financially as they could.

192In order to calculate any retroactive adjustment to the child and spousal support paid by Dr. Fox, the correct information has to be input into the DivorceMate software. In order to do that, the court must determine the children’s residences, the children’s costs, and each parent’s respective obligation to pay both day-to-day costs and s. 7 expenses.

193The SSAG: The Revised User’s Guide chapter 8, section (k), makes it clear that applying the adult child formula to determine the proper spousal support payable is “complex and difficult […] with many moving parts and much potential for errors along the way.” I was given many calculations based on different assumptions about the children and the parties’ incomes. I was given little by way of rationale for the number, evidence, or jurisprudence as to which calculation I should accept.

194The evidence and submissions of the parties on these issues, as I set out, is sparse, contradictory, and disorganized. On a couple a couple of occasions, the parties advised the court that they were trying to work out what amounts payable by Dr. Fox prior to trial were attributable to child support based on their agreement as to what the children were doing and where they were living. I did not receive that agreement before the end of the trial.

195I sent the parties an endorsement on September 27, 2017, hoping to receive such an agreement. I set out the difficulty I was having on this issue because of the lack of evidence at the trial. I have filed this endorsement as an exhibit. I requested that the parties forward an agreement as to (1) where the children were living during the periods that support was claimed; (2) the specific financial obligation of Dr. Fox as a result of any time-sharing between the parents that the children engaged in; and (3) post-secondary time-sharing and any obligation of Dr. Fox to pay support during these periods. If the parties could not reach an agreement, they were to attend before me to discuss same.

196The parties and their counsel attended before me on October 13, 2017 to make submissions on how I should calculate the support adjustment back to 2006, based on the evidence from the trial. To their credit, the parties were able to agree, for the most part, as to where the children resided post-separation. There were a few years where the parties disagree as to time-sharing with respect to B during the summer months between university. I have resolved that dispute below. The parties signed and filed their agreement as to where the children resided post-separation.

197The parties agreed that Dr. Fox had physical access to/custody of the children for over 40% of the time over the course of each year dating back to 2006, thus meeting threshold in s. 9 of the CSG. The parties were unable to agree on the financial obligation of Dr. Fox with respect to child support during these periods. The two positions put to me on October 13, 2017 can be summarized as follows:

i. Counsel on behalf of Ms. Fox submitted that, even though this was admittedly a shared parenting regime, because there was no evidence from Dr. Fox as to the increased costs of access or any other budgets or costs related to the children, the decision in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, demands that the court default to the table amount of support being paid.

ii. Counsel on behalf of Dr. Fox submitted that it would be impossible to calculate the costs related to the children in Dr. Fox’s home or as a result of his increased access costs. The parties should calculate the child support payable based on s. 9(a) of the CSG’s – i.e. the set-off formula – to determine the child and spousal support payable by Dr. Fox during this period.

198Counsel for Ms. Fox is incorrect. Defaulting to the table amount of support is not what the court set out as the appropriate regime to calculate child support in a shared parenting situation. In fact, the court said the opposite.

199In Contino, Bastarache J. specifically rejected the mother’s position that there was a presumption in favour of the table amount and that there was an onus on the party seeking a deviation to establish on “clear and compelling evidence” that deviation from the table amount is in the child’s best interest (Contino at para. 22).

200In Contino at paras. 24 and 27, Bastarache J. wrote:

24 While ss. 3(2), 4, 5 and 10 (see Appendix) provide a framework establishing a structured discretion, each provision incorporates distinct factors which are absent in s. 9. Sections 3(2) and 4 specifically prescribe that the amount in the Guidelines is mandatory unless the court considers that there are reasons to find that it is inappropriate. Section 9 does not contain such a presumption. As submitted by the father, if the drafters of the Guidelines had intended this approach, they would have used the same words to provide for direction in all of the relevant sections. In fact, the wording of s. 9 is imperative. The court "must" determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. There is no discretion as to when the section is to be applied: discretion exists only in relation to the quantification of child support (J. D. Payne and M. A. Payne, Child Support Guidelines in Canada 2004 (2004), at p. 254).

27 The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail (see Wensley, at p. 90; Payne and Payne, at p. 254; Jamieson v. Jamieson, [2003] N.B.J. No. 67 (QL), 2003 NBQB 74, at para. 24). Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support.

