Court File and Parties

COURT FILE NO.: F1484/16-00FD DATE: April 16, 2019 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Mary Ellen Hall, applicant AND: Christopher Douglas Clifford Hall, respondent

BEFORE: MITROW J.

COUNSEL: Denis Burns for the applicant Michelle Raithby for the respondent

HEARD: January 16, 2019

Endorsement

[1] This is the applicant’s motion for interim spousal support pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The applicant seeks $10,500 per month commencing November 1, 2018.

[2] The significant issue on the motion is the respondent’s retirement and the income to be imputed to him, if any.

[3] Both parties filed calculations pursuant to the Spousal Support Advisory Guidelines (“SSAG”).

[4] The applicant also seeks an interim order maintaining her as irrevocable beneficiary of a $1 million Manulife policy. This was not opposed by the respondent during argument.

[5] This matter has been placed on the trial list for November 2019.

[6] For reasons that follow, the respondent is ordered to pay interim spousal support in the amount of $8,000 per month commencing November 1, 2018.

Background

[7] The parties were married in July 1990 and separated in November 2010, after over 20 years of marriage.

[8] The parties have two daughters, Robin and Charlotte, ages 24 and 18 respectively. They are both attending a post-secondary educational institution.

[9] Currently the applicant is age 55 and the respondent is age 59.

[10] The respondent, at paragraph 80 of his affidavit, concedes that the applicant has entitlement to spousal support, but he adds that the applicant’s entitlement is “exhausted” given the financial support she has received since separation; and the respondent further deposes that, in any event, he has no ability to pay spousal support.

[11] There is no material dispute, if any, regarding each party’s employment history.

[12] Prior to marriage, the applicant was employed as an administration assistant and later she was a sales assistant after passing a securities course. The applicant worked with a number of firms in the financial industry. She ceased that employment when she moved to London in 1990 with the respondent, as he had obtained employment in that city.

[13] The respondent has had a successful career in the financial industry. He agrees with the applicant’s recitation of his work history. The respondent came to London in 1990 to work with RBC Dominion Securities. The respondent’s last employment was National Bank Financial (“National Bank”). The respondent does not dispute the applicant’s evidence that he was paid $1 million to move to National Bank with his book of business.

[14] After the applicant moved with the respondent to London in 1990, she worked in a store specializing in the sale of kitchenware. The applicant then opened her own business but later decided to close the business because it was not profitable. This occurred in 2000 when the applicant was pregnant with the parties’ youngest daughter, Charlotte.

[15] The parties agree that the applicant did not work outside the home after Charlotte was born.

[16] The parties have conflicting evidence regarding their intention as to whether the applicant should have secured employment outside the home after the children were older. The applicant’s position can be stated that the respondent encouraged the applicant to be a stay-at-home parent when they moved to London so that the respondent could concentrate on his business. The applicant describes her retail position as being only for a short time. She deposes that the closing of her business and not working outside the home thereafter was encouraged by the respondent.

[17] The respondent deposes that he encouraged the applicant to work outside the home many times but she refused. The respondent acknowledges that the applicant is “an excellent mother” and that she “did a wonderful job raising our children.” It is the respondent’s evidence that he and the applicant disagreed about whether the applicant should re-enter the workforce as the children grew older.

[18] This conflict in the evidence is an issue for trial. The important undisputed facts on the motion are that the applicant has not worked at all outside the home since 2000 and that, between 1990 and 2000, the applicant had minimal employment and self-employment; further the applicant has not worked in the financial sector since 1990.

[19] Although the parties separated in 2010, they agree that the respondent provided financially for the applicant and the children. There was no formal separation agreement dealing with either finances or custody and access matters.

[20] The respondent retired from National Bank on March 1, 2015, just prior to his 55th birthday. The applicant characterizes the retirement as abrupt. The respondent disagrees with this characterization. The circumstances of the respondent’s retirement are discussed later in these reasons.

[21] After the applicant commenced the current proceedings in November 2016, the parties made some progress in addressing issues during mediation in June 2018. This resulted in the parties agreeing on how the children would be supported. Also, an agreement was reached that the matrimonial home would be sold.

[22] Although the applicant was the sole registered owner of the matrimonial home, the applicant agreed to share the equity equally with the respondent, in effect treating the matrimonial home as a jointly-owned asset. The evidence on the motion suggests that this was beneficial to the respondent because the matrimonial home had increased appreciably in value subsequent to the parties’ separation in 2010.

