Court File and Parties

KINGSTON COURT FILE NO.: 224/12 DATE: 20190425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carole McNeil, Applicant AND Roderick Dunne, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Danielle Russell, for the Applicant Michael D. Swindley, for the Respondent

HEARD: February 1, 2019

Endorsement on Motion to Change (by Respondent)

MINNEMA, J.

[1] This is a Motion to Change (“MTC”) an order dated August 26, 2013, brought by the respondent Roderick Dunne. He is seeking to reduce his spousal support obligation to zero as of July of 2017, and until his employment earnings increase. The applicant Carole McNeil’s main request is that the existing order continue at the same level based on an imputation of income.

Background Facts and Procedural History

[2] The parties separated on February 14, 2010. They disagree on exactly how long they cohabited, but agreed for the purposes of this hearing that it was for approximately 17 or 18 years and that little turns on the difference. Despite some contrary wording in the order, the parties never married. They have no children together.

[3] In terms of ages, when they began cohabiting the respondent was about 26 years old and the applicant was about 36. When they separated they were 44 and 53 respectively. As of the date of this hearing the respondent was 53 years old and the applicant was 62.

[4] The applicant provided evidence of the circumstances of the parties when together both as background and to address whether the support in the final order (which was based on Minutes of Settlement that were not in evidence) was compensatory or non-compensatory, given that it is silent on that point. She indicated that for the first five years of their relationship she supported the respondent while he completed a college computer engineering program and entered into a university program. He did not complete the latter because he accepted a full-time job in his field. Once the respondent completed his education, his salary working at various computer businesses began to eclipse hers, but she still worked full-time at Amaranth Stoneware as a potter, which was a minimum wage job, until August of 2008. She gave up that employment to relocate from Kingston to Ottawa with the respondent when he obtained a well-paying contract job that led to his eventual employment as a software developer for BlackBerry Limited. The applicant did not have further employment before the parties separated. She also said that she was responsible for the majority of domestic responsibilities throughout the relationship, but that evidence was disputed.

[5] Following the separation the parties became involved in litigation, and about three and a half years later they resolved their family law differences as reflected in the consent order of Justice Kershman dated August 26, 2013 (the “Order”). While it also included certain property terms, for this motion the salient provisions are as follows:

1. The Respondent, Roderick Dunne, shall continue to pay spousal support to the Applicant, Carole McNeil, in the amount of $3,000.00 per month plus $81.25 per month for her medical plan commencing September 1, 2013, based on the Respondent’s 2012 Notice of Assessment in the amount of $129,856.00 and an imputed income to the Applicant of $20,000.00 per year. On the first day of the month (“indexing date”) in each year, starting August 1, 2014, spousal support will increase by the indexing factor for the third month immediately before the indexing date in that year. For example, if the indexing date is April 1, the indexing factor applicable on April 1, 2007 will be the indexing factor for January 1, 2007.

2. No arrears of support are owing.

3. The Respondent shall designate the Applicant as beneficiary on a policy of life insurance in the amount of $800,000.00 for so long as he is obligated to pay support. Should the Respondent fail to have said life insurance upon his death, it shall become a first charge against his estate.

[6] Although the relationship was shorter than 20 years, the support duration was indefinite and the parties acknowledge that this was a “Rule of 65” case (see the Spousal Support Advisory Guidelines (“SSAGs”) at Chapter 7.5.3).

[7] The parties had bought a property in Ottawa, but kept their Kingston property. At some point following the separation the applicant moved back to Kingston and into that home. Title was transferred to her as part of the settlement and she continues to reside there. She has not re-partnered. At some point the respondent re-partnered with a Caitlin Troughton who lives in Montreal. The respondent indicated that during his “tenure at BlackBerry” he commuted between Montreal and Ottawa on Mondays and Fridays.

Events and Incomes after the Order to 2016

2013

[8] In 2013, the respondent’s Line 150 income per his Notice of Assessment was $145,528. There was no evidence of the applicant’s income for that year given its limited relevance. Following the separation the applicant was accepted back at her old job at Amaranth Stoneware as a potter, still at minimum wage, although it was unclear whether it was full-time. She received $36,000 in spousal support that year.

2014 (the year the applicant “retired”)

[9] In 2014, the respondent’s Line 150 income per his Notice of Assessment was $138,941.

[10] The applicant indicated that she had been suffering generally for years from arthritis in her hands and body. At some point in 2014 she fractured her left wrist in three places. There were no details regarding that incident. However, in evidence was a clinical report from an orthopaedic surgeon to the applicant’s family doctor dated October 30, 2014, indicating that the applicant had suffered a “distal radius fracture” that was treated five days previously by a closed reduction with the use of pins. The procedure appeared to have been successful, as the surgeon was hoping to remove the pins upon review in three weeks’ time.

[11] The applicant indicated that afterwards she attempted to return to work but that the pain she was experiencing from the injury and her pre-existing arthritis prevented her from continuing. In her words:

Eventually, I felt I could not continue working due to the pain I was experiencing and I chose to retire. I was 59 years old. Contributing to this decision were my mounting responsibilities to provide additional care and assistance to my ailing mother and support for my sister who is also in poor health.

