COURT FILE NO.: FS-16-5611

DATE: 2018-04-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Erinn Lindsay Catherine Gravelle

T. Carten, for the Applicant

Applicant

• and -

Peter Joseph Welch

M. Cupello, for the Respondent

Respondent

HEARD: December 12-15, 2017, at Kenora, Ontario; January 12, 2018 at Thunder Bay, Ontario

Mr. Justice T.A. Platana

Decision On Application

[1] This application, commenced in September 2016, originally claimed a divorce, custody and child support, equalization of net family properties, exclusive possession of the matrimonial home and contents, and sale of the family property. Prior to the commencement of the hearing, counsel advised that the parties had settled the property issues, and the issues with respect to custody and access of the children. Counsel for Ms. Gravelle also indicated that she will continue to keep Mr. Welch covered on her benefit plan for two years.

[2] At the commencement, and on consent, the style of cause was amended to reflect the names of the parties as shown on the marriage certificate. The parties began living together in November 2011, married in January 2012, and separated on October 1, 2016.

[3] There are four children, Violet (age 9) and Jordyn (age 14), from previous relationships of the Applicant, and Huxley (age 5) and August (age 7), from the parties’ relationship. Violet and Jordyn are in the custody of the applicant mother. The issue of child support focused on Huxley and August. Custody is shared by the parties on a week on/off schedule except for specified times during holiday periods. The Respondent has reasonable access to Violet and Jordyn who are supported by their natural fathers.

[4] The parties also agreed to the claim for divorce. Evidence with respect to the divorce was presented at the commencement of the hearing.

Overview

[5] There is no dispute about the summary history of the parties. Both parties are 36 years of age. They met in the fall of 2011 when they were both enrolled in a Masters of Education program at Lakehead University. She had a B.A. and a B. Ed., while he had a B.Sc. and a B.Ed. They lived together from September 2011 to January 2012. They were married on January 11, 2012 and separated on October 1, 2016. Both had been previously married and divorced.

[6] At the time they met, the applicant had two children from two previous relationships, Violet and Jordyn. The marriage produced two children: Huxley, born August 10, 2014, and August, born August 15, 2012.

[7] Both parties are licensed teachers. When the applicant became pregnant with their first child, the parties decided that, for financial reasons, they would interrupt their Masters program, and look for teaching jobs somewhere in Northern Ontario. In January 2012, she was offered a temporary six month Long Term Occasional (“LTO”) contract with the Kenora Catholic District School Board (“KCDSB”). They jointly decided she should accept it and they moved to Kenora. Violet moved to Kenora with them, while Jordyn remained in Thunder Bay with her father. Mr. Welch remained at home, and looked after Violet.

[8] When the children were all enrolled full-time in school, he began supply teaching. He has been supply teaching since. Ms. Gravelle is currently employed as a teacher with the KCDSB.

[9] The focal issue between the parties is her claim that he is, and has been, underemployed by his choice, and that any award of support claimed by him should be reflective of that.

Applicant’s Evidence

[10] Ms. Gravelle testified that she was enthusiastic about the job offer in Kenora. Mr. Welch was also going to look for a teaching position. When they moved, he originally stayed home to look after Violet, until she started at the Montessori school. Mr. Welch then obtained an occasional teaching position.

[11] They did not work the first summer in Kenora and returned home to Thunder Bay to prepare their home for sale. On return to Kenora in the fall of 2012, she was on parental leave and Mr. Welch was taking supply teaching positions. Violet was in school part-time. Ms. Gravelle suffered from symptoms consistent with post-partum or sleep deprivation. At one point he took an LTO position teaching Ojibway as a second language. He struggled with that so he left after three months and continued supply teaching. She acknowledged in cross-examination that she knew he had experienced some academic difficulty in his undergraduate studies.

[12] Neither worked over the summer of 2013. She went back to work in September. He stayed home with Violet. In December 2013 she discovered she was pregnant and she took a second maternity leave. He was working as an occasional (supply) teacher. She experienced similar post-partum or sleep deprivation symptoms after Huxley was born in August 2014 which were similar to the symptoms she had after August was born.

[13] Beginning in September 2014, she was on parental leave.

[14] In the fall of 2014, he was supply teaching. An LTO roster application with the KCDSB was opened. As a result of the teachers contract negotiations, in order to become full-time, a supply teacher had to first be on the LTO roster. Ms. Gravelle stated that she encouraged him to apply in order to ultimately get a permanent teaching position. She stated that he did not want to do so, and he went back as a supply teacher.

[15] When her parental leave ended in August 2015, she returned to work, while he stayed home with August and Huxley. That carried on through the 2015 and 2016 school years.

[16] The KCDSB again sought applications for LTO positions for the school year in 2016. Her evidence is that she encouraged him to apply, they argued about it, and he was unwilling to do so. She stated that he wanted to continue supply teaching and to take a course and start a business which builds canoes. He travelled to Southern Ontario for the course, which cost approximately $2,500.00. She stated that he promised to return to teaching after completing the course.

[17] In September 2016, she resumed teaching. The parties were experiencing marital problems and were discussing a divorce. She stated that he threatened to make her past as having two previous children from different fathers an issue, as well as threatening to tell the school board she lacked certain qualifications. Further, she says he threatened to tell Jordyn and Violet’s father that she was not a capable mother. She stated that he went to Atikokan to find housing and look for a teaching position. She stated that he got a job offer in Kenora for three or four teaching positions which he turned down because he said he was going to take the children and move to Atikokan to teach and to start his business.

[18] The parties then separated. He did not move. For the first two weeks of September, Huxley and August went to school and daycare. She stated that he then took August out of school because of a dispute with the teacher, and that he took Huxley out of daycare. Mr. Welch was at home looking after the children.

[19] She was questioned in her examination-in-chief about allegations he had made about her behaviour. She acknowledged that she had experienced medical issues, but says that it was never specifically diagnosed as post-partum depression. She was offered treatment for post-partum symptoms, but decided to see if the problems she was experiencing were really caused by sleep deprivation. She accepted that the medical letter filed stated that she had post-partum depression. She acknowledged having been prescribed medication for that in the past, and at some times was treated for depression. She agreed that he assisted her with the children during these times. She denied counsel’s suggestion she had ever threatened to hurt any of the children. She stated that he never had to stay home for fear of her behaviour towards the children.

[20] She stated that she had never requested Mr. Welch to turn down any teaching appointments to stay home and care for the children. She acknowledged on some occasions he turned down teaching opportunities because of sickness, or because he wanted to stay home.

[21] In cross-examination she testified that she now has a permanent teaching position, but is second lowest on the seniority list. Her future employment is dependent on school enrolment.

[22] She is in the process of completing her Masters degree and is required to finish her thesis, and make a final payment of $3,080.00.

Applicant’s Financial Situation

[23] Exhibit 13 is her Financial Statement, sworn October 20, 2017. Employment income is shown as $6,411.76 monthly or $76,941.12 per year.

[24] The income tax information filed shows her 2013 income as $32,771.24; her 2014 income as $54,149.97; her 2015 income as $42,021.52; and her 2016 income as $73,136.67. Her September 30, 2017 year-to-date employment income was $55,562.76.

[25] Her Financial Statement show monthly expenses of $99,274.00. The expenses shown reflect the fact that Violet and Jordyn are with her full-time, and August and Huxley, week on/off.