201In Contino, the court does state that after considering all the factors in s. 9, the Table amount might remain the proper quantum of child support to be paid. As set out in paras. 30 and 31 of Contino, the journey (method) to the destination (quantum) is what matters:

30 These comments may lead some parents to think that there should be an automatic reduction in the amount of child support in a case such as this one. In my opinion, there is only an automatic deviation from the method used under s. 3, but not necessarily from the amount of child support. As submitted by the mother, it is quite possible that after a careful review of all of the factors in s. 9, a trial judge will come to the conclusion that the Guidelines amount will remain the proper amount of child support (see, e.g., Berry v. Hart (2003), 233 D.L.R. (4th) 1, 2003 BCCA 659).

31 Thus, not only is there no presumption in favour of awarding at least the Guidelines amount under s. 3, there is no presumption in favour of reducing the parent's child support obligation downward from the Guidelines amount (Wensley, at pp. 89-90).

202Bastarache J. went through the three factors in s. 9 and set out how the court should consider each factor. Courts and lawyers have struggled with the application of the factors ever since Contino. Often counsel and the courts resort to the s. 9(a) set-off because of lack of evidence to consider the s. 9(b) and s. 9(c) factors.

203I find on the facts of this case, the fairest way to deal with the quantification of the retroactive adjustment, and not an order for child support going forward, is to complete the DivorceMate calculations with inputs that give the parties approximately equal Net Disposal Income (“NDI”) throughout the relevant period. This approach is consistent with a strong trend in Ontario to equalize net incomes in cases where there is shared parenting (SSAG: The Revised User’s Guide, chapter 8, section (f)).

204There was no evidence at the trial from either party for me to consider under factors 9(b) or 9(c) of the CSG. It would be artificial to try to create children’s budgets or calculate the increased cost of access, starting 11 years ago up to 2016. The court must not make "common sense" assumptions about costs incurred by the payor parent (Contino at paras. 56-57).

205An order for retroactive adjustment is discretionary. I must consider the relevant legislation and jurisprudence in this area. The children are all adults now. One of them has his own child. This order for adjusted support is appropriate and justified because Dr. Fox grossly underpaid his support obligations based on his actual income.

206I have calculated DivorceMate numbers for the years 2006 and 2007 to test the above method of determining child support. As set out in the agreement, the three children lived with their parents in a true shared parenting arrangement (more than 40% of the time with the father). If the DivorceMate software is run with the shared parenting “with child” formula and Ms. Fox is paid spousal support in the low range, the parties have virtually identical NDI.

207When, pursuant to the agreement, one or more of the children were away at school during the year and came home for the summer months, I have run the DivorceMate software assuming shared parenting for the children (and later, child) still in high school and shared parenting for the summer months for any child away at post-secondary school. I find that the children went back and forth as they wished to either parent’s household, which is virtually a shared parenting arrangement. Counsel shall calculate the retroactive support awards as such. In the case of shared parenting, the spousal support should be in the low range “with children” and “with shared parenting” on DivorceMate so that the parties have approximately equal NDI.¹

208I understand that counsel can simply choose “50/50 NDI split under “options” for support scenarios within the DivorceMate software which will then determine child and spousal support such that it equalizes the parties’ NDI. Counsel may decide that is the simpler option. However counsel run the numbers, the end result is that during any period the parties had the children in a “shared parenting” arrangement, their NDI’s are to be equal.

209I was advised by counsel that the DivorceMate software has changed at least once since 2006 because of changes in tax rates, and adjustment to the CSG’s. I do not have the appropriate software to ensure my calculations are correct. Counsel for the parties do.

210The parties, as will be clear from the next section, will have to run the DivorceMate calculations again based on my findings in these reasons. I have relied on the agreement of the parties as to where the children resided with the parents. Any dispute between the parties I resolved by finding they lived in a shared parenting arrangement throughout the post-separation years, including the summer months.

211The following are my findings which determine the input data for the DivorceMate calculations.

Conclusion

212The parties shall recalculate the DivorceMate tables from July 2006 to June 30, 2016 with the following inputs:

The actual incomes of the parties as set out in these reasons at paras. 95 and 98.
Dr. Fox to pay child support for three children in a shared parenting arrangement with the spousal support payable at the low range.
Dr. Fox to pay child support for each child in post-secondary education for the (four) summer months only, on a shared parenting arrangement, to June, 2016. This applies for any period during which the children were in post-secondary education. The appropriate range in the SSAGs with shared parenting shall be utilized to ensure the parties have the same NDI depending on how many children are receiving support during the relevant months.
When child support is no longer payable (commencing July 1, 2016), the spousal support shall be in the mid-range of the SSAG’s.

