COURT FILE NO.: FS-16-413743 DATE: 20181009

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Colleen Debra Ballanger Applicant – and – Michael John Ballanger Respondent – and – KELLY HEARNDEN Respondent

Colleen Debra Ballanger, acting in person Gary S. Joseph and Aaron M. Mastervick, for the Respondent Michael Ballanger Joseph Neal for the Respondent Kelly Hearnden

HEARD at Toronto: May 8, 9, 10, 11, 14, 15, 16 & 17, 2018

Reasons for Judgment

KRUZICK J.

I. Nature of the proceeding

[1] This is a divorce proceeding commenced by the applicant, Colleen Debra Ballanger (wife) against the respondent Michael John Ballanger (husband) and Kelly Hearnden (other respondent).

II. Issues to be decided

[2] In summary, the issues to be decided are:

(1) the divorce; (2) entitlement to and duration of spousal support of the wife; (3) arrears of spousal support as claimed by the wife; (4) arrears of child support and s. 7 expenses payable to the wife; (5) the husband’s claim for a credit of overpayment of child and spousal support; and (6) the wife’s claim for post-separation accounting including a claim against the added respondent.

III. Background

[3] The husband and wife started living together in or about April 1979. The parties were married on June 8, 1985. The agreed date of separation is April 1, 2004.

[4] The wife was born on August 6, 1956, and is 62 years of age. The husband was born on February 16, 1953 and is 65 years old.

[5] The parties have three children. Bradley Matthew Ballanger (“Bradley”) was born on October 26, 1985 (32 years old). Jessica Lynne Ballanger (“Jessica”) was born on July 19, 1989 (29 years old) and Kristen Brianne Ballanger (“Kristen”) was born on April 17, 1993 (25 years old). Collectively, they are referred to as the “children”.

[6] The parties difficulties in their relationship began in or about 2002.

[7] In or about October 2002, the husband moved out of the bedroom and began residing in the basement of the matrimonial home. The parties agree they separated physically in April 2004 when the husband left the home. The children continued to reside with the wife at the matrimonial home. At the time of separation, the wife was 48 years old and the husband was 51 years old.

[8] This was a marriage where the wife remained at home to look after the children and manage the household. The wife was not employed outside the home since 1985, except for a brief period of time, in 2005/2006.

[9] The husband is a financial advisor, former stock broker with wealth management expertise in the resources, mining and explorations sector. His income is comprised of commissions and consulting income. During the parties’ marriage and since separation, the husband’s income has fluctuated from year to year.

[10] The husband was employed as a representative of Richardson GMP until 2014 when that employment was terminated.

[11] At the date of this trial, the husband is in litigation with his former employer as a result of the termination. The trial was set to commence in September 2018.

[12] Upon leaving Richardson GMP, on September 30, 2014, the husband founded Bonaventure Explorations Ltd. (“Bonaventure”). The company was incorporated with Kelly Hearnden, the other respondent in these proceedings. Bonaventure is a resource and consulting company within the husband’s area of expertise. Bonaventure was structured so that it is jointly owned (50/50) by the husband and Ms. Hearnden. Ms. Hearnden is designated the President of Bonaventure. She is the common law partner of the husband. Ms. Hearnden was born on June 2, 1960. She is currently 58 years of age.

[13] Ms. Hearnden was added as a respondent to these proceedings in 2016 as a result of the wife’s claim that the husband transferred funds to Ms. Hearnden and structured Bonaventure to divert funds to Ms. Hearnden and to reduce his own income.

[14] During the marriage, the husband and wife owned a cottage property in Port Carling, Ontario which was registered in the name of the wife. In 2002, the cottage was sold for $1,300,000. The property was subject to a mortgage. The net proceeds of sale were approximately $600,000 after repayment of the mortgage, closing fees and disbursements. From these proceeds $350,000 was deposited in an account of the wife held with her brother. The remaining $250,000 was deposited in a joint account owned by the husband and wife.

[15] In 2005, the wife commenced these proceedings. Since 2005, numerous procedural and substantive orders have been made by this court in these proceedings.

[16] The matrimonial home which was located at 127 Treegrove Circle, Aurora, Ontario and was registered in the name of the wife. It was sold in October 2006 for approximately $655,000. The net proceeds, after payment of the mortgages, tax arrears and fees and disbursements, netted $256,624.65. The sum of $124,450.32 was paid on a joint line of credit. The wife received the balance of $134,383 from the sale proceeds.

[17] On November 5, 2006, the parties consented to a financial arrangement which provided for monthly child support of $1,500 and spousal support of $2,500 paid by the husband to the wife.

[18] In these proceedings, on February 20, 2008, R. Gordon J. made a temporary order for the support of one child, Kristen, in the monthly amount of $2,734 and for spousal support of $8,500. The temporary support order was based on the husband’s income “set at $350,000 per annum”. The husband was ordered to pay to the wife $101,276 as retroactive support. That temporary order directed the husband to provide to the wife “a summary of income earned by him from all sources along with documentary confirmation” every six months.

[19] On August 23, 2017, by way a motion, the husband sought to change the 2008 temporary order. The husband relied on a change in his income to $130,000. In the motion, he also sought an imputation of income to the wife of $43,000. The issue of variation of support was directed to this trial.

[20] A Trial Management Conference was held in November 2017 before Stevenson J. The Trial Scheduling Endorsement provides that equalization is not an issue for trial. On April 16, 2018, the parties agreed that neither party owes the other party an equalization payment. On April 18, 2018, Backhouse J. made an Order confirming that no equalization is owing to either party.

[21] During the course of this litigation, both parties were represented by various counsel. The wife has not had legal counsel since at least 2017 and was not represented by counsel at the trial. She has had some legal assistance with a temporary retainer to assist her in preparing for the trial.

IV. Positions of the parties

(a) Agreed upon Positions of the husband and wife

[22] Neither party is opposed to the granting of the divorce. Both parties agree that for the divorce, the date of separation is April 1, 2004.

[23] As set out above, equalization is no longer an issue.

(b) Position of the Wife

(i) Spousal Support

[24] The wife seeks ongoing spousal support. She takes the position that she has need and, states that despite efforts, she has not been able to secure full-time employment since 2005. She has no other source of income other than spousal support.

[25] The wife argues economic hardship by virtue of her age and the fact that she has no savings and has no assets from the marriage. The wife relies on the fact that she declared bankruptcy in 2013 as a result of her financial circumstances.

[26] The wife argues that this was a traditional marriage and relationship of some 25 years where she was dependent on the husband. She argues that due to the roles of the parties during the marriage that her self-sufficiency is not possible and that spousal support should be ongoing.

[27] The wife continues to provide emotional and financial support to the oldest and youngest two children and argues that both of them are financially dependent on her.

[28] The wife also argues that the husband has means and the ability to continue to pay spousal support. The wife submits that the husband’s income is in excess of his reported 2017 annual income of $136,000. She relies upon the gross income of the husband’s company and submits his income is in excess of $400,000 a year.

[29] The wife argues that the husband, by his reckless conduct in the industry, either orchestrated his termination with Richardson GMP or refused to take measures to prevent his termination. The wife further argues that immediately after termination, the husband incorporated Bonaventure in September 2014 with his common law partner, the other respondent. The wife argues this was done by the husband to minimize his income and split his income with his common-law partner to avoid his child and spousal support obligations.