[26] In addition to her employment income, she receives $256.00 per month in child support for Jordyn from Jordyn’s natural father, (which reflects a significant cost for him to exercise access), and $701.00 per month from Violet’s natural father, for a total of $957.00 per month.

[27] She has produced Exhibit 19, Children’s Budget, dated November 29, 2017, which quantifies costs for Violet and Jordyn as $2554.21 monthly. She has considered the expenses as attributable to “family” or “children”. With respect to the expenses, she has attributed 50% of the family expenses to the children when Jordyn and Violet are with her full-time, and 25% each for herself and 25% for the other children. She presents as Exhibit 20, expenses for only August and Huxley in the amount of $1,769.62 monthly, because they are with her half the time. She agreed in cross-examination that in preparing the budget for children’s expenses for Violet and Jordyn, the expenses for the family could be calculated at 20% for each of the people living in the house, and therefore, 40% could be attributed to August and Huxley, as contrasted with the 21.4% she has calculated.

[28] The home she now lives in is owned by her parents. She pays rent of $2,500.00 per month, an amount established by her parents. There is a downstairs suite which was previously rented out. Her parents now use the suite for 10-12 days per month when August and Huxley are with her. She shows debt to her father of $39,680.05, which was incurred at the time of separation. No payments are being made. She pays an OSAP student loan of $15,180.32 by regular payments of $161.68. She pays $451.00 per month for daycare for Huxley while Huxley is with her.

[29] When the parties separated at the end of September 2016, she left the home, and he remained in it until it was sold in December. She presents Exhibit 21 as expenses she paid from September to December of $3,512.50 which she claims were paid on Mr. Welch’s behalf. Additionally, she claims she had paid $8,457.86 for house expenses from October to December, child care expenses from November 2016 to February 2017 in the amount of $3,116.00, and also cell phone payments, and rent for November and December of $5,000.00.

The Respondent’s Evidence

[30] Mr. Welch’s evidence is that when they moved to Kenora for her position beginning in January 2012, Ms. Gravelle was teaching while he remained home to look after Violet. Jordyn was then with her natural father. He stated that Ms. Gravelle was experiencing emotional problems.

[31] From mid-March to June, he worked as a supply teacher. He stated that she went on parental leave when August was born in August 2012. Violet and Jordyn were at school. His evidence is that she was experiencing major stress and often yelled at the children (she denied any physical or verbal conduct towards the children). However, he did indicate that she was receiving assistance for postpartum indications. He stated that he stayed home at times when he could have worked out of concern for leaving her with the children.

[32] During the period of time that she was on parental leave, he was then teaching Ojibway as a second language as a supply teacher. He found that uncomfortable as he did not speak Ojibway, but the school principal kept asking him to extend his time. He continued, at Ms. Gravelle’s urging. He testified that he considered it unethical to be teaching something he had no knowledge of, or experience in.

[33] Mr. Welch says that when her parental leave was over in September 2013, they agreed that it was better financially for him to stay home and look after Violet and August, rather than incur the cost of daycare. His evidence is that during the school year 2013-14, she worked full-time, while he was what she called “a house husband.”

[34] They learned she was again pregnant in 2013, by which time their relationship had deteriorated. She was on parental leave, while he took the children to school and to their activities. He stated that her behaviour towards the children at times, and her insomnia, made him concerned about taking supply teacher shifts. From August 2014 to September 2015 he was fully available to the Catholic Board, but had few calls to fill supply teacher positions.

[35] His evidence is that for the school year beginning September 2015, they were in agreement that, considering daycare costs, August and Huxley would be home-schooled. He stayed home for the school year ending June 2016, while she taught full-time.

[36] He states that in spring of 2016, they agreed he would go to work as a supply teacher, but he changed his mind to spend time with the children during the transition time after the parties separated.

[37] He testified that by 2016, it was becoming clear to him that becoming a teacher was going to be difficult. He recognized that he had difficulties with his undergraduate program, and that he had problems planning lessons. He stated that she understood his difficulties in becoming a teacher. He then went on the canoe building course, while she went on a retreat. His evidence is that he did submit his selection sheet (Exhibit 28A) for availability as an occasional teacher on July 15, 2016, but that somehow that information was not received bythe Catholic Board.

[38] He applied to be registered on the LTO list for the Catholic Board in April 2016. He had an interview but was not accepted. He was debriefed after that interview, and reapplied in December 2017. He does not have a Pastoral Letter reference which is required, and at this point, says he is unable to get one.

[39] In September 2016, he was offered a .3 LTO position to the end of the semester in January 2017. He states that he accepted it at the time but the next day they met and discussed plans about separation and his plans to move to Atikokan with the two older children. He had visited the schools in Atikokan and had met with the principals. They indicated to him that a full-time position teaching senior math was becoming available the next year, and that he would have a good chance of obtaining it, if he first moved to Atikokan and began teaching on the supply list. He called the Board and said that he could not accept the LTO position. He went to Atikokan and found a house, and on his return, he was served with divorce papers and testified that at times the stress of that made it hard for him to work.

[40] His evidence is that he is currently registered with both Kenora School Boards. He is now available to take substitute calls Monday to Friday. He keeps his phone on to get calls, and also uses the internet if he misses a call from the Public Board. He has been volunteering to teach and to coach football, and has been tutoring after school. He is also registered with the Boreal Forest Board, a summer school program. That program is 40 hours per week, 8 hours per day, and pays $20.00 an hour. He hopes to work there again this summer. He has had discussions to assist a music teacher who hopes to establish a summer music camp.

[41] He has never been called for an Educational Assistant (“EA”) position by the Catholic Board, but says that while he would accept such a call for the day of the call, if it were for a day or days in the future, it may preclude him from accepting a call as a substitute, if one came.

[42] As of the date of this hearing, he is on the supply list for both boards, but neither LTO lists. He says that he has not applied for a position as an EA because if he accepts one, he will be unable to accept other teaching positions. His evidence is that he would take an LTO position immediately if one were to be offered.

[43] He has not considered looking for employment outside of Kenora because of the children, and the agreement between the parties. He is of the view that he has to be available five days a week for the children.

[44] He acknowledged that the Catholic Board recently advertised for positions as Education Assistant at a salary of approximately $35,000.00. He did not apply because it would prevent him from continuing his career plan to become a full-time teacher.

[45] He intends to apply for the next LTO position with the Public Board. He intends to continue with his venture of establishing a canoe building business, while pursuing a full-time teaching position. He acknowledges that although he has built one canoe, he has not sold any. He states that he considers canoe building to be a supplement to income he can earn as a teacher. He stated that he has never turned down a teaching opportunity because of his canoe building.

Respondent’s Financial Situation

[46] The respondent’s 2013 Notice of Assessment (Exhibit 52) shows income of $25,209.00. He had an LTO position that year. In 2015, he worked from January to June as an LTO teacher and as a substitute teacher. His 2015 tax assessment shows $22,031.00.

[47] His current financial situation is reflected in Exhibit 40, his Financial Statement dated October 31, 2017. He shows 2016 gross income of $2,936.70 and current monthly employment income of $1,964.40. He shows monthly expenses of $3,541.60 or $42,499.20 yearly. Since signing his Financial Statement, he says his phone has been reduced from $150.00 a month to $90.00 a month and transportation has increased by $90.00 (from $200.00) as he is now paying the insurance.