213The above re-calculation by the parties will produce a lump sum amount owing by Dr. Fox. From this amount shall be deducted:

The actual amounts paid by Dr. Fox during the above period, the amounts paid for his child support obligation to be deducted first.
The equalization payment and any pre-judgment interest on that payment that may be owing as per the order of Bielby J., dated April 20, 2017.
A fair and reasonable deduction for tax consequences of the lump sum spousal payment which has no tax implications to Dr. Fox or Ms. Fox.

214If the parties cannot agree on the tax consequences to arrive at a “net” after-tax amount, it is recommended that they jointly retain an accountant to assist them in arriving at the net amount. If the parties cannot agree on the process, or the tax deduction, this is a decision that I will decide with the appropriate evidence.

215I expect counsel to work together to create the tables which include the above inputs. I will not re-visit the decision I have made regarding those inputs, based on my findings above as to what child support Dr. Fox should pay and why.

Pre-Judgment Interest (“PJI”)

216The above calculations will result in an amount owing from Dr. Fox to Ms. Fox for support adjustment. I note counsel on behalf of Ms. Fox calculated the alleged amounts owing for PJI on a yearly compound basis.

217I heard no submissions from either counsel as to whether P.J.I. should be paid or, if it should, how to calculate the amount owing.

218I heard no submissions as to whether I should exercise my discretion to award P.J.I. pursuant to s. 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

219The order of Bielby, J. dated April 20, 2017 provides that if any PJI is payable on retroactive support, then PJI will be calculated on the equalization payment and offset against that interest.

220If counsel are not able to agree on this issue, they can make submissions to me at the same time as the tax issue. If they resolve the tax issue, they may attend on the P.J.I. issue only.

Remaining Ancillary Issues

Spoliation of Evidence

221This claim arises from the destruction of certain financial and business records related to Dr. Fox’s dental practice. The documents were not patient records; they were business records, such as bank statements, cancelled cheques, and other bookkeeping records. There is no dispute that Dr. Fox ultimately burned and/or shredded these documents.

222Ms. Fox alleges that Dr. Fox was in possession of certain business records that would have proved the extent of her work for and contributions to Dr. Fox’s dental practice. Ms. Fox seeks a finding that Dr. Fox intentionally destroyed these business records. As a result of this finding, Ms. Fox submits I should draw an adverse inference against Dr. Fox on the issue of how much Ms. Fox worked in his dental practice.

223The background as to how these records were destroyed is not seriously in dispute. In 2010, when Ms. Fox was moving from the matrimonial home at Pintail Court in Guelph to her present residence at 21 Grey Oak Dr. in Guelph, she found boxes of dental practice business records. Ms. Fox testified there were eight banker’s boxes of records. Dr. Fox testified there were one or two boxes. Ms. Fox called Dr. Fox in 2010, and asked him what he wanted done with the boxes. She complied with his request that she deliver the boxes to his house. Dr. Fox kept the boxes for a few years before burning and/or shredding the records.

224There is a dispute in the evidence as to where Dr. Fox actually stored the records – in his office or his basement – prior to destroying them. There is also a dispute as to how they were actually destroyed and how many boxes there were.

225Ms. Fox set out in her original Application, dated July 7, 2006, that she worked in Dr. Fox’s dental practice. Dr. Fox responded to those allegations in his Answer, dated September 25, 2006 and denied that Ms. Fox worked to the extent she claimed. Ms. Fox’s involvement in the dental practice was a live issue from the outset. This evidence impacted on her claim for spousal support based on a compensatory basis.

226Ms. Fox amended her application in November, 2016 to allege that Dr. Fox deliberately destroyed relevant evidence while the litigation was on-going. She claimed damages in the amount of $200,000. for spoliation of evidence and/or any other remedy available at common law. Ms. Fox in her pleading and at trial submitted that Dr. Fox destroyed the records deliberately to thwart her claim for compensatory support based on her role in Dr. Fox’s dental practice.

227Dr. Fox did not amend his Answer to refute this allegation, though he disputed it in his testimony. Dr. Fox testified that he did not destroy these documents to thwart Ms. Fox’s claim for compensatory support. Dr. Fox testified that destroying these financial records was completely innocent.

The Law

228The earliest case which dealt with spoliation as a rule of evidence dates to the 19th century. In St. Louis v. R., (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649 at pp. 652-653, the court set out that spoliation/destruction of evidence gives rise to a rebuttable presumption that the evidence destroyed would have been unfavourable to the party who destroyed it.