[30] The wife takes the position that the husband has misrepresented his true income and earnings and misled the court. Relying on her knowledge of the husband’s holdings and operation during their marriage, the wife argues that the husband has offshore investments which remain undisclosed.

[31] The wife argues the husband has diverted his assets to the other respondent and to offshore banks or investments and has not disclosed his true asset picture.

[32] To support the wife’s comparative lifestyle argument, she takes the position that she lives modestly while the husband enjoys a luxurious lifestyle with the other respondent. She relies on the fact that he resides in a large home, travels, owns a boat and spends extensively. The wife resides in a three bedroom apartment which she shares with two of the parties’ children.

[33] The wife seeks retroactive spousal support from the date of separation.

(ii) Child Support

[34] The wife’s position is that the husband failed to pay adequate child support following the separation and only paid child support when ordered to do so in 2006. She argues that the calculation of child support in 2008 was based on an income of $350,000 when the husband’s income was, in fact, significantly higher. She argues that she is entitled to retroactive child support from 2004.

[35] The wife further argues that the husband stopped paying child support for the youngest child in 2011 even though that child continued to be dependent.

[36] Based on her allegations of the husband’s historic income, the wife calculates retroactive child support owing to her in the amount of $285,496.

(iii) Additional claims

[37] The wife claims that pursuant to their temporary agreement in 2007, the husband owes her a payment of $50,000 which he has not paid.

[38] The wife argues that the costs awarded to her pursuant to the temporary order of April 21, 2008 were also not paid.

[39] The wife also seeks an order that support should be secured by life insurance on the husband’s life. She also seeks ongoing health and medical insurance coverage to be paid by the husband. She further argues that in the event of default by the husband on any part of the judgment, the other respondent should be required to satisfy his support obligation.

[40] By way of a property claim the wife also asks for a the post-separation accounting claiming that she should be compensated for the fact that she has no assets as a result of the breakdown of the marriage.

(c) Position of Husband

(i) Spousal Support

[41] The husband seeks a termination of spousal support or a significant change, or modification, of his existing spousal support obligation payable pursuant to the temporary order. The husband argues that if his support obligation to the wife is not terminated, it should be reduced to reflect his current taxable annual income of $136,000.

[42] The husband argues that the wife has not made efforts to become self-sufficient and that an income of at least $30,000 a year should be imputed to her.

[43] It is the position of the husband that since March 1, 2008, he has consistently paid the wife $102,000 each year for spousal support. The amount ordered in 2008 was based on imputed income to the husband of $350,000 and no income for the wife. It is the position of the husband that while in 2008, subsequent to the temporary order; he reported an income of $403,400 to Canada Revenue Agency (CRA), his income in the following years fluctuated. He submits following 2008 that his average annual income has been lower than the income of $350,000 imputed to him in 2008.

[44] The husband submits that his 2017 annual income is $136,000. It is argued by the husband that for the purposes of spousal support his income should be based on his line 150 of the CRA Income Tax Return.

[45] The husband takes the position that since the 2008 temporary order was made he has suffered a material change in circumstances. The husband argues that when his employment was terminated in 2014, he was forced to incorporate Bonaventure.

[46] The husband submits that he incorporated Bonaventure with the other respondent in order to survive financially. He maintains that the other respondent is legitimately an equal (50-50) partner in this new venture.

[47] It is the husband’s position that all the income earned by Bonaventure was paid to him solely with the exception of dividends which were paid to the other respondent in lieu of income. The husband argues that he received greater remuneration from the company than the other respondent because he has done more of the work.

[48] Relying on his historic Income Tax Returns, and specifically his line 150 income, the husband argues that since 2008 he has overpaid spousal support. He calculates overpayment to the wife of approximately $206,376. The husband takes the position that the quantum of support should be varied retrospectively or that any over payment of spousal support should be credited against any future on-going support.

[49] The husband argues that while the wife in her budget sets out an expense of $2,000 a month for income tax that she is not paying income tax. The husband argues the wife declared bankruptcy in 2013 as a result of her income tax debt to CRA. The husband submits the wife has historically received all her support payments free of income tax.

[50] The husband relies on his age and argues that it is an economic hardship for him to continue to pay his wife $8,500 a month pursuant to the 2008 temporary order.

[51] It is argued by the husband that given the date of separation and the significant payments of spousal support (which the wife has had free of income tax), he should not have a continuing obligation for spousal support.

[52] The husband takes the position that the wife benefited financially from the sale and disposition of the cottage and matrimonial home while he received none of the net proceeds of sale. The husband also argues that the wife benefited from remaining in the former matrimonial home until it was sold in 2006.

(ii) Arrears of Spousal Support

[53] The husband takes the position there are no arrears and no retroactive claim for spousal support. The husband argues that the wife’s calculations of arrears of spousal support cannot be relied upon as they do not accurately reflect his income. He argues, as set out above, that he has overpaid spousal support for which he seeks a credit.

[54] The husband argues that the retroactive claim for spousal support following the date of separation was settled by the temporary order of Gordon J. That order directed a lump sum payment over and above the periodic payments. The husband argues that the lump sum originally ordered pursuant to the temporary order of 2008 was reduced in September 2008 to $56,588 taking into account that the husband did not benefit for an income tax deduction for these payments.

(iii) Child support

[55] The husband argues that his obligations for child support have been fulfilled and that there should be no further orders made. It is the husband’s position that after the 2008 temporary order was made, the wife never sought support for the two older children. Kristen, the youngest child, was the only dependent child.

[56] It is the position of the husband that the wife's calculation of retroactive child support in the amount of $285,496 is inaccurate and that there is no basis for the claim.

[57] The husband also relies on the order of Horkins J. dated November 1, 2017 which he maintains terminated child support for the youngest and only dependent child and which order expressed that no child support is owed.

(iv) Section 7 Expenses

[58] It is the position of the husband that there are no retroactive s. 7 expenses owing by him to the wife.

[59] The husband submits he has provided two separate retroactive calculations of the s. 7 expenses for the child, Kristen: According to this calculation, the husband submits the wife owes him $13,599.04 for her proportionate share or at least $11,797.34 if the calculation is based on the 2008 temporary order.

(v) Post-Separation Accounting Claim

[60] The husband takes the position there is no basis or supporting evidence for the post-separation accounting claim made by the wife. The husband submits that post-separation amount claim should be dismissed because the wife benefited from the proceeds of sale of the cottage and the matrimonial home. He also argues that the wife’s bankruptcy claimed in 2013 forecloses the property claim.

(d) Added Respondent

[61] The wife made a claim against the added respondent alleging fraudulent conveyances to her by the husband. The claim was withdrawn by the wife at the commencement of the trial. The added respondent makes a claim for costs. The added respondent and her counsel did not participate in the trial.

V. Analysis

(a) Overview

[62] At the commencement of this trial, the wife brought a motion seeking an adjournment of the trial. The motion was dismissed. Reasons were given orally. This case has been in the system far too long to the detriment and significant expense to the three parties. While it is always preferable that the parties are not only represented but prepared, in this case the parties had ample time to be trial ready. At the Trial Management Conference of November 2017, the issues were clearly defined.

[63] The wife also argued that she is disadvantaged by the fact that disclosure by the husband remains outstanding. The issue of disclosure was repeatedly canvassed in earlier proceedings. On November 3, 2017, in dealing with a number of issues including disclosure, Horkins J. in her endorsement at para. 38 could not have expressed it more clearly,

A trial date must be set at the Trial Management Conference. The parties have had more than 12 years to gather whatever evidence they might require. They have had ample time to get ready.