[23] The matrimonial home was sold in October 2018 for $1.732 million. The net sale proceeds were just over $1 million and, by agreement, the respondent received $300,000, the applicant received $400,000 and the balance, being a sum of a little over $363,000, remains in trust pending resolution of the property issues.

[24] According to the applicant, at the June 2018 mediation, it was agreed that the respondent would pay interim spousal support of $10,500 starting June 1, 2018 on a without prejudice basis pending the next mediation date. However, no further mediation occurred.

[25] The parties were unable to agree on the wording of the draft interim separation agreement to deal with interim spousal support.

[26] For the period June 1, 2018 to the end of October 2018, the applicant does an accounting as to whether she had received the $10,500 monthly. The credits shown by the applicant include amounts that were charged to the respondent’s credit card and amounts that the applicant withdrew from the joint account.

[27] The applicant deposes that the respondent overpaid spousal support by $1,438.68 as at October 31, 2018.

[28] For his part, the respondent complains that the applicant breached the agreement almost immediately by charging his credit card and/or making withdrawals from the joint bank account in the amount of almost $30,000 in June 2018. The applicant agrees with this and she treats the excess over $10,500 as an over-payment.

[29] The respondent characterizes the arrangements to pay $10,500 as a temporary measure until the sale of the matrimonial home.

[30] There is no dispute that effective November 1, 2018 the respondent ceased paying any spousal support.

The Respondent’s Income Prior to Retirement on March 1, 2015

[31] Historically, the respondent’s income had two main components: commission income and capital gains. The respondent has produced an income tax brief for the years 2010 to 2017 inclusive. The applicant, in her material, has also included financial information previously received from the respondent for the years 2005 to 2008.

[32] Although the applicant deposed that no tax information was received for 2009, the respondent’s income tax brief, for the year 2011, has appended to it in spreadsheet form a comparative tax summary for the years 2007 to 2011, which includes tax information for the year 2009.

[33] The discussion below summarizes the respondent’s income from 2005 to 2014 inclusive, being all the years that income information is available prior to the year of retirement. It is noteworthy that the respondent’s capital gains during this period fluctuated significantly from year to year. In some years, capital losses were incurred. However, the allowable capital losses were applied to previous or subsequent taxable capital gains to reduce the taxable capital gains. For the years discussed in these reasons, a taxable capital gain was 50% of the actual capital gain and an allowable capital loss was 50% of the actual capital loss.

[34] Also of assistance is the history of capital loss carry forward included in the respondent’s income tax brief for 2017. This document sets out all taxable capital gains and allowable capital losses from 1991 to 2017.

[35] For the period 2005 to 2014, the respondent’s taxable capital gains, cumulatively, significantly exceeded his cumulative allowable capital losses. This demonstrates that the respondent was quite adept at generating significant capital gains during that period through trading in securities; the respondent derived also the significant benefit that 50% of his capital gains were tax-free.

[36] The table summary below shows the respondent’s income history. In each year except where otherwise noted, the amount shown for commissions is very close to the total employment income. Details as to taxable capital gains and allowable capital losses are included. Minor income amounts, generally consisting of dividends or interest and investment income, are not separately itemized.

Year 2014 2013 2012 2011 2010 2009 2008 [1] 2007 [2] 2006 [3] 2005 Line 150 $463,199 $169,801 $196,912 $472,618 $423,576 $484,961 $447,647 $813,600 unknown $1,472,913 Commissions $104,853 $168,384 $195,587 $469,469 $396,232 $482,615 $438,373 $468,744 unknown $940,545 Taxable Capital Gain $355,203 $1,642 $24,923 $91,925 $15,072 $533,563 Allowable Capital Loss $47,234 $35,122 $18,495 $13,871

[37] The respondent does have income expenses and carrying charges that are not detailed in the above table. However, where relevant, those expenses and charges are discussed below.

[38] Also noteworthy of comment is that between 1991 and 2003, the accumulated taxable capital gains exceeded all allowable capital losses.

[39] Then, for 2004, there was a significant taxable capital gain of $340,679. The capital loss carry forward schedule shows that no part of that taxable gain was adjusted by applying allowable capital losses from other years. Considering that the respondent had a taxable capital gain of $340,679, also means that he had an additional tax-free capital gain in the same amount.

The Respondent’s Retirement on March 1, 2015 and His Post-Retirement Income

[40] The respondent deposes that the financial planning business is “under serious pressure.” He cites the use of self-directed brokerage accounts where a low, flat transaction fee is paid as opposed to a percentage fee to the financial advisor.