229In the more recent case of McDougal v. Black and Decker Canada Inc., 2008 ABCA 353, 97 Alta. L.R. (4th) 199, the Alberta Court of Appeal set out a summary of the Canadian law of spoliation at para. 29 as follows:

29 In conclusion, therefore, I would summarize the Canadian law of spoliation in the following way:

Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending.

The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case.

Outside this general framework other remedies may be available -- even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court's rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs.

The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open.

Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response.

Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court's general discretion with respect to costs and the control of abuse of process.

230This decision did nothing to alter the principles set down in the leading case in Ontario, which is Spasic v. Imperial Tabacco Ltd (2000), 2000 CanLII 17170 (ON CA), 49 O.R. (3d) 699 (C.A.), nor in the decision of St. Louis.

231There is a duty on parties to preserve documents that may be needed in litigation. In the decision of Doust v. Schatz, 2002 SKCA 129, 227 Sask. R. 1, Tallis, J.A. described this as an important issue for the integrity of the administration of justice. At para. 27, he wrote:

27 The integrity of the administration of justice in both civil and criminal matters depends in a large part on the honesty of parties and witnesses. Spoliation of relevant documents is a serious matter. Our system of disclosure and production of documents in civil actions contemplates that relevant documents will be preserved and produced in accordance with the requirements of the law…A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action. The process of discovery of documents in a civil action is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial. [Citations Removed.]

232The evidence must establish that the destruction of the relevant documents was intentional. Proof of mere carelessness or even negligence is not sufficient. (See Gutbir v. University Health Network, 2010 ONSC 6752, 195 A.C.W.S. (3d) 1035 at paras. 20, 22.)

The Evidence

233The evidence discloses that Ms. Fox had the documents in her possession for 7 years post separation, until she delivered them to Dr. Fox at his request in 2010. Dr. Fox had the documents for approximately two years before he destroyed them.

234There is no dispute that the litigation had commenced at the time the records were destroyed and that Ms. Fox’s involvement in Dr. Fox’s dental practice was a live issue. The records related to Dr. Fox’s practice. There was a good possibility the documents would show some work done by Ms. Fox in the practice.

235Dr. Fox testified that he asked his lawyer at the time if he could destroy the documents. He testified that they were taking up too much room, wherever they were being stored – at his home or his practice. Dr. Fox testified that his lawyer did not insist that he preserve them and just discussed concerns as to whether Canadian Revenue Agency might need them. He testified he asked his accountant about that issue and was assured there was no problem because of their age.

236I am skeptical that Dr. Fox spoke to his counsel or his accountant prior to destroying these documents. If he did, I am skeptical that he told these professionals exactly what the documents were. I am certain his lawyer at the time would not tell Dr. Fox he could destroy business records that she knew would likely be needed in the litigation.

Analysis and Decision

237The current state of the law in Canada, as set out above, is that there must be a finding that the destruction of the documents was intentional, not merely careless or that the documents were destroyed through negligence.

238I simply do not believe Dr. Fox’s testimony on the issue of spoliation. He seemed to make it up as he went along. For example, at trial, he said he never looked inside the boxes. At his questioning on November 3, 2014, at questions 652 to 658, he said he knew they were his practice documents. He offered no explanation for the difference in this evidence.

239Dr. Fox also testified that these documents were taking up too much space, at first in his furnace room and then at his office. This makes no sense, as he was adamant that there was at most two boxes.

240I am satisfied on a balance of probabilities that Dr. Fox intentionally destroyed his bank and business records. A rebuttable presumption arises that Dr. Fox destroyed these records because they would serve to disprove his claim that Ms. Fox did little to no work in his practice.

241I am not satisfied on the testimony of Dr. Fox alone, that he has rebutted the presumption that arises from the evidence. I do not believe his testimony that his experienced family law lawyer at the time basically gave him the go-ahead to destroy these documents while they were possibly needed for what was still on-going litigation. This suggestion of Dr. Fox does not seem plausible.

242Once Dr. Fox had the records, it was his responsibility to preserve them. He knew or ought to have known that all his business records might be necessary in the litigation. He was under an obligation, as a party involved in litigation, to maintain all potentially relevant documents in his possession.

243As set out above, to date there has been no Canadian court which has recognized the independent tort of spoliation which would result in a damage award. The applicant has made such a claim. In this case, I find it is not necessary on these facts to decide whether such a tort exists.