[64] When the matter came before Stevenson J. on November 4, 2017 for the Trial Management conference, the issues and concerns of both parties’ were, I find, thoroughly canvassed and clearly set out in that endorsement. While the income issues which the parties raise are complicated and complex, they have had ample time to address them. A further adjournment would serve of no benefit and would only further delay the process.

[65] Prior to the commencement of this trial, at various times during these proceedings, the wife was informed by the court that it would be to her advantage to be represented by counsel. At the outset of this trial, she presented no evidence that she had counsel prepared to assist her at trial if an adjournment was granted. Her evidence is that she paid and is paying $4,000 a month for legal advice on a partial retainer. She offered no convincing evidence to satisfy the court that if an adjournment was granted she would retain counsel for the trial.

(b) Issues to be decided

[66] The remaining issues for determination are as set out below.

(i) Divorce

[67] The parties have agreed on the date of separation of April 1, 2004. Based on the evidence at this trial, a divorce order should issue.

(ii) Spousal Support

[68] The central issue at this trial was the wife’s claim for spousal support and the determination of income for support purposes.

a) Spousal support history

[69] On November 5, 2006, the wife and the husband consented to a without prejudice arrangement for payment of child support ($1,500 per month), spousal support ($2,500 per month) and life insurance in the amount of $150,000 to secure support. The November 5, 2006 consent provided for child support for Kristen and Jessica only; Bradley was then over 21 years old. The commencement of child support and spousal support on September 21, 2006. The consent confirmed that the husband paid the wife $1,500 in September 2006 and $1,500 in October 2006 and that the wife was to receive a further payment of $5,000.

[70] The evidence also supports that from 2001 to 2007 the wife has what remained of the sale proceeds of the cottage (at least ($350,000) and the matrimonial home ($134,000).

[71] As a result of a motion brought by the wife, on February 20, 2008, the husband was ordered to pay the wife child support for Kristen in the amount of $2,734 and spousal support in the amount of $8,500. Bradley and Jessica were no longer children of the marriage for support purposes.

[72] The quantum of child and spousal support was based on an imputed annual income to the husband of $350,000. No income was attributed or imputed to the wife.

[73] The 2008 order provided that the husband pay the wife a lump sum of $101,276 for retroactive support going back to January 1, 2007. The wife sought retroactive support going back to January 1, 2006.

[74] On September 23, 2008, the retroactive lump sum was ordered to be changed for an income tax credit to husband and which he would have been entitled to receive for periodic spousal support portion of the award. The lump sum of $101,276 was therefore reduced to $56,588 (being $39,312 for spousal support and $17,216 for child support).

b) Spousal Support Principles

[75] The Divorce Act reads:

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

[76] The issue of spousal support requires two consideration: entitlement and, if entitlement is established, the amount of support,

Entitlement

[77] Subsections 15.2(4) (5) and (6) of the Divorce Act require the court to consider the condition, means and circumstances of each spouse and provide that a spousal support order should address three factors and four statutory objectives:

(4) FACTORS - In making and 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

(6) OBJECTIVES OFSPOUSAL SUPPORT ORDER - An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above an obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[78] The words of Justice McLaughlin in Bracklow v. Bracklow, 1999 SCC 715, [1999] S.C.J. No. 14 at paras. 30 - 31 are instructive:

30 The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies that cannot be easily unravelled. These interdependencies in turn create expectations and obligations that the law recognizes and enforces. While historically rooted in a concept of marriage that saw one spouse as powerful and the other as dependent, in its modern version the mutual obligation theory of marriage acknowledges the theoretical and legal independence of each spouse, but equally the interdependence of two co-equals. It postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails -- including the potential obligation of mutual support. The resultant loss of individual autonomy does not violate the premise of equality, because the autonomy is voluntarily ceded. At the same time, the mutual obligation model recognizes that actual independence may be a different thing from theoretical independence, and that a mutual obligation of support may arise and continue absent contractual or compensatory indicators.

31 The mutual obligation view of marriage also serves certain policy ends and social values. First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”. Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls.

[79] Justice L'Heureux-Dubé in Moge v. Moge, 1992 SCC 25, [1992] S.C.J. No. 107 directed that spousal support must strive to achieve some equitable sharing upon the dissolution of the marriage. At paragraph 73, she stated: "The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse."

[80] In summary, there are three conceptual bases for entitlement to spouse support:

(a) Compensatory (b) Contractual (c) Non-Compensatory

[81] I refer to the words of Justice McLachlin in Bracklow at para 32:

… It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [Emphasis added.]

[82] It is the position of the husband that given the passage of time the wife should now be self-sufficient and that his financial obligation to support her should be terminated. As set out in Bracklow, sometimes the goals of actual independence are impeded by patterns of marital dependence, so that self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support.

[83] The facts in this case establish a long relationship of some 25 years including the years of marriage. The case law that has emerged since Moge and Bracklow were decided maintains that after a long marriage or relationship, the support claimant should be left with a reasonable standard of living judged in light of the marital standard of living that the parties enjoyed when together. While the amount of support will be considered later, some cases, as in Ross v. Ross (1995), 16 R.F.L. (4th) 1 (N.B. C.A.), suggest that a similar lifestyle should be enjoyed by each of the spouses.

[84] In this case the husband continued to pay the support obligation pursuant to the 2008 temporary order and did not seek to change the amount of his temporary order obligations until he brought a motion in 2017. As a result of the passage of time, the wife’s financial dependency on the husband was perpetuated by his conduct. At this stage of her life, the wife is, and I find, remains dependent on the husband.

[85] On the facts of this case, I satisfied that there is a non-compensatory entitlement for spousal support as claimed by the wife.

Determination of Amount of support

a. Means

[86] In Leskun v. Leskun, [2006] S.C.C. 25, the word ‘means’ was given the traditional meaning which includes not only income from employment or earning capacity, but all sources from which financial gains or benefits are received. In certain circumstances it could include money that a person does not have in possession, but that is available to him or her.

[87] The wife relies on a significant disparity in the incomes of the parties. The husband, on the other hand, argues that his means have significantly decreased since the 2008 order was made and that the wife, since 2008, had made no effort to become employed and thereby contribute to her own means. While I find that the wife has made some efforts, she has the ability and needs to do more.

b. Needs

[88] In determining the amount of support need is but one factor. See: Bracklow, supra. The amount of supports does not always equal the amount of the expressed financial need. Here the husband argues that if the wife has need, in the assessment of that need, this court should attribute income to the recipient wife. The husband argues that the wife has done virtually nothing to become self-sufficient to contribute to her needs since separation. I find that her efforts have not been earnest to secure at least minimum wage employment.

c. Accustomed Standard of Living

[89] The wife argues that prior to separation, the family enjoyed a high standard of living where they owned and enjoyed a large house in Aurora, Ontario, had a large cottage in Muskoka and owned a pleasure boat. She testified to a very comfortable life style where the husband was the sole earner and she was able to tend to household management and child care. The wife tended to the routines and obligations of managing their households at the home and cottage for the family and in assisting him with his business.

[90] It is the husband’s position that the financial circumstances of the family prior to separation were financially desperate. The husband’s evidence is that the turn in their financial circumstances required the parties to sell the cottage in 2002. To support his position, the husband refers to his line 150 of the Tax Returns incomes for the years 2002 to 2005 (as set out below). The husband did not however deny that prior to 2002 the lifestyle of the parties was a comfortable one, as described by the wife.