[41] The respondent opines that the business model is unsustainable. He refers to his declining commissions from 2012 to 2014. The respondent also provides some further insight from his perspective as to changes within the financial industry that, in his view, did not justify his continued employment with National Bank. The respondent deposes at paragraph 32 that “I made the decision to retire in this context.”

[42] I do agree with the applicant’s concerns that none of the respondent’s analysis is corroborated by any credible independent evidence. The respondent agrees that, subsequent to separation, he inherited $1 million from his mother’s estate. Also, as discussed below in more detail, the respondent received a significant cash payout on his retirement.

[43] The respondent’s evidence explaining his decision to retire is bereft of any analysis or consideration by him as to whether retirement was appropriate given his outstanding support obligation to the applicant and the effect that his early retirement would have on the applicant.

[44] The respondent’s retirement was not precipitated by health or other reasons. There is no suggestion that he was incapable of working.

[45] Each party accuses the other of engaging in a lavish lifestyle. The respondent complains rather bitterly about the applicant’s profligate spending and the applicant in turn levies similar complaints about the respondent.

[46] On the basis of the motion material, the respondent’s decision to retire is not inconsistent with a personal desire simply not to work anymore. The respondent fails to address how he can avoid working in the future to support himself and/or the applicant given his evidence about his apparently rapidly diminishing capital.

[47] As a result of his retirement, the respondent received compensation from the National Bank in two forms – the deferred compensation plan (“DCP”) and a severance payment consisting of 30% of the commissions arising from his former clients’ transactions over the next 3 years, being 2016 to 2018 inclusive. The last severance payment was received in March 2018.

[48] The respondent explains that the DCP was meant to be retirement savings. The respondent’s bonuses, both during the marriage and after separation, were deposited into the DCP, along with additional deposits from the National Bank. The respondent does not explain how much was contributed by the National Bank.

[49] The DCP was required to be kept in National Bank stock and could not be cashed in until the date of retirement; afterwards, the stock had to be cashed in within two years. This was treated as income for tax purposes.

[50] The amount from the DCP paid to the respondent in 2015 totalled just over $1.226 million, having more than doubled in value in the approximate five years subsequent to the date of separation.

[51] The respondent also has provided tax disclosure from 2015 to 2017.

[52] In 2015, the respondent’s line 150 income was $1,251,390, with almost all of that being the DCP payment. The respondent’s tax return notes $411,365 (presumably, this is part of the DCP payment) as being commissions. The respondent questions whether this portion of the DCP payment is properly characterized as commissions. If this is relevant, it will have to be pursued at trial.

[53] In 2016, the respondent’s line 150 income was $171,382; this included $89,166 from commissions and $77,603 from RRSPs.

[54] In 2017, the respondent’s line 150 income was $75,775; that entire amount, except for a small nominal amount was commission income.

[55] For 2018, no tax information was provided by the respondent; however, he deposes that he received $65,413 in 2018 pursuant to the severance agreement.

[56] The respondent did incur some carrying charges for 2016 and 2017 as disclosed in his tax returns.

[57] The respondent does point out that he incurred allowable capital losses in 2015, 2016 and 2017 as he continued to trade securities post-retirement. He had the following allowable capital losses (being 50% of the actual capital loss for those years):

2015: $93,657 2016: $185,419 2017: $39,616

[58] The respondent focusses on the period 2012 to 2017 inclusive, where he had capital losses each year except for a substantial capital gain in 2014. During that period, on a net basis, the respondent incurred an overall capital loss in the range of a little over $90,000. The respondent points to this in paragraph 60 of his affidavit, concluding that he “cannot count on capital gains from trading.”

[59] However, as discussed earlier in these reasons, overall the respondent earned total capital gains that substantially exceeded total capital losses; for example, from 2002 to 2007 inclusive, the respondent had capital gains every year, with the total during that period being in the range of $2.2 million, half of which was tax-free.

[60] Given the respondent’s overall record, little weight can be placed on his assessment that he cannot count on capital gains from trading. The respondent, I find, is far too modest in the assessment of his own ability to make money trading in securities.

[61] I ascribe little or no weight to the respondent’s evidence pointing to the three year non-solicitation clause contained in his severance agreement with National Bank. The execution of the severance agreement, entirely, was a voluntary, unforced act of the respondent.