[48] He shows debts of $36,499.86 for a student loan, and outstanding rent of $2,400.00.

[49] Exhibit 43, is a statement of his year-to-date income from the Catholic School Board, which shows that as of November 25, 2017, he had earned $18,518.84. Exhibit 44 shows year-to-date earnings from the Keewatin Public Board as $4,483.01. His Financial Statement shows annual income of $23,572.00.

[50] Exhibit 41 is his Children’s Budget showing the percentage of expenses he attributes to each child. His total children’s expenses claimed are $2,641.44 monthly.

[51] Exhibit 50 shows that he is approximately number 230 on the Seniority List for substitute teachers. (The evidence does not indicate which Board the list applies to.)

School Boards’ Evidence

[52] Jocelyn Bullock is employed in Human Resources for the Kenora-Patricia District School Board. Her evidence is that Mr. Welch has been an occasional teacher since April 27, 2017. She testified that the process to become a full-time teacher is governed by Regulation 274/12 under the Education Act. A prospective teacher must first be on the occasional (supply) list and then work a specified number of shifts to be on the LTO list and then, then to be hired as a permanent teacher, he or she must have completed a four month LTO position. Obtaining a position as a permanent teacher is a matter of seniority. Obtaining a full-time position from the LTO list is similarly based on seniority.

[53] She further explained the procedure for calling in a supply teacher by phone call when one was needed. Occasional teachers are paid $239.00 per day for a 5 ½ hour day. She could not testify as to whether Mr. Welch specifically declined any calls to work.

[54] She also testified that Mr. Welch has not registered an application to be hired as an Occasional EA, a position which would pay for six hours per day at $20.00 per hour. The Board has currently posted for a Casual Education Assistant in Kenora. Mr. Welch is approved but has not created an account to receive calls for positions which may become available. She agreed in cross-examination that if he was on both lists, he could lose teaching opportunities if he took an EA position.

[55] She also testified that the Board hires lunch room supervisors at $20.00 per day.

[56] Tina Sinclair is the Manger of Human Resources with the Kenora Catholic District School Board. Mr. Welch has been an occasional teacher with the Board for six years. He first applied in August 2012. In 2015 - 2016 he did not teach. He has re-applied for 2016 - 2017, and has indicated his availability for full time occasional teaching Mondays through Thursdays.

[57] Ms. Sinclair provided Exhibit 29, (Substitute Detail) which details the occasions he was called in as an occasional teacher, and the disposition between October 26, 2016, and June 26, 2017. He was called approximately 220 times. He was not reached on 46 calls; he noted “unavailable” on 17 calls; 31 were cancelled by a substitute or an administrator; and 2 calls showed him as “sick”. All other calls were accepted.

[58] Exhibit 30 is Mr. Welch’s Substitute Detail List from August 28-December 11, 2017. It shows that of 53 calls, he accepted 34, declined 14, 12 of which indicated he had accepted a substitute position with another Board, and two which indicated he was sick. On three occasions, he was not reached by phone (two calls were made). Positions, after accepted, can be are cancelled by the administrators. The Exhibit shows that he was “unavailable” on two occasions.

[59] In the 2016-17 school year, occasional teachers were paid $225.00 for a full day, and $112.50 for a half day. She stated that last year he was also on the list as an EA, but does not know if he received any calls. He did not ask to be on that list this year.

[60] Ms. Sinclair testified that in November 2017, the Board advertised for EAs. This is a permanent position with a salary of approximately $35,000.00 per year plus benefits and pension. She stated that Mr. Welch has not applied. This position may earn more income than someone who is working as an occasional teacher. She agreed that the negative side of accepting a position, if offered, is that accepting it would eliminate the chance to obtain a Long Term Occasional position.

[61] Ms. Sinclair also testified that the Board is always advertising for lunchroom supervisors, which pays $23.00 per hour for two hours per day. Mr. Welch has not applied.

[62] In cross-examination she acknowledged that a person could be on the LTO and EA lists at the same time. There is no guarantee that working as an EA would earn more than the $16,000.00 per year earned by the average supply teacher, who accepts every call offered. At this time there are 10-12 teachers on the LTO list. Mr. Welch is not on the list. He applied in December 2017, however, if he is unable to obtain a Pastoral Letter reference he cannot be considered to be placed on the list to become a permanent teacher. To become a permanent teacher an applicant must be on the LTO list and must be on the top five in seniority to be selected for a permanent position.

[63] She stated that because of an exception within Regulation 274, if no qualified teachers are available, a teacher not on the LTO list could be hired. He was offered an LTO position in September 2016, but did not accept it.

Applicant’s Submissions

[64] Mr. Carten submits that the respondent is under-employed. He relies on s. 19(1)(a) of the Child Support Guidelines to argue that I should impute income to the respondent for the purpose of determining an appropriate amount for the respondent to pay in child support. He cites Drygala v. Pauli, 2002 CanLII 41868 (ONCA) for the proposition that there is no need to find a specific intent to evade child support obligations before income can be attributed. The court notes that once it is established that a spouse is intentionally under-employed, the spouse has the burden of demonstrating that under-employment is required by “virtue of his or her reasonable educational needs” (para. 40). Further, “a spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations” (para. 39). Mr. Carten acknowledges that when inputting income based on intentional under-employment, a court must consider what is reasonable in the circumstances.

[65] In considering the circumstance of this case, Mr. Carten notes that Mr. Welch has been employed as a supply teacher, and that from December 1, 2016 to November 30, 2017, he has worked a total of 75 full days and 84 half days for a total of 117 days for both Boards, or 62% of the 188 school days in that time period. If regular school breaks during Christmas, March break, July and August are taken into account, he submits that the respondent has worked on 47% of the 250 available school working days.

[66] He submits that the respondent has chosen to restrict his employment to supply teaching, which limits his income earning capacity. In support of that submission he notes the evidence of Tina Sinclair that there was an EA position advertised with the KCDSB which would provide an income of approximately $35,000.00 per year, plus benefits. Mr. Welch has not applied, and Ms. Sinclair’s evidence is that, if hired, it would not jeopardize his ability to apply for a position on the LTO roster.

[67] Mr. Carten submits that there is no evidence that the respondent or any of the children have any health needs which required him to work only as a supply teacher, or be under-employed.

[68] He submits that imputing income in the amount of $40-50,000.00 per year is reasonable considering the salary of an Education Assistant of $35,000.00 plus benefits for approximately nine months work.

[69] As the parties have agreed to a shared custody arrangement, Mr. Carten references s. 9 of the Child Support Guidelines. He cites the decision in Contino v. Leonelli-Contino, 205 SCC 63, [2005] S.C.R. 2017 where the court stated that the set-off amount based on the Guidelines is a starting-point only and that a court has broad discretion to analyze the resources and needs of both the parents and the children, and to adjust the amount, where appropriate.

[70] He then submits that with respect to the parties’ respective incomes, the applicant’s employment income at the time of the hearing was $76,941.12. He notes that the husband’s employment income based on his Financial Statement was $23,568.00, resulting in a set-off amount of $779.00 per month. If income is imputed, Mr. Carten suggests that the set-off amount would range from $694.00 (based on imputed income of $30,000.00/year) to $468.00 (based on imputed income of $45,000.00/year.