[91] In Gray v. Gray, 2014 ONCA 659, the Court of Appeal held that 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. Lauwers J.A. writes:

[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), 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.

[92] In considering lifestyle in the case before me, I also consider the wife’s ability to support herself. In the Gray case, supra, the wife had health issues. There was no evidence that the wife in this case is or was prevented from working due to health. The wife in this case had not worked and had no skills to return to work immediately following the separation. She also had children at home.

[93] While the wife in this case went back to school to improve her credentials, her evidence is that despite her efforts to become employed she has not been successful in doing so. Shortly after the separation and at the time the temporary support order was made only one child, Kristen, was dependent upon her. Kristen was then 15 years old. The wife also takes the position that the adult child, Bradley, has special needs that require her to support Bradley.

[94] Apart from the oral evidence of the wife, there was no convincing evidence for me to make a finding that Bradley is now financially dependent on the wife. I accept her evidence that Bradley continues to live with her and she helps him financially. I am not able to find she is required to do so.

[95] In the circumstances of this case, I find there is no present need for the wife to remain at home to provide care for an adult child. The wife’s evidence, or lack of evidence, leads me to conclude that following separation she did not make earnest efforts to obtain even minimum wage employment. As a result, I am left to conclude that this is a case where income should now be imputed to the wife in considering the amount of ongoing spousal support to sustain her needs.

Whether to Award Retroactive Support

[96] The wife asks that I make an order for retroactive spousal support. In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, it was held that in looking at a claim for retroactive spousal support, the consideration are the same as claims for retroactive child support (See: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.)

[97] Generally, when there is a support obligation, it will not always be appropriate to order retroactive support. The factors that a court should consider are:

(1) reasonable excuse why the support was not sought earlier; (2) conduct of the payor; (3) circumstances; and (4) hardship occasioned by the retroactive award.

[98] Consideration of the spouse seeking retroactive support relates to the needs of the spouse claiming that retroactive support. The consideration requires looking at the time the support should have been paid and circumstance through a retroactive award. A spouse who underwent financial hardship in the past may be compensated for the unfortunate circumstance endured through a retroactive award. Usually the spouse seeking a retroactive award has accumulated debt directly related to the deficiency.

[99] The wife argues that had she known the husband true income which he reported after the 2008 temporary order was made, she would have been entitled to a greater amount of support. Here the husband did not report his true income as he was obliged to do by the 2008 order. The wife takes the position that as a result of her financial hardship, she did not pay her income tax on the support she received. In the end and as a result of the income tax debt, she was forced to declare bankruptcy. The hardship arose by her failure to pay income tax on the support that was paid.

[100] I find that if there was hardship, the bankruptcy relieved her of the hardship for which she now claims retroactive spousal support.

[101] While the conduct of the husband should not be rewarded, it is difficult to find a resulting hardship. I also bear in mind the current state of financial affairs of the husband. If he was paying an inadequate amount of spousal support I am unable to find that he now finds himself in a corresponding financial advantage. At the date of this trial, the husband has very little in the way of assets. While the wife asserts that the husband’s assets are hidden, there is no evidence before me to make that finding. The wife also argues the husband has over the years of their separation diverted funds to his common-law partner. I propose to consider that allegation when considering the husband’s income.

[102] The husband argues that the wife’s income ability, or income potential in those years would have mitigated the financial hardship and need she allegedly suffered.

[103] As set above, the wife could have contributed to any deficit by working outside the home for the period she seeks retroactive support. In the end, I cannot find financial hardship, as argued by the wife, to warrant a retroactive award for spousal support.

[104] In exercising my discretion and on the facts before me, I would make no order for retroactive spousal support as claimed by the wife.

Imputation of income

[105] In this portion of my analysis, I propose to review imputation of income as argued by both the husband and the wife. They argue that income should be imputed to the other.

[106] The husband maintains that the wife is employable and that she has made no effort to become employed since the parties separated when she had the ability of being gainfully employed. The husband also argues that if income is imputed to the wife her ongoing need of support should end.

[107] The wife maintains that the husband’s income since separation and presently is greater than he testified to and which he has reported to the CRA for income tax purposes.

[108] In Mason v. Mason, 2016 ONCA 725, Simmons, J.A. provides a thorough analysis for imputation of income. The Court of Appeal notes that Chapter 6 of the SSAGs addresses income. Section 6.1 states: “[t]he starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines.” See: paras. 48-58.

[109] Section 16 of the Federal Child Support Guidelines sets out the general rule that income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency (“line 150 income”):

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

[110] In paras 57-60, Simmons J.A. sets out a useful roadmap for fairly determining income for support purposes:

[57] Sections 17 and 18 permit a court to depart from line 150 income where the court is of the opinion that the determination of the spouse’s line 150 income would not be the fairest determination of income.

[58] Section 17(1) allows a court to consider patterns or fluctuations in a spouse’s income over the last three years while section 17(2) permits a court to adjust non-recurring capital or business investment losses:

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

(2) Where a … spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the … spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

[59] Section 18 allows a court to add all or part of pre-tax corporate income for the most recent taxation year to a spouse’s income:

18 (1) Where a … spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the … spouse’s annual income to include,

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

[60] Sections 19 addresses imputing income to a spouse and sets out a non-exhaustive list of circumstances in which income may be imputed:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

a. Income of the respondent

[111] I will first examine the income of the husband. For current support purposes, the husband relies on his Income Tax Return for 2017 where he reported a (line 150) income of $136,000.

[112] Historically and since the 2008 temporary support order was made, the husband maintains that his income has been significantly less than $350,000 which was imputed to him. In fact, after the order was made, the husband’s (line 150) income for 2008 and in some of the subsequent years was much greater than what was imputed to him.

[113] The husband’s historic (line 150 income) since the 2008 temporary order can be summarized in the chart set out below:

[114] See the chart set out below:

Year	Amount
2008	$403,404
2009	$291,005
2010	$554,566
2011	$942,636
2012	$230,386
2013	$325,740
2014	$69,234.23
2015	$106,000
2016	$130,000
2017	$136,469

[115] The husband takes the position that in looking at the line 150 for these years in the chart, his income should be reduced further and, as follows:

1. 2007 (not in the above chart) included $131,215 in capital gains income;
2. 2012 included collapsed RRSP’s of $76,857 to pay support obligations;
3. 2013 includes $140,000 of a loan from Richardson GMP, his former employer; and
4. 2014 includes $140,000 of a loan from Richardson GMP, his former employer.

[116] In considering the husband’s submissions on his historic income, I do not entirely agree with his position.

[117] In looking at the 2007 income, I do not accept that the capital gain income should not be considered.

[118] With respect to the $140,000, these are annualized amounts of a five year signing bonus of $700,000 which the husband received in advance in 2012. The husband was employed in these years and these bonuses should form part of his income for 2013 and 2014. Pursuant to the husband’s employment contract, he may owe the unearned portions of this bonus to his former employer, Richardson. As he indicated in his evidence, his termination is the subject of litigation. If he was terminated without cause, he may be entitled to the $700,000 bonus in its entirety. The husband is defending the claim against him by his former employer and makes a counterclaim in that litigation. According to the pleadings in the Richardson lawsuit, the husband is suing his former employer for $2,750,000 for wrongful dismissal claiming wrongful interference and for $250,000 for defamation.