[62] Further, there is no evidence that subsequent to retirement the respondent displayed any interest in working at anything; nor is there any evidence that the respondent at any time post-retirement had searched for any employment, including employment commensurate with his notable skill set and expertise.

Imputation of Income – The Law

[63] The applicant relies, among other cases, on the often-cited decision of the Court of Appeal for Ontario in Drygala v. Pauli, 2002 CarswellOnt 3228 (Ont. C.A.). That case dealt with child support, and whether the payor parent was “intentionally under-employed or unemployed” within the meaning of s. 19(1)(a) of the Federal Child Support Guidelines (SOR/97-175) (“Guidelines”), in circumstances where the payor parent chose to attend university rather than work. The issue was whether income should be imputed to the payor pursuant to s. 19(1)(a).

[64] The following relevant principles follow from Drygala:

a) there is no “bad faith” requirement when considering whether a person is intentionally under-employed or unemployed within the meaning of s. 19(1)(a) of the Guidelines: paragraph 36;

b) section 19(1)(a) of the Guidelines is not an invitation for the court to select arbitrarily an amount to impute as income; there must be a rational basis underlining the selection of the amount to be imputed and it must be grounded in the evidence: paragraph 44; and

c) when imputing income, a court must consider what is reasonable in the circumstances; this includes a person’s age, education, expertise, skills, health and availability of job opportunities: paragraph 45.

[65] In Lawson v. Lawson, 2006 CarswellOnt 478 (Ont. C.A.), the Court of Appeal for Ontario stated the following at para. 36:

36 Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. See Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[66] In a similar vein, and more recently, the following was stated by the Court of Appeal for Ontario in Lavie v. Lavie, 2018 ONCA 10 (Ont. C.A.) in relation to s. 19(1)(a) of the Guidelines at para. 24:

24 This section was discussed by the Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.). The trial judge referred to Drygala v. Pauli and correctly observed that 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. He also noted that in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.

[67] Also relied on by the applicant is Bullock v. Bullock, 2004 CarswellOnt 919 (Ont. S.C.J.). The trial judge found that voluntary early retirement was not a “material change in circumstances” justifying a variation of spousal support. The trial judge stated, in part, at para. 13:

13 … In my view, voluntary retirement at age 62 is not a basis for finding a material change in circumstances. A support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and thereby avoid his or her spousal support payment obligations … [citations omitted]

[68] The foregoing extract from Bullock was quoted, in part, with approval in Rilli v. Rilli, 2006 CarswellOnt 6335 (Ont. S.C.J.), at para. 23.

[69] I include for completeness the provisions of s. 19(1)(a) of the Guidelines:

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;

[70] Although the case at bar deals with spousal support, the SSAG provide that the starting point for determination of income under the SSAG is the definition of income under the Guidelines: see Spousal Support Advisory Guidelines: the Revised User’s Guide, April 2016 (at page 18), prepared by Professor Carol Rogerson and Professor Rollie Thompson; and see also Rilli, supra, at para. 15.

[71] The principles governing the imputation of income for the purpose of child support are equally applicable to cases involving spousal support.

[72] There is nothing preventing the imputation of income on a motion for interim spousal support; see, for example, Lavigne v. Maule, 2012 ONSC 5442 (Ont. S.C.J.), relied on by the applicant, where income was imputed to the payor on a motion for interim child support. The same rationale would apply to a motion for interim spousal support.

Discussion

[73] The calculation of interim spousal support generally is not based on a fulsome record, as would be the case at trial. The court, necessarily, must make a decision confined to affidavit evidence, often without cross-examination, and where there is conflicting evidence.

[74] I adopt the helpful discussion by Vogelsang J. in King v. King, 2016 ONSC 5264 (Ont. S.C.J.), a case relied on by the respondent:

11. The proper amount of interim spousal support has been usually assessed by the application of some well-known principles. In Singh v. Singh, 2013 ONSC 6476 (Sup. Ct.), Price J. approved of the following statement of Lemon J. in Driscoll v. Driscoll, [2009] O.J. No. 5056 (Sup. Ct.):

14 The recent case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699, provides a helpful list of principles governing interim support motions:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[75] On the basis of the evidentiary record before the court on this motion, there can be no doubt that the respondent is intentionally unemployed within the meaning of s. 19(1)(a) of the Guidelines.

[76] No compelling reason was adduced by the respondent to justify early retirement in the face of his continuing obligation to support the applicant.