244In this case, the destroyed documents are not the only piece of evidence that Ms. Fox has at her disposal to prove her compensatory support claim. First of all, she found some similar documents prior to the trial and was able to rely on them at the trial. I accept her testimony that the destroyed documents would have shown similar work by her in the practice as those documents. Secondly, Ms. Fox offered witnesses, whose testimony I accepted, which assisted in proving her claim.

245Accordingly, in this case, the “spoliation inference” as a remedy, ameliorates the effects of the spoliation of the documents. (See Spasic at para. 22.)

246As a result, I draw an adverse inference that the destroyed documents would have produced documentary evidence that would not have been helpful to Dr. Fox. This adverse inference is one further evidentiary piece that satisfies me that Ms. Fox has a significant compensatory support claim, based in part of her work in Dr. Fox’s dental practice.

Contempt Motion

Evidence

Contempt Motion

247Ms. Fox brought a motion to find Dr. Fox and Ms. Van Delft in contempt of the consent order of Justice Bloom dated June 9, 2015. Paragraph one of that order reads as follows:

On an interim interim without-prejudice basis, the following properties shall not be sold or further encumbered, pending a return of the Applicant’s motion to add Wendy Van Delft as a party to this action:

a. 110 Maltby Road West, Puslinch, ON, N1L 1K4

b. 86 Merion Street, Guelph, ON, N1H 2M2;

c. 1011 Parkholme Drive, Gravenhurst, ON, Lot 2, Plan M-256;

d. 218 Speedvale Avenue East, Guelph, ON, N1E 1M7.

248The provisions of that order were continued by Justice Ricchetti, again on consent, on June 30, 2015.

249As the litigation continued there was an order of Justice Bielby, dated June 28, 2016, that Dr. Fox was to make his best efforts to have 86 Merion St., Guelph and 110 Maltby Rd. W. Guelph, transferred into his name and Wendy Van Delft as joint tenants.

250On September 13, 2016 Justice Bielby ordered that the properties in the name of Dr. Fox’s spouse were to be transferred to Dr. Fox and his spouse within 60 days. The Merion St. transfer into joint names took place November 18, 2016.

251After this date, the Merion St. property was listed for sale. Ms. Fox saw the “For Sale” sign on the property in the spring of 2017, and learned that the property was scheduled to be sold in June, 2017.

252Ms. Fox brought a motion to prevent the sale of the property. Justice Bielby on April 4, 2017, ordered that Dr. Fox and the co-owner, Wendy Van Delft, were restrained from completing the sale. On April 11, 2017, the sale of this property was ordered to proceed. The net proceeds of the sale were to be held in trust by a law firm not connected to either of the parties.

253The position of Ms. Fox is that Dr. Fox deliberately breached the order prohibiting him from selling the Merion St. property. Ms. Fox seeks a payment to her of $50,000. for this contempt of a court order. The position of Dr. Fox is that he believed the original order of Justice Bloom, directing that he not sell or encumber this property, was no longer applicable because that property had been transferred into his and his new partner’s name. Dr. Fox relies on the language in the original order which stated that the prohibition with respect to the sale of the properties set out in that order was “pending a return of the Applicant’s motion to add Wendy Van Delft as a party to this action”.

254There was no evidence as to why Ms. Fox did not proceed with that motion to add Ms. Van Delft as a party. The order made June 28, 2016, on consent, ordered that the Merion St. property be transferred to Dr. Fox and Ms. Van Delft as joint tenants. I do not know why the original motion did not proceed based on the evidence I heard and read on this issue.

The Law

255The law on civil contempt is clear. As set out in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at paras. 32-35, there are three elements to civil contempt which must be established beyond a reasonable doubt. These elements are:

32 Civil contempt has three elements which must be established beyond a reasonable doubt…These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases…

33 The first element is that the order alleged to have been breached "must state clearly and unequivocally what should and should not be done"… This requirement of clarity ensures that a party will not be found in contempt where an order is unclear… An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning...

34 The second element is that the party alleged to have breached the order must have had actual knowledge of it… It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).

35 Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels… The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily. [Citations Deleted.]

256At para. 38 of Carey v. Laiken, the court wrote:

38 It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice… The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test "too high" and result in "mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge" ... Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt... [Citations Deleted.]