[119] If the husband is successful in the litigation, as he believes he should be, then his income for the five years of employment will and should include his $700,000 bonus.

[120] Even If one assumes the husband is correct so that his income calculations for the years 2008 to 2017 are reduced, in those ten years, according to my reckoning, the husband earned a total of in excess of $2.8 million of income. The average for those past 10 years (2008 -2017) results in an annual income of over $280,000. While the court will usually look to a three year average, given the volatility and the significant fluctuation of the husband’s income over the 10 year period, a look at those ten years is, I find, warranted here.

[121] The $700,000 bonus was paid in advance and received by the husband. The husband acknowledges transferring $545,000 to the other respondent. The husband acknowledges that $420,000 of that amount reflect three years of the Richardson ($700,000) bonus, Ms. Hearnden, who now hold this money, is not a party in the Richardson action. I cannot help but conclude that this money is being held by Kelly Hearnden, the other respondent as a result of the Richardson lawsuit, or perhaps to distance the funds paid which were paid to the husband by Richardson.

[122] The temporary order required the husband to report his income with documentation every a six months. The husband did not do so. No doubt had the husband provided the wife that information, the wife would have moved for an increase of temporary support. The husband’s income in each of, at least, three years (2008, 2010 and 2011) following the 2008 order exceed the $350,000 attributed to him.

[123] It is also of interest to note that prior to 2008, the husband’s reported (line 150) income for the years 2002 to 2007 were as set out below:

Year	Amount
2002	$10,523
2003	$78,328
2004	$30,870
2005	$50,577
2006	$457,832
2007	$657,049.91

Note: The Respondent's line 101 income in 2007 = $525,658.50; the Respondent's 2007 includes $131,215.03 in capital gains income.

[124] In the six years (2002 to 2007), which predated the 2008 temporary order, the husband’s six year total (line 150) income was $1,285,179. The average annual (line 150) income is $214,196. This average is still well above the $130,000 annual income the husband argues I presently accept for support purposes.

[125] In determining the husband’s income for support purposes, the income of the Bonaventure bears examination. As the incorporator of Bonaventure in 2014, the husband incorporated the company with the other respondent. While the husband argues that his common-law partner, the other respondent, is legitimately a 50/50 owner of Bonaventure there is no evidence that she has a background or expertise in the resource and mining sector or in investments. There was no evidence that his partner invested capital in the startup of Bonaventure.

[126] The Financial Statements of Bonaventure were put into evidence through the husband. The Annual Reports of Bonaventure reveal the following with respect to income or profit of the corporation:

Year	Consulting Salaries (gross)	Revenue from Securities	Gross Profit I (Loss)	Total Expenses	Net Operating Income
2014 (Oct to Dec)	$50,850	$43,958.06	$94,808.06	$97,130	( -$2,321.94)
2015	$158,092.82	(-$32,191.04)	$125,901.78	$266,042.56	(-$140,140.78)
2016	$285,166.50	$39,615.71	$324,782.21	$257,587.77	$67,194.44
2017	$264,653	$141,950.49	$406,603.49	$320,566.65	$86,036.84

[127] The gross profits of Bonaventure for the past four years (including only two plus months for 2014) total $952,094 or an annual gross profits average of $238,023 for each of those four years. In 2014, the husband also had income from his former employer, Richardson. If one looks at the full three years of operation, the total gross profits total $854,964 (for three years) and average $284,988 a year.

[128] As set out in the above chart total (gross) consulting salaries paid by Bonaventure (to the husband) for the years 2015 to 2017 is $727,911. The husband’s consulting salary is an average of $242,637 a year.

[129] The corporate documents and business records filed in these proceedings show that the other respondent is a registered owner of 50% of Bonaventure. I agree with the wife that the corporate structure appears to be designed to split, with the other respondent, his common-law partner, what is essentially the husband’s work product and income.

[130] The husband evidence was that prior to working for Bonaventure, until 2009 or 2010, the other respondent worked as a legal secretary. She was not employed outside the home until Bonaventure was incorporated in September 2014 and when she was designated President of the company.

[131] The husband testified that the other respondent works for Bonaventure. The corporate headquarters and operation is the residence which the husband and his partner occupy. The husband testified he and the other respondent each have their own offices.

[132] When asked about the work the other respondent performs for Bonaventure, the husband testified that 90% of her involvement is interpersonal relationships and servicing and entertaining of clients. In his testimony, the husband gave the example of the other respondent entertaining the CEO of a “Tinka Resources” on “our” boat. He confirmed that the other respondent has no formal training in the mining, resources or securities industry.

[133] There was no convincing evidence as to what portion of the workload of Bonaventure the other respondent preforms or the value of her work to Bonaventure, Similarly, there was no satisfactory explanation as to why the other respondent is a 50% owner of Bonaventure. While she may assist the husband in entertaining clients, the evidence fails to convince me that this entitles her to be a 50% owner.

[134] The husband testified the other respondent has not been paid income by Bonaventure because the husband does the bulk of the work. For her involvement she receives dividends. Nevertheless, dividends are income taxed at a lower rate. Clearly, this structure and way in which the other respondent is compensated is also to the husband’s and his partner’s advantage financially.

[135] The person who would have been able to shed light on the financial structure of Bonaventure and its finances is the husband’s and Bonaventure’s accountant. The accountant was on the husband’s witness list, but in the end, the husband decided not to call him as a witness. Not calling the accountant is, I find, to the husband’s detriment as it leaves the court with gaps in understanding the financial structure and operation of Bonaventure, including the other respondent’s role in it.

[136] In the end, I cannot help but conclude that designating the other respondent as an owner of Bonaventure is not only a form of, what is argued, “legitimate” income splitting with the husband. It also is a method of reducing the husband’s income (and assets) for support purposes. Without the Bonaventure corporate structure in place, the husband would, if find, ordinarily earn all the income from Bonaventure and its assets would effectively be his.

[137] The Expenses Portion of the Bonaventure Financial Statement for 2017 discloses expenses that Bonaventure paid for and from which the husband and the other respondent clearly benefit personally. There is no evidence as to how these are apportioned for personal use and as between the husband and his partner, nor is there any attribution of these benefits to the husband in his reporting of income for income tax purposes.

[138] Overall the business expenses of Bonaventure give me some concern. In 2017, the expenses exceed $165,000 and include, but are not limited to:

1. Rent (for the residence & corporate offices) of $27,746
2. Autos of $7,393.
3. Travel of $7,696
4. Entertainment of $7,696
5. Communication (phones, internet, etc.) $12,397
6. Legal Fees of $104,657

[139] The personal benefit of items 1. to 5. to the husband and his partner are not accounted for.

[140] With respect to item 6., legal fees, the evidence of the husband is that this expense related to the lawsuit commenced against him by his former employer, Richardson GMP. The husband’s evidence is that the legal fees do not related to these family proceedings, but are legitimate business expenses incurred for the Richardson lawsuit only.

[141] In my review of the Richardson pleadings, the lawsuit commenced by Richardson is against the husband personally and not Bonaventure. Apart from the evidence of the husband, there is no satisfactory evidence that the legal fees incurred in the employment lawsuit are, or should be, the expenses of Bonaventure. Ms. Hearnden who is a 50% owner of Bonaventure is neither a party nor referred to in the Richardson lawsuit yet, as an owner of Bonaventure, she bears the legal fees expense. As such, this expense should be added back and form part of the husband’s income for 2017.