[71] He then submits that I must consider that Ms. Gravelle has two other children, Violet and Jordyn, in her care full-time. After receiving child support from their natural fathers, based on the Children Budget she submitted, she has a shortfall of $1,597.00 per month ($19,164.10 per year) which Mr. Carten submits should be deducted from Ms. Gravelle’s income. He then submits that the applicant incurs higher expenses as she pays daycare for Huxley of $451.00 per month while Mr. Welch’s daycare costs are subsidized. He submits that an additional reduction for that cost results in an adjusted income of $52,356.00 for determination of the set-off amount.

[72] Using these factors, Mr. Carten submits that any set-off amount should be based on the applicant’s income as $45,000.00 and on the respondent’s income as $23,568.00.

[73] He then notes that Mr. Welch’s Children’s Budget of $1,933.00 for August and Huxley attributes 67% of the expenses to them even though they live with him half of the time. He submits that a more appropriate amount would be half of that (33.5%), which results in an adjustment to his monthly expenses attributable to the children, or an expense of $1,257.00, which he states is close to the applicant’s Children’s Budget after deducting her child care costs for Huxley. He submits that without making such adjustment would be to attribute to the children a significantly higher standard of living while in the respondent’s care.

[74] With respect to spousal support, Mr. Carten references s. 15.2 of the Divorce Act. He notes these parties cohabitated for approximately five years. They are of the same age and educational background. He argues the parties both agreed to move to Kenora to seek teaching opportunities and neither gave up a career in order to advance the other’s. He argues that the respondent has had equal opportunity to pursue his career, but has chosen not to take advantage of career opportunities for advancement. He has chosen to remain a supply teacher after separation, and that his income post-separation is not different than what he earned during the marriage.

[75] He submits the respondent has not been disadvantaged by the marriage or its breakdown, and that his current employment status is a result of his own choices.

[76] He references Fisher v. Fisher, 2008 ONCA 11 as authority that length of cohabitation is a factor to be considered in determination of the condition, means and needs of each spouse. He submits the roles and functions of the parties were similar during the marriage.

[77] He further submits that a “second family” is a consideration in determining means and needs. He notes that the applicant had two children when this relationship began, and the respondent was well aware of her financial obligation to those children.

[78] Mr. Carten submits that the respondent is not entitled to support on a compensatory basis, or non-compensatory basis. He argues they currently enjoy about the same standard of living when their lifestyles, assets and debts are compared.

[79] He submits that if I decide to award spousal support to the respondent, the submissions as to income should be applied. He relies on the Spousal Support Advisory Guidelines, which he acknowledges are non-binding. He submits that the applicant’s income should be established as $52,356.00 per year and that results in no spousal support payable.

[80] Mr. Carten cites D.B.S. v. S.R.G., 2006 SCC 37 [2006] 2 S.C.R. 231 to submit that retroactive child support should be ordered based on the facts that since separation the applicant solely assumed payments for the mortgage, utilities and house insurance for the matrimonial home from September 2016 to December 2017 in the amount of $8,457.86. Additionally, she claims personal expenses of the respondent and family expenses that she paid between the date of separation and the hearing of $15,988.36, without any contribution from the respondent. Mr. Carten submits that this offsets any obligation she may have for retroactive child or spousal support.

Respondent’s Submissions

[81] Mr. Cupello acknowledges that the applicant’s income is $76,941.12. He submits that to impute income to Mr. Welch is unreasonable. He argues that support should be based on his actual 2017 income, which is reflective of his earning potential. He asks me to find that income to be $21,551.64 from both school boards to the end of November. He agrees, for the purpose of the Guidelines, that his Table amount should be $23,568.00.

[82] He cites Homsi v. Zaya, 2009 ONCA 322 as authority that the onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding. He submits that the onus has not been met. He argues that the evidence shows that Mr. Welch has taken all teaching positions that were offered to him, and that where any was turned down, it was reasonable for him to do so. He argues that the evidence is that Mr. Welch still intends to pursue his career as a teacher.

[83] He notes s. 9 of the Guidelines and references the evidence that the parties share joint custody and equal time with the children. He also cites Contino v. Leonelli-Contino, and submits that in shared parenting arrangements a careful review of all of the factors set out in s. 9 apply. These factors are: the applicable table amounts; increased costs of shared custody; and the condition, means and needs of each spouse and of any child for whom support is sought. He submits that none of the three factors prevails over the others. The weight given to each depends on the particular facts of each case. The overall objective, he points out, is to ensure a fair and reasonable amount of child support.

[84] He submits that the simple set-off approach may be a useful starting point, but has no presumptive value. He argues that the court has discretion to modify the set-off amount where that would result in a significant difference in the children’s standard of living between the two households. Mr. Cupello notes that Ms. Gravelle’s child care costs are $2,554.21. He notes that Mr. Welch’s proposed child care budget in the amount of $2,641.44 was not challenged in cross-examination.

[85] Mr. Cupello points out s. 9(c) and the factor of the different incomes of the parties.

[86] On the issue of spousal support, Mr. Cupello relies on the three bases for support set out in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420: compensatory, non-compensatory and contractual. He submits that the applicant is entitled to spousal support on both a compensatory and non-compensatory basis. As to compensatory support, he notes Mr. Welch’s contribution to the care of the children and household during the relationship. He argues that the respondent suffered an economic disadvantage. He submits that the applicant was able to move forward in her career because he remained at home and cared for not only their two children, but the applicant’s other two children. He was not able to pursue his own career.

[87] Additionally, he notes that the applicant was able to move forward in her career as she had obtained her position prior to 2012 and was not subject to the significant hiring restrictions imposed under Ontario Regulation 274/12 under the Education Act, which made it more difficult for him to obtain full-time employment as a teacher.

[88] Mr. Cupello relies on Thompson v. Thompson, 2013 ONSC 5500to argue that a compensatory claim can arise here on the basis that, even though the respondent was employed and reasonably self-supporting, at the time of separation, his opportunity for financial advancement has been impaired as a result of subordinating his career to hers. He notes that Ms. Gravelle is now a full-time teacher while he is still on the supply list.

[89] He further submits that Mr. Welch is entitled to non-compensatory support based on the objectives in s. 15.2 (6)(a),(c) of the Divorce Act in that it will relieve economic hardship he is suffering as a result of the breakdown of the marriage. He argues that Mr. Welch no longer resides with the primary breadwinner; that he is far away from his family, and that she has her parents staying with her at times to assist. He relies on Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 that non-compensatory support will serve to narrow the gap between the parties’ means and needs.

[90] Furthermore, he submits that spousal support will assist the respondent in getting back to self-sufficiency. He argues that Mr. Welch is attempting to do just that by taking all the supply teacher shifts he can.

[91] Mr. Cupello again cites Moge and Bracklow as authority that all four objectives of the Divorce Act must be balanced and no one objective predominates.

[92] Mr. Cupello submits that support should be based on the applicant’s income of $76,941.12 and the respondent’s income of $21,551.64 from both Boards, projected to $23,568.00 based on his Financial Statement.

[93] He submits the applicant’s evidence is that the respondent can still be covered under her benefit plan and she should be required to continue to be covered. Mr. Cupello submits that, even if I award spousal support, she should still cover him under her benefit plan until at least February 1, 2020.