[77] While the respondent mustered an argument that since separation he has provided the applicant with sufficient financial support to discharge his spousal support obligation in full, together with calculations that in his view support his theory, the applicant disputes this evidence. This evidentiary conflict will need to await a trial; however, this does not preclude an order for interim spousal support.

[78] I find that it is appropriate to impute income to the respondent. I decline to impute income to the applicant on an interlocutory basis. This issue, too, will need to await trial where findings of fact can be made, given the conflicting evidence on this issue.

[79] Imputation of income, on the basis of the respondent having continued his employment at National Bank or other similar employment, is reasonable in the circumstances.

[80] I have considered the factors and objectives in ss. 15.2(4) and (6) of the Divorce Act. I have considered also the SSAG calculations provided by both counsel. I decline to accept the respondent’s SSAG calculations because they are based on a maximum income of $106,417, an amount that is very close to the respondent’s commission income in 2014, being the year prior to the year of his retirement.

[81] The applicant’s primary position, that she should receive $10,500 per month, appears based on the agreement reached at mediation. I decline to use that amount. The reality is there was no enforceable “deal” that that amount would be paid until trial.

[82] The evidence on the motion, taking into account also the respondent’s position, at most establishes that that amount was payable on a without prejudice basis pending sale of the matrimonial home.

[83] I find that a principled approach, grounded in the evidence, would be to impute income to the respondent by averaging his line 150 incomes for the years 2012 to 2014 inclusive, being the three years prior to the year of retirement. The foregoing approach would bring into income the respondent’s significant taxable capital gain of $355,203 in 2014. I find it is appropriate to consider all income because the respondent’s earning history included commissions and capital gains.

[84] In arriving at an imputed income for the respondent, I would not consider the allowable capital losses post-retirement in the years 2015 to 2017 because, had the respondent continued working fulltime, his historic pattern of income would suggest a reasonable prospect of future taxable capital gains that likely would exceed any previous allowable capital losses. Further, I find it is not appropriate to consider what the respondent did during retirement in arriving at an imputed income on the basis that the respondent did not retire.

[85] Based on the table summarizing the respondent’s income referred to earlier in these reasons, the respondent’s average line 150 income for the three years 2012 to 2014 is $276,637.

[86] It must be pointed out that this line 150 “averaging” process can be construed as somewhat generous to the respondent because, for 2014, only the taxable capital gain has been considered, rather than the entire capital gain as mandated by s. 6 of Schedule III. Further, the non-taxable portion of the actual capital gain could be subjected to gross-up as part of the income-imputation process: see s. 19(1)(h) of the Guidelines. In my view, however, it is reasonable in the circumstances to consider only the line 150 portion of capital gain in arriving at an appropriate amount of income to impute to the respondent until trial.

[87] It is also appropriate to consider for those years the average of the respondent’s carrying charges and employment expenses as shown in his tax returns: see Schedule III, ss. 1 and 8. The carrying charges average $7,881 [4] and the employment expenses average $20,680 [5]. These two combined averages total $28,561.

[88] This results in employment income of $248,076 ($276,637 - $28,561), which I round to $250,000.

[89] The closest SSAG calculation approach was the applicant’s SSAG calculation that averaged employment income for four years, being 2011 to 2014, less the average of employment expenses for those years. That calculation produced SSAG ranges of $5,399 - $6,299 - $7,199 (low – mid – high). Those calculations by the applicant ignored taxable capital gains but, by including the year 2011, a significant commission income of over $469,000 was included in the average.

[90] No attempt was made in any of the SSAG calculations by either party to include s. 7 expenses for the children.

[91] The eldest child, Robin, is attending a 12 month post-graduate college program which ends in May 2019. She resides on her own. The child, Charlotte, attends college outside of London.

[92] The applicant deposes it was agreed that the RESP registered in the applicant’s name would be used for both children, and that the respondent will pay for Robin’s tuition and living expenses for the one year.

[93] The applicant deposed further that the respondent sold Robin’s motor vehicle for $23,750 and that he used those sale proceeds plus $6,000 from an RESP account (to which the applicant’s mother contributed) to assist in funding Robin’s expenses.

[94] The applicant deposed that Charlotte is in a two-year program living in residence and that she has applied for OSAP; the applicant “understands” that Charlotte’s tuition was paid by Charlotte’s aunt, and that there is $12,000 in an RESP from contributions by the applicant’s mother.

[95] The applicant deposes that the respondent has agreed to pay any shortfall in Charlotte’s expenses.