[142] As already expressed, the Financial Statement of Bonaventure were made exhibits through the evidence of the husband. On its own, his evidence did not satisfy me that the Financial Statement of Bonaventure are accurate or reliable.

[143] The “Annual Reports” are covered with a statement of Kelly L. Hearnden. The statement refers to be “to the best of her knowledge” as an “accurate accounting” of the company’s financial operation. As already said, Kelly Hearnden is the husband’s life partner, the other respondent in these proceedings, and 50% owner of Bonaventure. Although present in court during some portions of the trial, she was not called by the husband to testify with respect to the preparation of the Financial Statements, the accounting operation of Bonaventure or her role in the company.

[144] There is also no evidence as to the method used for financial reporting nor is there evidence as to what internal controls or systems were used to safeguard the accuracy of the financial statements.

[145] The Financial Statements are also devoid of any notes or explanations. While notes are not absolutely necessary, they are frequently used to explain the accounting methods used in the preparation of financial statements and how specific accounts, or amounts were calculated. As an example, notes to the financial statement could have provided an explanation with respect to the “Richardson” lawsuit legal fees.

[146] Notes would also provide the court with additional information to help explain specific items in the corporate financial statements, such the expenses in paragraph 136 above, as well as providing more comprehensive information on the issue of reliability.

[147] The court was provided no evidence as to Ms. Hearnden’s knowledge of accounting or bookkeeping in the preparation of the corporate financial statements. There is no statement from an accountant with respect to the accuracy or reliabilty of the financial statements as filed.

[148] The only evidence on this point is that of the husband himself. His evidence is that the management salary as set out in the Bonaventure financial statement is his only income. He relies on the fact that management salary as expressed in the financial statement was accepted by CRA as his taxable income. While the husband in his testimony referred to accounting principles and expressed conformity with GAAP, he is neither an accountant nor an objective witness on this issue.

[149] While it may appear to be a small item as to accuracy, in each year of the Financial Statements the management salary is followed by the initials, KH, being the initials of the other respondent, Kelly Hearnden. The husband explained this as a typographical error. His testimony is that the salary designated at KH was really his and not the other respondent’s. While he may be correct, it difficult to accept that the error occurred each and every year of the four years of the financial statements without it being caught or corrected.

[150] The company's financial statements as filed in evidence are not audited. I accept that an audit is expensive and perhaps unnecessary given the size, nature and structure of Bonaventure. Some accounting evidence with respect to accuracy and reliability of the corporate financial statements would have been helpful.

[151] In summary, the husband's testimony alone fails to convince me as to the accuracy and reliability of the Bonaventure Financial Statements upon which the husband relies for a finding of his income.

[152] The categories listed in s. 19 of the Federal Child Support Guidelines are merely examples of circumstances where income may be imputed. Where on the balance of probabilities, there is reason to doubt the accuracy of business Financial Statements, or where untaxed business income is used for payment of personal expenses “grossing up” a spouse’s income is appropriate. The fundamental principle is that the court must estimate the actual means available for support purposes. If less income is earned or less tax is paid as a result of a corporate structure, more income is available to the payor.

[153] In estimating the husband’s income, I also looked at the Richardson lawsuit. In the Richardson lawsuit, the husband alleges entitlement to the bonus of $700,000 paid to him by Richardson. The payment was made in 2012, and in advance, pursuant to the husband’s employment agreement with Richardson.

[154] The husband testified that the bonus payment was structured as a debt pursuant to a Loan Agreement with Richardson secured by a promissory note. The husband received a $700,000 bonus for five years of employment so that in each year of the five year term 1/5 of the principal amount, or $140,000, would be earned.

[155] In 2014, Richardson issued a T4 for the husband showing an income of $209,234 which included $140,000 for that year. A 2014 T4 was re-issued by Richardson removing the bonus, In its lawsuit, Richardson maintains the remainder of the bonus was not earned given the husband’s dismissal in that year.

[156] In these proceedings, relying on that re-issued T4 the husband maintains his income for 2014 should therefore be reduced by the $140,000 portion of the bonus. However, the husband in the Richardson action alleges wrongful dismissal and therefore entitlement to the full $700,000 bonus because he was wrongfully dismissed.

[157] In the Richardson lawsuit, the husband’s Statement of Defence and Counterclaim, and specifically in paragraph 36, the husband pleads that Richardson wrongfully maintained the ‘”Ballanger’s Book” (clientele) and on termination forbade him to contact his clients. In paragraph 41, he pleads Richardson’s wrongful interference with his clients cost him a capital loss estimated at between $1.5 and $2.5 million for the loss of his Book.

[158] In paragraph 44 of the pleading it is stated “… the value of his Book cost him gross revenue of at least $1,000,000 per year (of which Ballanger would receive approximately $500,000 per annum) in addition to its value as an asset on sale of his Book of at least $1.5 million.”

[159] In paragraph 42 of that Statement of Defence and Counterclaim, the husband pleads that, as a result of his dismissal, he “lost revenue of at least $500,000 per year from the commissioned revenue he would have reasonably been expected to make ….” This is a far cry from his evidence with respect to income before this court.

[160] It was not denied by the husband that over the years of his relationship with the other respondent money was transferred to her. Based on the husband’s disclosure provided to the wife, her evidence is that since separation in 2004, the husband transferred almost $1 million to the other respondent. The wife relies on transfers to the other respondent which she traced as follows:

DATE	AMOUNT
2 November 2004	$20,000.00
30 December 2008	$75,060.00
20 January 2011	$5,000.00
23 March 2011	$5,000.00
27 May 2011	$5,000.00
12 August 2011	$100,000.00
30 October 2012	$350,000.00
27 May 2013	$20,000.00
22 July 2013	$20,000.00
31 August 2013	$29,500.00
31 January 2014	$180,000.00
16 January 2015	$50,000.00
11 August 2015	$15,000.00
24 February 2015	$50,000.00

Total: $924,560.00

[161] The husband maintains that the transfers to the other respondent were legitimately made. Even if he is correct, the transfers cast doubt on his true income and his assets.

[162] It is also interesting to note that with respect to his assets, the husband’s most recent sworn Financial Statement of April 17, 2018, prepared for these proceedings, shows his net family property is only $79,067.52.

[163] In the review of all of the evidence, I find that relying on the husband’s line 150 income for 2017 would not be the fairest determination of income for support purposes. I am therefore of the view that it would be fairer to impute income to him based on the evidence or lack of evidence at this trial.

[164] In summary, in coming to the conclusion to impute income to the husband, I consider the following:

(a) The patterns of fluctuations in the husband’s income during the marriage and since separation as referred to earlier. (b) The fact that the husband is the incorporator, shareholder and director of Bonaventure. My review of the financial statements of Bonaventure and its structure leads me to conclude that the relying on the husband’s line 150 income is neither reliable nor the fairest approach. By the incorporation of Bonaventure, the husband is not only diverting income, but provides himself an income tax advantage from the corporate structure that he put in place in 2014. (c) The dividends paid to the other respondent by Bonaventure, of at least $50,000, reduce the corporation’s and thereby, the husband’s income (d) The husband and the other respondent benefit personally from the expenses of Bonaventure. Adding back the Richardson legal fees paid by Bonaventure alone, increases the husband’s income for 2017 by $104,000. (e) The husband testified that he used the Bonaventure corporate bank account to give money to his children. He was not sure how these personal payments were treated in the finances of Bonaventure (f) In 2015 the husband paid $28,000 to the wife to satisfy his spousal support obligation using the Bonaventure corporate bank account. In 2015, his personal bank accounts were frozen by CRA. His explanation was that this personal payment by Bonaventure was accepted by CRA. The accounting of this transaction from which the husband benefited personally was never properly clarified.