[94] Finally, with respect to life insurance, Ms. Gravelle has life insurance and each of her four children are equally entitled as beneficiaries. Mr. Welch submits that he should be named as the Trustee of life insurance proceeds to August and Huxley.

Legal Principles

[95] A decision on the issues presented in this case must focus on the necessary determination of the income of the parties. The clear dispute is the determination of an appropriate income to the respondent, and specifically whether income should be attributed to him.

[96] In Lavie v. Lavie, 2018 ONCA 10, the Court of Appeal stated at para. 24:

…in order to find intentional underemployment and impute income to a parent there is no need to find a specific intent to evade child support obligations.”

[97] At para. 26, the Court stated: There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment.

[98] In Caine v. Ferguson, 2012 ONCJ 139, relying on DePace v. Michienzi, 2000 CanLII 22560 (ONSC), the court noted at para. 20that:

…persistence in unremunerative employment may entitle the court to impute income. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[99] In Drygala at para. 32, the Court of Appeal stated that “… a parent must earn what he or she is capable of earning.” The Court also found that the parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. There is an exception where the under-employment is required by reasonable educational needs.

[100] In Smith v. Smith, [2016] O.J. No. 847, Fitzpatrick, J stated at para 33-35:

33 Prior to imputing income to a party under Section 19(1), a court must undertake the three part analysis set out by the Court of Appeal in Drygala. Specifically, a court must ask itself the following questions:

a. Is the spouse intentionally under-employed or unemployed?

b. If so, is their intentional under-employment or unemployment required by virtue of the needs of a child of the marriage or any child under the age of majority?

c. If the answer to question b. is negative, what income is appropriately imputed in the circumstances?

34 In Smith (2012), at para. 81, Justice Chappel outlines the relevant factors in determining whether to impute income as follows:

1. The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;

2. It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party's past earning history and the amount of income that the party could reasonably earn if they worked to capacity;

3. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants;

4. The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments;

5. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the party's support obligations;

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,

7. The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

35 The determination of the Applicant's income comes down to whether she has made reasonable choices and is earning to the best of her ability in all of the circumstances. I would be inclined to permit the Applicant some transition time following the separation. She had been out of the workforce for several years prior to the breakdown of the marriage. At separation, she remained in the matrimonial home with the children, including Eve who was then one year old. The Applicant was responsible for the day to day management of the matrimonial home plus the farm buildings and property while the Respondent was primarily focussed on his business.

[101] Where s. 19 (1)(a) is engaged, the court retains discretion to decide whether, and if so, how much income to impute to the under-employed spouse. In doing so, a court must consider what is reasonable in the circumstances. Factors to be considered are age, education, experience, skills, and health of the parent.

Discussion

[102] Both these parties are qualified teachers. Early after graduation the parties agreed in January 2012 that they should move to Kenora so that the applicant could accept a short-term teaching position. At the time, it was agreed that the respondent would stay at home and look after the four children while she worked. While Violet was enrolled full-time in Montessori school, the respondent began supply teaching and continued to do so for the balance of the 2011/2012 school year, which ended in June 2012.

[103] The respondent applied to teach in the KCBSB in August 2012. The applicant had secured a part-time position with that board for the school year 2012/13, but when she became pregnant she took a one year parental leave of absence.

[104] The respondent continued to supply teach in September 2012. At the end of November 2012, he began teaching a temporary position with KCDSB as an Ojibway language teacher, even though he was not Ojibway speaking, and was not on the LTO list. I accept his reasoning that he quit that contract early as he did not feel he was qualified to be teaching that language. He returned to supply teaching for the balance of that school year.

[105] In September 2013, the parties agreed that the applicant would return to teach full-time, and the respondent would stay at home and look after August. The applicant’s other two children, Violet and Jordyn, were enrolled in school. That arrangement continued to the end of the 2013/14 school year.

[106] In August 2014, the applicant gave birth to Huxley. The parties decided that she would take a parental leave for the school year 2014/15. The respondent returned to supply teaching with the KCDSB. He accepted a temporary contract for a few weeks as an Ojibway language kindergarten teacher but decided to leave that position because of the philosophical rationale that the students should be taught by an indigenous person, and it was unfair to the students for him to be teaching that subject when he had no knowledge of and no experience in teaching that language.

[107] He returned to supply teaching for the balance of the school year.

[108] The respondent did not apply to an advertised position for teachers on the LTO teacher’s roster for KCDSB posted in 2014. Ms. Gravelle says she encouraged him to do so, but he did not do so. A similar position was advertised in spring of 2016. The respondent did not apply. His evidence is that he was not aware of that advertisement as he was in Atikokan on a canoe building course, and that she did not advise him of this advertisement, although she was teaching in the Board and would have become aware of it. Marital difficulties had led to discussion about divorce.

[109] Tina Sinclair’s evidence is that the respondent did apply to the KCDSB to be placed on the LTO, which requires an applicant to obtain a Pastoral Letter of Reference. The respondent testified that he is a “lapsed Catholic,” and could not obtain such a letter. Ms. Sinclair’s evidence further is that to become a permanent teacher, one must be selected from among the top five applicants on the LTO list. There are currently 10-12 teachers on that list. The evidence presented establishes to me that he is, at present, highly unlikely to obtain an LTO with KCDSB, as long as he cannot obtain a Pastoral Letter. I do not accept the argument that the respondent’s actions in not continuing to practice his faith, thereby preventing him from obtaining a Pastoral Letter, which prevents him from obtaining a position on the LTO list can be considered intentional underemployment.

[110] The respondent testified that he intends to apply for the next LTO posting with the Public Board.

[111] Exhibits 29 and 30 are the Substitute Details of the KCDSB from November 2016 through June 26, 2017, and from August 20, 2017 to December 11, 2017. While there are occasions which indicate “declined,” except for occasions when calls were noted as “Not Reached-No Answer,” the records show that with rare exceptions, opportunities for supply teaching were accepted when the call was answered. Mr. Welch has provided evidence in Exhibit 36 showing days which show as “declined” are because he had already accepted a position with the other Board.

[112] Mr. Carten has argued that there were opportunities advertised for positions as an EA or as a Lunchroom Supervisor. The EA position was advertised at a salary of $35,000.00 per year for approximately 9 ½ months of work during the school year. A lunchroom supervisor could earn $20.00 per day. I do not consider it reasonable to expect that a qualified teacher, working as a supply teacher with the view of ultimately becoming a full-time teacher, should apply for a position as an EA or a lunchroom supervisor. No evidence was presented as to what length of time would be reasonable for a supply teacher to obtain a position on the LTO list, and therefore I cannot consider it unreasonable for him to continue supply teaching.

[113] Imputing income is dependent on the circumstances in each case. The onus is on Ms. Gravelle. Mr. Welch’s educational background is in education. His only experience is in teaching. While he may be able to obtain employment at a higher income, it would quite probably mean that he would be forced to give up his teaching aspirations. Although there was no specific evidence tendered, based on Ms. Gravelle’s evidence, there are benefits attached to a teacher which may not be available to Mr. Welch if he were required to abandon his teaching career aspirations.

[114] I do not find Mr. Welch to be intentionally underemployed as it related to his position as a supply teacher.