[12] Per her Notice of Assessment, her income for 2014 was $42,174. This sheds some light on whether the applicant returned to her old job on a full-time basis. After the spousal support is backed out ($36,354.35 for that year) that leaves only about $6,000 of employment income, which seems low for full-time work if, as it appears, the wrist injury occurred in the fall. Neither party is seeking adjustments for this time period.

2015 (the year of the respondent’s termination from BlackBerry)

[13] There is no dispute that given various market indicators the longevity of the respondent’s employment with BlackBerry Limited was already a concern before the Order was signed. On November 17, 2015, just over three years later, his employment was indeed terminated. His job was “determined to be redundant” by his employer. He received a severance of $55,000. His Notice of Assessment for 2015 shows his Line 150 income as $159,678, which appears to include the severance.

[14] For the applicant, her 2015 Income Tax Return and Notice of Assessment indicate $3,322 in employment income suggesting that her decision to retire was put into effect that year. Along with the $37,967.29 that she received in spousal support, this resulted in a Line 150 income of $41,289 for 2015. Neither party is seeking an adjustment for this time period.

2016

[15] The respondent indicates that he made contact with what he called an employment “head-hunter”, namely CQ Search Group Ltd. It appears be a staffing firm that enters into contracts with employers for services, and then draws on a pool of people with special skills, like the respondent, to do the work as a subcontractor. There was no indication when CQ Search Group Ltd. was first contacted or otherwise how the arrangement came about, but it obtained subcontract work for the respondent with his previous employer BlackBerry Limited starting around June of 2016. The respondent was therefore self-employed working for and being paid by CQ Search Group Ltd. at $70 per hour, while rendering services at BlackBerry Limited (Ottawa). Per his Notice of Assessment, his Line 150 income for 2016 was $64,449.

[16] The respondent continued to pay indexed spousal support to the applicant, which was her only source of income in 2016. Her Income Tax Return and Notice of Assessment therefore show her total Line 150 income as $38,404. Neither party is seeking an adjustment for this time period.

Events Leading Up to this Motion

[17] The respondent’s subcontract work with BlackBerry ended in December of 2016. Some payment for that work was received later, in March of 2017, and is reflected as his only income for that year on his Income Tax Return as $7,800.

[18] The respondent indicates that he applied for “numerous” employment positions since then. However, the documentary evidence he provided in support of that assertion (emails and screenshots in his possession) was limited and confusing.

[19] He provided an email from Wayne Hill at CQ Search Group Ltd. dated June 13, 2017 at 12:07 p.m. which indicated that the respondent had applied for a “Software Developer” job in Montreal. The name of the prospective employer was not identified.

[20] About a half hour later, (June 13, 2017 at 12:28 p.m.) Wayne Hill sent the respondent an email with details of a position described as “Senior Software Developer C++” (the respondent’s resume shows that he knows C++) indicating “[t]ake a look and let me know your thoughts”. There is no indication who the prospective employer was and no evidence of a specific response or that the respondent applied for this position, unless it is the same position noted in one of the following two paragraphs.

[21] About 45 minutes later (June 13, 2017 at 1:15 p.m.) the respondent applied through what appears to be a website “brassring.com” for a “Princ SW Development” position at an entity identified only as “Avid”.

[22] Starting the next day on June 14, 2017, the respondent was involved in a series of email communications with a business BroadSign International which had an opening for a “C++ Developer”. He applied for the job, was interviewed on June 28, 2018, but was notified on July 7, 2017 that “after much deliberation” he was not successful. This position was in Montreal, and as noted could have been the same position referred to in paragraph 20 above.

[23] At some point, the respondent used the job website “indeed.com” and applied for a “Sr. Java Developer” position at a business called SysMind in Montreal.

[24] In summary, at best it appears that the respondent applied for four jobs. There is no evidence as to the salary ranges for the positions. Further, as the applicant points out, these applications appear to have all been made at about the same time, perhaps spanning only a couple of days, and limited to Montreal, Quebec.

[25] About one week after the above noted job applications, but before the respondent had received the email indicating that he did not get the BroadSign position, his lawyer delivered a letter to the applicant dated June 21, 2017, advising of his unemployment, seeking to engage in negotiations, but indicating that there would be no more support payments forthcoming after July 1, 2017, in about 10 days. In this MTC the respondent is seeking to have his support payments end as of that date.

[26] The applicant retained counsel who sent a letter to the respondent’s lawyer on July 12, 2017, indicating that the lack of notice to terminate support was “profoundly inconsiderate of the financial crisis this will create” as the applicant “was a potter by trade and could no longer work due to arthritis in her hands.” The lawyer requested some continued payment, even if at a reduced level. The letter had no impact, and the respondent made no further support payments, reduced or otherwise. The applicant subsequently filed the Order for enforcement with the Family Responsibility Office (“FRO”).