[165] I also considered the husband’s lifestyle. The wife alleges that the husband presently enjoys a luxurious life style. The husband’s home, in Port Perry, Ontario, and shared with the other respondent, is a large home and property. The wife alleges he and the other respondent take frequent trips. The husband’s response was that his travel is work related. The wife also alleges the husband owns a yacht where he and the other respondent enjoy their summers. The husband’s response is that his boat is financed and that the financing exceeds the boat’s market value. There was not further evidence on this point.

[166] From the evidence, one cannot but conclude that the husband’s life style is better than that of the wife, however, it is difficult to describe it as “luxurious”. It is not a stretch, however, to find that it is better than that enjoyed by the wife.

[167] The husband’s annual expenses, as set out in his sworn April 2018 Financial Statement, filed in these proceedings, including his spousal support obligation reveals that he spends $16,075 a month. There is no budget line for payment of income tax. In the end, I conclude that given these expenses, he would be hard pressed to sustain his budgetary needs on a pre-tax income of $136,000 a year.

[168] In this action the husband seeks to eliminate his support obligations to the wife so that his monthly expenses (excluding income tax obligations) would be $10,833 a month. Even that level of need leads me to conclude that for support purposes there should be imputation of income to the husband.

[169] The wife’s testified to the husband having offshore accounts based on the fact that during their relationship, she and he had accounts in Switzerland and the Bahamas. The husband acknowledged that historically that was the case, but denied now having any offshore investments or income from such investments. There was no reliable evidence to support the position of the wife that the husband has offshore investments or income and I cannot make that finding.

[170] In the end, and on the evidence at this trial and the above analysis, pursuant to the SSAG, it is appropriate in this case to depart from the line 150 income of the husband and impute income to the husband. Accordingly, I find that the husband income, for support purposes, should be imputed to him at $225,000 a year.

b. income to the applicant

[171] I now turn to the income of the wife. She reports no income from employment for 2017.

[172] It is argued by the husband that the wife is an intelligent, articulate and skilled woman. Relying on her ability to represent herself at trial, it was submitted by the husband that the wife has demonstrated computer and organizational skills which make her employable. The husband also relies on the fact that in her evidence at trial, the wife failed to provide evidence that she is unable to work. The wife did not produce medical or other evidence that would limit her ability to work outside the home.

[173] In her evidence, the wife testified that she upgraded her skills after separation by completing a four year program in Interior Design from Yorkville University. There was no satisfactory explanation as to why she had not obtained either full or part-time employment in that industry.

[174] It is fair to accept, and as the wife testified, that her age and lack of employment history or experience is a negative factor to being employed. In any case, and as the wife herself appears to accept, a minimum wage income should be imputed to the wife.

[175] Bearing in mind a minimum $14 an hour for a 30-36 hours week, I am of the view that an annual income should be imputed to the wife. In addition, I am of the view that she should be recovering some contribution from the parties’ son who lives with the wife and who should be contributing to the living arrangement.

[176] For the purposes of calculating spousal support and in considering these facts, I would impute an annual income to the wife of $25,000.

Quantum of Support

[177] In Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. 38 (C.A.), Lang J.A. acknowledges that the Spousal Support Advisory Guidelines (SSAG) are a useful tool in determining spousal support once entitlement is found. In this case, I considered the SSAG in context and applied them to the unique circumstances of this case. Both parties provided and relied on Divorcemate/Federal Spousal Support Advisory Guidelines (SSAG) calculations for their arguments. The SSAG formula generates a range of spousal support. The SSAG calculation provides three possible monthly spousal support amounts at the low, mid and high points of the range. The calculation I considered is based on the income imputed to the parties and on the basis that there are no dependent children living with either party or no child support payable.

[178] Ascribing an annual incomes of $25,000 to the wife and $225,000 to the husband I attach as appendix A, a Divorcemate Software pursuant to the SSAG. According to the calculation the range of spousal support that would be payable is as follows: (a) low end, $5,750, (b) mid-point $6,708 and,(c) high end $7,667.

[179] Based on the guidelines and in the exercise of my discretion, I am of the view that spousal support should be set at $6,500 a month payable by the husband to the wife with a commencement date of June 1, 2018.

[180] I find that it is not appropriate in the circumstances of this case to impose a specified duration for the payment of spousal support.

(iii) Arrears of Spousal Support

[181] The wife seeks an order for retroactive spousal support going back to 2005. In her testimony, the wife provided a chart which was made as an exhibit and which calculates retroactive spousal support of $583,499.

[182] The considerations governing an award of retroactive spousal support were considered in a number of case by our court of appeal. See Bremer v. Bremer, [2005] O.J. No. 608, Marinangeli v. Marinangeli, [2003] O.J. No. 2819 and Price v. Price, [2002] O.J. No. 2386. The considerations include:

(a) the extent to which the claimant established past need (including any requirements to encroach on capital) and the payor’s ability to pay; (b) the underlying basis for the ongoing support obligation; (c) the requirement that there be a reason for awarding retroactive support; (d) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; (e) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; (f) notice of intention to seek support and negations to that end; (g) delay in proceeding and explanation for the delay, and (h) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.

[183] In the circumstances of this case, I am of the view that a retroactive spousal support award would not be appropriate or fair. There is clearly blameworthy conduct on the part of the husband who failed to comply with the temporary support order to disclose his income every six months. Had he done so, the wife would likely have moved for an increase.

[184] While the wife was receiving child and supposal support, the wife never paid income tax. The wife’s evidence was that she was forced to declare bankruptcy as a result of inadequate support. In the end, the bankruptcy allowed her to benefit by receiving support free of paying any income tax. The result of the wife’s bankruptcy exceeded the amount she claims in spousal support arrears. Even if the wife was successful in recovering a retroactive award, there is no evidence that the husband would be able to satisfy such an order. Based on the husband’s assets, on the evidence before me, the impact of a retroactive spousal support award would create an undue financial burden on the husband. On the evidence before me, he could not satisfy such an obligation.

[185] Moreover the wife has not worked outside the home when she was able to contribute to her own needs during the period for which she seeks a retroactive award.

[186] Retroactive spousal support is not granted as a matter of course. Bearing all of the facts and circumstances of this case and the factors set out above, I find that the relief as sought by the wife should not be granted.

[187] In his claim, the husband seeks a credit for what he alleges is overpayment of support since the temporary order of February 20, 2008. For the reasons set out above, that claim should be dismissed including the husband’s clam that I fix any arrears for spousal support owing (and as being enforced by the Family Responsibility Office) at $0.

(iv) Child Support and Arrears of Child Support and s.7 Expenses

[188] When the matter came before Horkins J. on October 31, 2017 the endorsement released on November 3, 2017, 2017 ONSC 6642, terminated the wife’s child support claim. Paragraphs 87 to 91 of the endorsement, read as follows:

[87] Paragraph 1 of the Gordon order requires the respondent husband to pay child support for Kristen Brianne Ballanger, born April 17, 1993. This is the only child support order that has been made.

[88] Kristen is now 24 years old. The respondent husband seeks an order that child support be terminated effective of November 1, 2017, without prejudice to his right to seek orders at trial that this child support should be terminated sooner and that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.