[115] The applicant’s current income based is $76,941.12 annually.

[116] As of the dates of the hearing, I accept that his projected income as a supply teacher with both school boards was $23,568.97, an amount I use for application of the Table amounts to determine appropriate child support.

Child Support

[117] This is a case where the custody agreement reached by the parties results in each parent having the children an approximate equal amount of time, or “shared custody”. The Supreme Court of Canada addressed the issue of how child support calculations should be approached in shared custody situations in Contino v. Leonelli-Contino. In that case, the court set out principles to be used as to the manner in which child support calculations should be approached in shared parenting scenarios. As explained in Thompson at para. 39, the principles are as follows:

a) In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the Table amount of child support. Similarly, a finding that a shared parenting arrangement exists does not automatically dictate a deviation from the Table amount of child support. The court emphasized that in some cases, a careful review of all of the factors set out in section 9 may lead the court to conclude that the Table amount remains the appropriate figure.

b) None of the three factors listed in section 9 prevail over the others. In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs, resources and situation of each parent and child. The weight to be accorded to each of the three factors set out in section 9 will vary according to the particular facts of each case.

c) The purpose of section 9 is to ensure a fair and reasonable amount of child support. In adopting section 9 of the Guidelines, Parliament made a clear choice to emphasize the need for fairness, flexibility and the actual condition, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.

d) The calculation of child support pursuant to section 9 involves a two-step process. First, the court must determine whether the 40% threshold has been met; second, if the threshold has been met, the court must consider the factors outlined in section 9 to determine the appropriate quantum of support.

e) The simple set-off approach outlined in section 8 of the Guidelines may be a useful starting point for the section 9 analysis, as a means of bringing consistency and objectivity to the child support determination. This is particularly so in cases where the parties have provided limited information and the incomes of the parties are not widely different. However, the court emphasized that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that the set-off figure may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raises concerns about the fairness of a drastic reduction in child support to the recipient.

f) The court has the discretion to modify the simple set-off amount where "considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend". In crafting a child support award, the court should insofar as possible strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.

g) The court highlighted as one consideration in carrying out the section 9 analysis whether one parent is actually incurring a higher share of the child's costs than the other, such as costs relating to clothing and activities.

h) With respect to subsection 9(b), the court emphasized that this section does not refer only to the increased expenses which the payor parent has assumed as compared to the expenses that they would be incurring if they had the child less than 40% of the time. This subsection recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than in a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to the shared child care arrangement may be important.

i) The court recognized that not every dollar spent by a parent who has the child over the 40% threshold is a dollar saved by the recipient parent. It stated that in the absence of evidence to the contrary, it is possible to presume that the recipient parent's fixed costs have remained the same, and that their variable costs have only marginally decreased by the other parent's increase in time with the child. The court stated that where no evidence respecting the increased cost of shared custody is adduced, the court should recognize the status quo regarding the recipient parent.

j) Financial statements and /or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to section 9. The judge should not make assumptions regarding additional costs attributable to a shared parenting arrangement, but must apply the evidence relating to the additional costs.

k) The court's discretion under section 9 is sufficiently broad to bring a parent's claim for section 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in section 9.

[118] The guiding objective must be to set child support in an amount that ensures that the children do not suffer markedly different experiences flowing from financial disparities between each parent. This objective must be pursued with consideration to all of the factors at play in the circumstances of each case and, of course, be subject to the reality that the available finances now support two households instead of one. The caselaw is clear that the Guidelines offer a framework that the Court has the discretion to adjust towards allowing the children to continue to benefit from the resources of both parents regardless of which home they are in.

Section 9 Discussion

[119] In Contino, the Court stated that the factors to be considered in the exercise of discretion under s. 9 are the table amounts, increased costs of shared custody, and the condition, means and circumstances of each spouse and the child(ren) for when support is sought.

[120] The applicant’s actual Table income is $76,941.12. Mr. Carten has submitted the applicant’s income for support calculation purposes, should be calculated taking into account extra expense for the support of Jordyn and Violet. She has submitted a Children’s Budget (Exhibit 19) of $2,554.21 for those children. She receives $957.00 from those children’s two biological fathers, leaving a shortfall of $1,597.00 per month, or $19,164.00, which Mr. Carten submits should be deducted from her income, leaving it at $57,768.00. He has submitted that she pays child care for Huxley of $451.00 per month, an expense Mr. Welch is subsidized for. He submits that if that amount is also deducted from her income, she is left with an income of $52,356.00, an amount Mr. Carten submits should be established as her income for table calculations.

[121] I do not accept Mr. Carten’s methodology of reducing the applicant’s income because of a shortfall in child expenses for Jordyn and Violet. To reduce her income because of that shortfall would effectively mean that Mr. Welch would be contributing to their support as any amount he would receive as child support for August and Huxley, and any spousal support, would be less than what he might otherwise be entitled to as the table amount.

[122] For the purposes of calculating appropriate support under the Guidelines, I find the applicant’s income to be $76,941.12.

[123] Mr. Welch’s year-to-date income from both boards is $23,568.97.

[124] Based on the respective incomes, the Table amount for Ms. Gravelle is $1,168.00 and for Mr. Welch $357.00, resulting in a set-off of $811.00. Spousal support of the Guidelines ranges from $344.00 - $912.00.

[125] Having determined the table amounts, I must then consider the other factors referenced in Contino, namely any increased costs of shared custody, and the condition, means and circumstances of the children.

[126] In reviewing the Financial Statement of each party, she claims rental expenses of $2,500.00; she shows household expenses of $755.00; she claims transportation expenses of $320.00; she claims personal expenses for the family at $800.00. She has an expense for pension contribution of $746.60 per month, plus an LTO position of $189.50, and OECTA (Teachers’ Association) expenses of approximately $175.00. She shows assets of $62,619.34 (including a pension value of $39,001.86) and RESP’s of approximately $22,000.00. She shows debts for a student loan of $15,180.32 on which she pays $161.88 per month, and a lone of credit of $10,000.00 on which she pays $400.00.

[127] The respondent’s Financial Statement shows rental expense of $1200.00; household expenses of $750.00; transportation costs of $320.00, and personal expenses at $276.00. He shows pension contribution expenses at $176.03. He shows assets of $24,035.26, including RESP’s of $22,000.00. He shows debts of $36,499.86 for a student loan, on which he is making no payment; a Visa bill of $144.00, and outstanding rent of $2,400.00.

[128] In looking at the children’s budget for the two children, he claims to spend 53% of his family budget on their expenses, while she claims to spend 21.4%. In reviewing the children’s budget, he attributes 67% of rental costs of $1,200.00 ($804.00) where she attributes 25% of $2,500.00 ($625.00); both show clothing costs of $100.00; both claim $100.00 for children’s activities; he attributes 67% of transportation expenses of $420.00 ($281.40) to the children, while she shows 25% of $320.00 ($80.00); he attributes 67% of family clothing expenses of $150.00 to the children ($100.05) while she shows family clothing costs of $200.00 and attributes 50% ($100.00) to the children. She shows family grocery expenses of $600.00 and attributes 25% ($150.00) while he shows a similar $600.00 and attributes $240.00. I find both parties’ claims for the children’s expenses to be excessive, considering the parties’ incomes and the amount of total income available.