257As a matter of procedure, the Supreme Court of Canada held that, as a general rule, proceedings are bifurcated into a liability phase where the case on liability proceeds and a defence is offered and, if liability is established, a penalty phase. Liability and penalty are discrete issues. This procedure gives the contemnor the opportunity to purge his/her contempt, which can bear on penalty and even allow the court to revisit its initial contempt finding (see Carey v. Laiken at paras. 18 and 66.)

258There are numerous options available to the court if a person is found to be in contempt, such as a fine, a penalty payable to the opposing party, incarceration, staying a conviction of contempt, and ordering costs and/or increased costs.

Analysis and Decision

259There is no doubt on the evidence that Dr. Fox and Wendy Van Delft are in contempt of the order dated June 9, 2015. The prohibition against selling or encumbering certain properties until the Applicant had brought a motion to add Ms. Van Delft as a party is clear and unequivocal.

260Both Dr. Fox and Ms. Van Delft had actual knowledge of the order, as it was made pursuant to the consent of the parties and Ms. Van Delft.

261Dr. Fox and Ms. Van Delft intentionally listed the property for sale in contravention of the order.

262Dr. Fox’s evidence at trial was that he thought the original order had somehow been “rescinded” once he transferred the subject property into the joint names of him and Wendy Van Delft. There was no evidence that Dr. Fox checked this view of the order with his lawyer with whom he was clearly in regular contact.

263When he was asked if it would have been prudent for him to ask his lawyer before he sold the property, Dr. Fox testified that “he is a dentist not a lawyer.”

264I do not accept Dr. Fox’s testimony on this issue. It makes no sense that he would believe that the order prohibiting the sale of Merion Dr. was somehow “rescinded” by the transfer into the joint names of Dr. Fox and Ms. Van Delft. The purpose of the order was to preserve property – the fact that the property was now in the names of Dr. Fox and Ms. Van Delft did not lessen the need to preserve the property. I am satisfied beyond a reasonable doubt that Dr. Fox is in contempt of the order of Justice Bloom dated June 9, 2015.

265Because the net proceeds are still being held in trust by a law firm, there was no harm to Ms. Fox as a result of the sale. That might not have been so but for Ms. Fox fortuitously seeing the “For Sale” sign on the Merion St. property.

266The most common remedies for civil contempt are to order an amount to be paid to the opposing party as a penalty, or to levy a fine, or order costs, or in extreme cases, sentence the contemptor to a period of incarceration (see, for example, Family Law Rules, O. Reg. 114/99, r. 31(5)).

267In the circumstances of this case, I find the most appropriate remedy to deal with Dr. Fox’s contempt of the court order is to order that he pay the sum of $10,000. to Ms. Fox as a penalty.

268The issue of any costs specifically related to this conduct of Dr. Fox, that have not already been addressed by the court, can be outlined when the parties make their submissions on costs in this matter.

269I find the most appropriate remedy for the finding of contempt against Ms. Van Delft, is to stay that finding.

Summary of Decision

i. The respondent commencing January 1, 2017, the respondent shall pay to the applicant the sum of $16,734. per month for spousal support for an indefinite period.

ii. The respondent shall pay to the applicant a lump sum determined after the parties jointly prepare DivorceMate calculations based on the inputs in paragraph 213 above, and after deducting the amounts set out in paragraph 214 above. If the parties are able to resolve the issue of the lump sum owing, they shall forward to me to insert in this judgment. If the parties need to speak to me in order to complete the calculations above, they shall contact the trial co-coordinator to set a time to attend before me.

iii. The respondent shall pay to the applicant, the sum of $10,000. as a penalty for his contempt of the order of Justice Bloom dated June 9, 2015. The finding of contempt against Wendy Van Delft is stayed.

iv. The parties shall make submission with respect to costs as follows:

a. Within 30 days of the final judgement in this matter, the applicant shall submit her requests for costs. This submission shall be no longer than five pages not including any offers to settle or bills of costs.

b. Within 30 days after receipt of the applicant’s submissions, the respondent shall respond to the applicant’s submissions within the same parameters as to length.

c. There shall be no reply unless requested by me.

“Justice N. Mossip”

Justice Mossip

DATE: October 31, 2017

COURT FILE NO.: 579-06

DATE: 2017 10 31

ONTARIO

SUPERIOR COURT OF JUSTICE

Joan Ann Mary Fox

Applicant

– and –

James Henry Fox

Respondent

REASONS FOR JUDGMENT

Justice N. Mossip

Released: October 31, 2017

Footnotes

DivorceMate will indicate that the “low end of the range [is] extended to include 50/50 split of NDI (as defined by SSAG).”