[89] In paras. 106 to 113, the respondent husband sets out what he has paid for child support. He details Kristen’s post-secondary education and when she has not been attending school. In particular, he states that Kristen is no longer living with either parent and is employed.

[90] The applicant wife responded to the respondent husband’s affidavit and in particular paras. 106-113. She vigorously disputes the respondent husband’s evidence about the child support he has paid in the past. Her affidavit says nothing about the respondent husband’s evidence that Kristen does not live with either parent and is now working. This undisputed evidence confirms that child support is no longer payable.

[91] Based on these facts, there is no obligation to pay child support for Kristen. Effective November 1 2017 the child support ordered in paragraph 1 of the order of Gordon J dated February 20, 2008 is terminated. This is without prejudice to the respondent husband’s right to seek orders at trial that this child support should be terminated sooner and that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.

[189] Accordingly, at this trial, the husband seeks an orders at trial that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.

[190] The wife claims that from 2005 to 2017, she is owed $285,496 in arrears of child support based on the line 150 income of the husband for those years.

[191] The wife admitted in her direct examination and during her cross-examination that the husband paid for the majority of the children’s post-secondary expenses following the parties’ separation.

[192] The husband testified that he paid various special and extraordinary expenses. As an example, the husband alone paid for the son Bradley to attend film school for which he paid approximately $12,000. The wife also admitted that the husband paid for the child Kristen tuition, rent, some travel between Toronto and Vancouver and other expenses while Kristen attended Emily Carr University from 2011 to 2014.

[193] While Kristen attended George Brown College in Toronto, the evidence is that the wife paid for the tuition and the husband paid for Kristen’s rent during the school year. Upon returning from Vancouver, Kristen attended the Ontario College of Art and Design. The husband paid for this tuition with the wife making one payment in 2018.

[194] In his claim, the husband has two separate calculations setting out his claim for retroactive extraordinary expense owing to him by the wife. His claim is for $13,599 based on the wife paying 40% of the expenses or for $11,797 using 34.7% (based on the proportionate share pursuant to the February 28, 2008 temporary order).

[195] I am mindful of the fact that the husband diligently paid his child support obligations pursuant to the temporary order of February 28, 2008. I also bear in mind, and as already noted that he was less than forthcoming in disclosing his income so that the amount of child support payable may not have been an appropriate child support guideline amount.

[196] In this situation, it may well be that the husband was deficient in his child support obligations. In some years, based on his line 150 income, he clearly would also have overpaid.

[197] The wife's evidence and position at this trial that is that I find that the deficiency weighs in her favour and that the deficiency of child support caused her to file for bankruptcy.

[198] In the end, as a result of the bankruptcy, and as already expressed, any debt she incurred by not paying income tax no longer exists. As such, if I find in her favour that child support is owing, it would result in a windfall. While I do not blame the wife for the circumstances she found herself in, the husband acted consistently abiding by the terms of the February 28, 2008 court order so that there was an ongoing pattern and certainly governing their financial affairs.

[199] In determining whether to award retroactive child support while I find the husband is blameworthy for not producing his income information as ordered. No level of blameworthy behavior of a parent who avoids child support should be encouraged. In this case, the husband’s conduct was, I find, mitigated when he later picked up the bulk of the children’s (Bradley’s and Kristen’s) post-secondary education expenses beyond his statutory obligation.

[200] While the wife endured hardship which may have prevented her from meeting her income tax obligations, at the end of the day, there is no corresponding debt for the deficiency of child support which she attributes to the husband.

[201] Child support is and must be child related. The wife now has no corresponding debt for the claim she makes for retroactive child support. Fairness demands that as situations change obligations change to meet them. I also refer to my reasoning set out above regarding the retroactive spousal support claim.

[202] In conducting a D.B.S., supra, analysis I find in the unique facts of this case that there should be no award for retroactive child support to the wife. On the facts and evidence before me, I therefore find the claims of the parties for retroactive child support and s. 7 expenses should be dismissed.

(v) Additional Claims

[203] The wife’s claim that the husband owes her $50,000 pursuant to a 2007 agreement is dismissed. The claim was simply not support by the evidence and there is no reason to make any such order.

[204] The wife submitted that the husband has not fulfilled his costs obligation pursuant to the April 21, 2008 temporary order. If the costs portion of the order of April 21, 2008 have not been paid by the husband to the wife, I order that the amount be factored in the support adjustments that result from this order.

[205] The wife sought additional post-separation adjustments which I find are rooted to her claim to an equalization amount. While I agree there was never a formal equalization of the net family assets of the husband and wife post-separation given the assets in issue and the history of the case there would likely be no equalization amount payable. In any case, it was agreed by the parties that equalization would not be an issue at the trial. An order reflecting that agreement was made prior to commencement of this trial. As a result, I see no reason to make an order for an asset based post-separation adjustment.

[206] The evidence at this trial is that the husband maintains health/medical coverage for the wife and has done so since the parties separated in 2004.

[207] The wife also sought and order that the husband maintain the wife as irrevocable beneficiary under his life insurance policy(ies).

[208] The husband’s financial statement sworn on April 17, 2018 sets out that the husband is the owner of a life insurance policy with Canada Protection Plan in the amount of $150,000 with the wife as his designated beneficiary. Given the husband’s support obligation designating the wife as irrevocable beneficiary under the plan is appropriate and I would so order. The amount of life insurance may be inadequate to meet the husband’s spousal support obligation. As such, the obligation for spousal support should be binding on the estate of the husband.

[209] In the wife’s amended divorce application, she makes claims and seeks relief against the other respondent, Kelly Hearnden. Given the wife’s position at the outset of this trial not to pursue her claims against the other respondent, all the claims against Kelly Hearnden are dismissed.

VI. Conclusion

[210] In summary, I make the following orders:

(1) Divorce is granted. (2) Commencing June 1, 2018, the respondent shall pay the applicant spousal support in the amount of $6,500 per month and thereafter on the first day of each month. (3) The claim by the applicant for retroactive spousal support is dismissed. (4) The claim by the respondent for retroactive spousal support credit is dismissed. (5) The claims of the applicant and the respondent with respect to retroactive child support and s. 7 expenses or credits are dismissed. (6) The respondent shall maintain existing health insurance coverage for the applicant. (7) The respondent shall maintain the existing life insurance policy with the applicant designated as irrevocable beneficiary as a fund out of which support may be payable in the event the respondent predeceases the applicant (8) In the event the life insurance is not in place or inadequate the spousal support payments shall be binding on the estate of the respondent. (9) The claim of the applicant for post-separation accounting is dismissed. (10) The respondent shall forthwith pay to the applicant the costs owing of $6,500 pursuant to the order of April 21, 2008. (11) The claims of the applicant against the other respondent, Kelly Hearnden. are dismissed

[11] Unless this order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing shall be paid to the Director, who shall pay them to the applicant.

VII. Costs

[211] I encourage the parties to resolve the issue of costs. If the issue of costs is not settled, any party seeking costs shall make submissions in writing by November 30, 2018. The submission are to be limited to five pages. The submissions shall include offers to settle and a costs outline.

Kruzick J.

Released: October 9. 2018

Appendix A

COURT FILE NO.: FS-16-413743 DATE: 20181009

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Colleen Debra Ballanger Applicant – and – Michael John Ballanger Respondent – and – KELLY HEARNDEN Respondent

REASONS FOR JUDGMENT Kruzick J. Released: October 9, 2018