[129] Without examining all of the other expenses in detail, I note that each parent shows expenses for children’s activities, entertainment and haircuts, school fees and supplies, which are duplicate expenses.

[130] An examination of the respective financial positions of the parties and their household costs suggests to me that the children appear to have a relatively similar standard of living in each household. The children’s budget submitted by the respondent shows expenses of $2,641.44 monthly for August and Huxley while the applicant claims expenses for those two children of $1,769.62.

[131] From the evidence before me, both claim clothing costs for the children, similar amounts for groceries, activities and transportation. Although her rent is over twice his, there is no evidence before me as to the actual living situation of the children in order to determine any marked difficulties in the children’s standard of living in each of the households. The guiding objective must be to set child support in an amount that ensures the children do not suffer markedly different experiences flowing from financial disparities between parents.

[132] In Smith, at para. 124, Fitzpatrick J. noted:

[124] While I appreciate that child support is to be given priority over spousal support, determining whether to adjust the Guidelines support in the case of a mixed custody matrix requires consideration of spousal support and whether there will be an unacceptable disparity of finances between the homes of each parent.

[133] Part of the analysis under s.9 is to consider other circumstances. Ms. Gravelle has her two other children living with her full-time which must be taken into account in determining the number of persons in each household when comparing the standards of living. In reviewing the Children’s Budget for Jordyn and Violet, the applicant attributes 30.9% of the family expenses to them, including $300.00 for debt payments (75% of the family expense), $300.00 for groceries, and $160.00 for transportation. In calculating the expenses attributable to these two children, Ms. Gravelle has attributed 40% of some family expenses to them, 50% to some, 75% to some, and 100% for summer camp. I accept Mr. Cupello’s argument, accepted by her as reasonable in cross-examination, that those expenses could also be reduced considering there are five people sharing those expenses.

[134] For that reason, I have reduced the amount of $2,554.24 she claims as Children’s Expenses for Jordyn and Violet, by reducing the 50% claimed for those expenses to 20%. While I looked at the $300.00 claimed as “debt payments” there is no evidence before me as to how Violet, age 10, and Jordyn, age 14, could have incurred debt of $400.00 per month. I find that 20% of that family debt of $400.00 should be attributed to them. (I note that looking at the Budget for August and Huxley, all the debt payments have been attributed to the children).

[135] After making those adjustments, I find that a reasonable budget amount for Jordyn and Violet is $1,027.60. Considering the above, I find that any shortfall in child expenses for Jordyn and Violet to be attributed to her is $1,027.60 - $970.00 which equals $57.60 per month, or $781.20 per year.

[136] She has a current daycare expense of $451.00 per month for Huxley, which is not incurred by the respondent. I have not allowed the full amount claimed, recognizing that daycare costs are on a daily basis. I have considered that Ms. Gravelle will not require daycare expenses for the days she does not work during the school holidays. Further, the evidence is that her parents frequently live with her the two weeks she has the children.

[137] Section 9 requires a consideration of all these factors in determining an award of child support. I must look at the overall financial situation of the parties, and in particular, determine what is a reasonable amount for Ms. Gravelle to be able to pay, while attempting to maintain a similar standard of living for the children in the two households. In doing so, I find that child support should be ordered in the amount of $750.00 per month.

Spousal Support

[138] Section 15.2 of the Divorce Act sets out the authority for a court to make an order for spousal support. Section 15.2(4) sets out:

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

(a) the length of time the spouses cohabited;

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

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

[139] Similar factors under the Family Law Act direct a court to consider current means and needs of the parties; age and physical and mental health; and the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation.

[140] In this case, the cohabitation was of short duration, the respondent remained at the home to care for the children by agreement, while the applicant was teaching. There is no evidence other than the applicant’s full-time teaching position, to suggest that either party assumed a greater responsibility for household operations.

[141] One of the objectives of s. 15.2(6)(d) of the Divorce Act is the economic self-sufficiency of a spouse who claims to be entitled to support. Self-sufficiency relates to the ability to support a reasonable standard of living considering the parties present and potential incomes, their standard of living during the marriage, and other relevant factors.

[142] I find that Mr. Welch has to a degree compromised his own career aspirations in order to care for the children and has suffered an economic disadvantage and made a career.

[143] I have considered that following the move to Kenora for Ms. Gravelle to accept a teaching position, it was a joint decision for Mr. Welch to remain at home with the children. When the children were of school age, he began supply teaching in 2016. While Mr. Carten argues that he has worked 62% of the school days between December 1, 2016 to November 30, 2017, I find of greater importance is the evidence of Exhibits 29 and 30 which detail the times called, and how many of the opportunities to work were accepted, and if not, why not. Those exhibits, together with Mr. Welch’s explanation that some refusals for one Board were because positions had been accepted at another Board, demonstrate to me that he accepted a significantly high percentage of supply teaching opportunities offered. As I noted, of approximately 220 calls, he noted “unavailable” on 17 calls. His evidence explained the reasons for his unavailability, which I find to be reasonable in the circumstances.

[144] In view of the fact that the parties originally must have accepted that after the passage of Regulation 274 in 2012, for Mr. Welch to become a full-time teacher would require him to move through the process from supply teacher, to LTO, to permanent teacher. No evidence was presented before me to permit me to determine whether there is any reasonable length of time, on average or otherwise, for a prospective full-time teacher to spend on the supply list. Mr. Welch has been on the list since 2016, and I do not find it unreasonable that he should continue to pursue supply teaching opportunities in order to pursue his career aspiration of becoming full-time. I have further considered that he has obtained summer teaching opportunities at Boreal Forest School.

[145] I find that it is not reasonable to expect that he should pursue a position as an EA, which requires a contractual situation, and which may be a significant impediment to accepting an LTO position, if one became available to him. Further, the evidence suggests that a supply teacher, if called frequently, could achieve the same income as an EA.

[146] For similar reasons, I reject the suggestion that he should apply for a position as a lunchroom supervisor. I add that for both or either position, while the evidence was that they may be available, the evidence does not say that he could obtain either.

[147] The dilemma faced by Mr. Welch is one that may be common to aspiring teachers who are constrained by the operation of Regulation 274. How long is it reasonable to remain on a supply list, before obtaining an LTO position, and subsequently full-time? For Mr. Welch, his goal has not changed. Both parties were aware, when they came together and married, of his career aspirations. He is 36, and I accept his evidence that he is attempting to establish a canoe-building project to supplement his teaching income, which presumably could be continued if and when a more permanent teaching position becomes available.

[148] I have also considered the circumstances that there are young children who are with him half of this time. Ms. Gravelle has the assistance of family on a regular basis. The evidence is that her parents spend time with her when she has August and Huxley with her. He does not have the same support available from family.

[149] I am satisfied that the respondent has established a basis for spousal support on both a compensatory and a non-compensatory basis. The evidence is clear that it was a mutual decision between the parties that they should both leave their ongoing education so that the applicant could accept employment in Kenora that required him to stay at home with the children and put his own employment prospects on temporary hold. He was then dependent on her as the only income earner. When he then began supply teaching, she remained the primary income earner. I accept the evidence that the parties agreed for a period of time after the two children, August and Huxley, were born, that he would assume the role of a “house husband”.