[96] The respondent does not appear to quarrel with the main points of the applicant’s evidence regarding funding of the children’s expenses. The respondent adds that he has paid expenses for Robin that exceeded the RESP funds from the applicant’s mother and the car sale proceeds.

[97] According to the respondent, in 2018, Robin has charged just under $11,000 to his credit card and he has e-transferred $12,000 to her. No receipts or other proof was provided for these amounts. Regarding Charlotte, the respondent agrees that he is paying the difference in her education expenses, but no details are provided.

[98] Given the evidence, I am prepared to reduce the respondent’s income by $10,000 to allow at least some recognition of the s. 7 expenses that the respondent is paying. This estimate, if necessary, can be adjusted at trial and grossed up, if appropriate. There was no evidence that any Guideline table amounts are being paid.

[99] I impute $240,000 income to the respondent.

[100] Referring specifically to the applicant’s SSAG calculation discussed earlier, that calculation disclosed a table amount of child support for Charlotte during the summer months; however, in the SSAG calculation, the table amount of child support was overridden to zero, which is consistent with no table amount being paid. The result is that that SSAG calculation is identical to the “without child support” formula provided by the SSAG.

[101] Accordingly, for the case at bar, by analogy I find that it is appropriate to consider the SSAG without child support formula. [6]

[102] The gross income difference is $240,000; the length of cohabitation is 20.5 years, as used by both parties in their respective SSAG calculations. The resulting monthly spousal support for low – mid – high ranges is $6,150 - $7,175 - $8,200 [7].

[103] The applicant’s entitlement to spousal support is both needs-based and compensatory. The compensatory aspect of spousal support flows from the applicant’s child-rearing role during the marriage. Typically, entitlement to needs-based and compensatory spousal support will result in an award at the higher end of the SSAG range: see Gray v. Gray, 2014 ONCA 659 (Ont. C.A.), at para. 50.

[104] I find that $8,000 per month interim spousal support is reasonable. The overpayment to the extent admitted by the applicant should be deducted from the first payment. This does not preclude any argument by the respondent at trial that the overpayment should be higher. It is reasonable for the payments to commence November 1, 2018, being the date that the respondent ceased paying spousal support on a voluntary basis.

[105] The parties are encouraged to settle costs. The applicant was successful in obtaining an order for interim spousal support.

Order

[106] I make the following interim order:

1. The respondent shall pay interim spousal support to the applicant pursuant to the Divorce Act in the amount of $8,000 per month commencing November 1, 2018.
2. For the spousal support payment due November 1, 2018, the respondent shall be credited with the sum of $1,438.68 previously paid by him.
3. An order shall issue as asked in paragraph 3 of the applicant’s motion in relation to the beneficiary designation for the Manulife policy.
4. If the parties are unable to resolve costs, written costs submissions may be filed with the trial coordinator within 30 days, limited to 2 typed pages, double-spaced, plus copies of any offers, bill of costs, time dockets and authorities.

“Justice Victor Mitrow” Justice Victor Mitrow Date: April 16, 2019

Footnotes

[1] Note: for 2007, in the 2007 – 2011 comparative review spreadsheet, sources of income for line 150 are shown as employment income - $719,914; interest and investment income - $1,761; and taxable capital gains - $91,925. Although commissions are shown as comprising part of the employment income, there is no explanation as to what comprised the difference between employment income and commissions.

[2] Note: for 2006, the only known income information, other than the taxable capital gain, is the respondent’s taxable income in the amount of $592,199.

[3] Note: for 2005, the amount shown for commission income is the employment income; commissions not separately itemized; it is unclear whether all employment income was commission income.

[4] The respondent’s carrying charges for 2012, 2013 and 2014 respectively are $3,160 + $4,403 + $16,080 = $23,643 ÷ 3 = $7,881.

[5] The respondent’s employment expenses for 2012, 2013 and 2014 respectively are $23,103 + $24,206 + $14,730 = $62,039 ÷ 3 = $20,680.

[6] This SSAG without child support formula is: annual spousal support = gross income difference x years of cohabitation x the appropriate % factor. The percentage factors are 1.5% - 1.75% - 2%, which coincide with the low – mid – high SSAG ranges.

[7] low = $240,000 x 20.5 x .015 ÷ 12 = $6,150 mid = $240,000 x 20.5 x .0175 ÷ 12 = $7,175 high = $240,000 x 20.5 x .02 ÷ 12 = $8,200