[150] The evidence suggests that, by agreement, he was financially disadvantaged during that time as he was not able to work. When he began supply teaching, he continued to rely on her as the primary earner, and has lost that financial situation as a result of the separation. The respondent has been able to work full-time, and based on Exhibits 51 and 53, has been able to progress on the salary grid.

[151] In coming to this reasoning, I recognize that these circumstances were created by a joint decision that was dictated by financial requirements of the parties. Nonetheless, the resulting consequences now place him in a position of being entitled to support. His Financial Statement demonstrates a clear need.

[152] One of the objectives of the Divorce Act is to encourage self-sufficiency. I am satisfied that currently, Mr. Welch is working toward that objective. The significance for me in this case was the fact that Regulation 274, as noted, requires anyone who hopes to become a full-time teacher to proceed through the process as a supply teacher. The question in my mind is, how long should someone be entitled to remain on the supply list before having to decide that obtaining a long-term position is not reasonable, particularly in circumstances where there is a child support obligation? I have no evidence as to whether there is any reasonable length of time before it should be anticipated that someone should determine the wait is too long and career and employment adjustments should be made. In this case, the respondent has been on supply lists since 2012. I am not prepared to say that he should, at this point, look for other full-time employment which may jeopardize his opportunity to obtain an LTO position.

[153] Any award of spousal support payable must take into consideration child support obligations. Based on the applicant’s income of $76,941.00, the respondent’s income of $23,568.00 and child support of $811.00, the SSAGs suggest a range from $344.00 to $912.00. Although the respondent has demonstrated an entitlement, I am satisfied that with child support being a priority, there is no ability on the part of the applicant to pay spousal support in the suggested range. I fix spousal support in the amount of $250.00 per month.

[154] Notwithstanding, that does not mean that he should be entitled to decide to carry on as a supply teacher indefinitely, relying on spousal support. For that reason, and to provide an incentive for him to achieve the objective of self-sufficiency, and to provide future evidence of same, spousal support should be subject to review. His evidence is that he is going to apply for future LTO positions, and for other teaching opportunities with Boreal Forest, and in music. Additionally, he has given evidence of establishing a canoe manufacturing business.

[155] The respondent has claimed retroactive support. In Drygala, the Court stated that a party seeking retroactive support must provide evidence that the child(ren) suffered from a lack of financial support during the period question. In D.B.S. v. S.R.G., at para. 109, the Court stated:

A court should thus consider whether conduct by the payor spouse has had the effect of fulfilling his/her support obligations… where it appears to a court that the payor has contributed to his/her child’s support in a way that satisfied his/her obligations, no retroactive support should be ordered.

[156] Courts have consistently stated that the purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A trial judge has the discretion to award retroactive child support that is fit and just in the circumstances. As part of the exercise of discretion, the trial judge must consider the fairness of such an award including whether it will create an unreasonable debt obligation on the part of the payor. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion.

[157] In this case, the applicant testified that in the period following separation to the time of trial, she solely assumed, without contribution from the husband, several expenses for the benefit of the family and for the respondent. Post-separation, the applicant solely paid for the mortgage, utilities and house insurance with respect to the jointly owned matrimonial home for the months of September, October and November in the amount of $8,457.86.

[158] Between November 2016 and December 2017, the applicant paid daycare expenses for Huxley of $3,116.00 for November 2016 to February 2017 and $902.00 for November and December 2017 for a total of $4,018.00. In addition, between October 2016 and November 2017, the applicant paid for several personal expenses of the respondent including cell phone bills, Visa bills, Mastercard bills, and car insurance and life insurance premiums of $3,512.50. The total of the personal expenses of the husband and of the family expenses that the wife paid for between the date of separation and the date of trial was $15,988.36. The expenses were paid for without any contribution from the husband. This more than offsets her obligation for retroactive child or spousal support.

[159] Judgment to go as follows:

1. Erinn Lindsay Catherine Gravelle and Peter Joseph Welch who were married at Thunder Bay, Ontario on January 6, 2012 be divorced and that the divorce take effect 31 days after the date of this order.

2. The applicant’s income is $76,941.12. The respondent’s annual income is $23,568.97.

3. The residence and day-to-day care and control of the children, Huxley and August, is shared equally between the applicant and respondent. The applicant has two other children from previous relationships that reside with her full time.

4. Pursuant to the Child Support Guidelines, the table amount payable to the applicant is $1,168.00 per month and the Table amount by the respondent is $357.00 per month. The set-off amount of child support payable pursuant to the Child Support Guidelines based on the aforesaid incomes of the applicant and the respondent is $811.00 per month. The set-off amount shall be reduced by $61.00 taking into account the higher expenses of the applicant because of her obligations with respect to her other two children from previous relationships and her higher daycare expenses for Huxley. The amount of child support payable by the applicant to the respondent shall be reduced to reflect the reduced set off amount.

5. Commencing as of January 1, 2018, the applicant shall pay to the respondent child support for Huxley and August in the amount of $750.00 per month. Child support shall be reviewable by the Court after two years at the request of either party.

6. Commencing as of January 1, 2018, the applicant shall pay to the respondent spousal support in the amount of $250.00 per month.

7. Child and spousal support shall be reviewable by the Court after two years from this order, at the request of either party.

8. The applicant and respondent shall share Section 7 extraordinary expenses of Huxley and August, proportionate to income, expenses incurred by either parents for Huxley when the parent having care of Huxley is working. For purposes of this paragraph, the applicant’s annual income is $76,941.00 and the respondent’s annual income is imputed to be $23,568.00 in 2017. Section 7 extraordinary expenses shall be reviewable by the Court after two years at the request of either parent.

9. The applicant and respondent shall exchange their Income Tax Returns and Notices of Assessment for the most recent taxation year by June 1 each year commencing June 1, 2018.

10. For as long as Huxley and August are dependents and the respondent is employed as an occasional/substitute teacher, commencing in 2018, the respondent shall provide to the applicant by July 31 each year, a Summary Substitute Detail Report or Occasional Posting Report from the school boards he is employed by for the school year most recently completed detailing the shifts offered to him, the shifts he has accepted and the shifts he has not accepted during the most recent school year.

11. The applicant shall maintain medical, dental, health and vision coverage through her plan at her place of employment for Huxley and August for as long as they are dependents and the benefit is available to her through her place of employment and for the respondent for two years if her plan with her employer permits her to do so.

12. The applicant shall designate and maintain the children, Huxley, August, Jordyn and Violet, as equal beneficiaries of her term life insurance policy through her place of employment for so long as they are dependents.

13. All other claims in the Application and Answer shall be dismissed.

14. The applicant and respondent shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 25.1 of the Child Support Guidelines.

15. A Support Deduction Order shall issue.

16. Unless the Support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person towhom they are owed.

Costs

[160] If the parties cannot agree on costs then I will accept brief written submissions respecting the costs of this trial. Ms. Gravelle shall file her written submissions not exceeding five double spaced pages, exclusive of Bills of costs and any relevant Offer(s) to Settle within 25 days of this decision. Mr. Welch shall file his written submissions not exceeding five double- spaced pages, exclusive of Bills of Costs and any relevant Offer(s) to Settle within 45 days of this decision. Ms. Gravelle shall file any Reply not to exceed two pages double- spaced within 60 days of this decision.

_______ “original signed by”________

The Hon. Mr. Justice T. A. Platana

Released: April 4, 2018