[27] There is no dispute that the respondent paid support per the order up until and including June of 2017 which, with interim support, covered a period of about 7 years and 4 months since the date of separation. With indexing, the support when it stopped was $3,228 per month. On January 11, 2018, the respondent allowed the life insurance policy that he was required to maintain under the Order to lapse. Eventually, on April 24, 2018, he issued this MTC.

Subsequent Events and Litigation

[28] The MTC and supporting materials were served on the applicant on June 6, 2018, about a year after support payments ceased. The applicant filed her Response to Motion to Change (“RTMTC”) and supporting materials. A case conference was held at which time disclosure orders were made, leave was granted for questioning (which did not take place), and the matter was adjourned for this half-day hearing on affidavit evidence, leaving counsel to work out the litigation schedule. The additional evidence since the cessation of support payments was primarily related to the means of the parties and their ability and efforts (or lack of effort) to find employment.

Efforts to Find Work/Current Incomes

[29] While what follows refers to the parties’ respective evidence regarding their incomes, I defer my final findings on current incomes to the subheading ‘Summary – Incomes’ below following the analysis relating to imputation.

Respondent

[30] Although he had worked in Ottawa for years and commuted from Montreal, the respondent’s efforts to find work were limited to only Montreal. This is despite his view that his lack of proficiency in French would be a problem. This is also despite his reliance on a salary comparison printout from “glassdoor.com” (which appears to be an online employment website) that purports to show that software developers in Montreal make $73,100 to $77,100 as compared to $130,000 in the Ottawa area. He argued that his choice to live and work in Montreal will make it very difficult for him to obtain new employment in his field, and that even if he does it will be for far less than the amount on which the Order was based.

[31] The respondent stated that “[w]hen my efforts to re-employ did not result in finding new employment, I turned to the assistance of Emploi Quebec.” It should be remembered that the totality of those previous efforts in evidence were the 4 applications he made in June of 2017. That was well over a year before he registered with Emploi Quebec on September 24, 2018. According to the respondent, Emploi Quebec is only for emergency and low-to-no-qualification jobs. He said was advised to, in a sense, ‘dumb-down’ his resume to try to appear younger with fewer skills to potential employees. While it is hearsay, he claims he was told there that even for those jobs his lack of French would be problematic. He indicated that he was sent by the agency to enroll in “French for Jobs” at Yes Montreal, passed the entrance requirements, and was given advice about how to pursue bursaries/scholarships. However, there was no evidence that he otherwise pursued French language training.

[32] The respondent indicated that his “overall employment strategy paid off” and he obtained a job with Lufa Farms in Montreal as a Warehouse Packer, earning minimum wage ($12/hour) plus a $0.75/hour night-shift premium. He indicates that his salary will therefore be $26,520 per year. He started this job on December 20, 2018, about 6 weeks before this hearing.

Applicant

[33] The applicant has provided two updates from her family doctor. A letter dated June 20, 2018, “To whom it may concern”, noted that the fracture of her wrist left her with pain with everyday use. The doctor indicated a “longstanding” diagnosis of arthritis in her hands and feet that also causes pain with everyday use and “limits her function.” She noted the applicant’s treatments, which appear to have been only over-the-counter remedies, and said that “mostly she just suffers through it.” The doctor indicated “[w]e’re just starting some investigations now” and ended:

In the longterm, Carole quit her last job on account of pain related to these issues in Dec, 2016. She does not feel she can take on any additional work related to use of her hands, above and beyond re regular daily living, on account of pain.

[34] In an Addendum to the above letter two weeks later on July 4, 2018, the doctor repeated much from the original but added that the applicant had a history of “decades” of swollen and painful feet which she diagnosed as moderate to severe inflammatory arthritis. She said that any use by the applicant of her hands or feet would be potentially painful, particularly during a flare of inflammation. She noted that she had referred the applicant to a rheumatologist for October 3, 2018, and had asked him if he would recommend “intro-articular corticosteroid injections” for pain relief.

[35] The applicant’s affidavit was sworn some 6 months after those notes, and provided no evidence related to any follow-up treatment. There is no evidence that the applicant had applied or qualified for disability.

[36] The applicant indicates that in July of 2018 she went to a Kingston employment centre, and in August went to another one, as she desperately needed income. She obtained a position starting in on September 25, 2018, with a business called “Sewhelpful”, which by its name seems to be a sewing business. She indicated it required significant use of her hands. She said she worked through the pain and accepted all hours that were offered to her, but was laid off around the end of December 2018, when the employer ran into difficulties with the Canada Revenue Agency (“CRA”). She was hopeful of being rehired in the new year. The applicant earned $3,317.91 from this position, which was her total income for 2018. As it was earned over roughly three months, extrapolated to a yearly salary it would be about $13,000. She said that she still has significant responsibilities looking after her sister who requires day-to-day care.

[37] The applicant has made further employment inquiries, and as of the hearing she was exploring a possibility that she could be rehired at her old employer Amaranth Stoneware part-time as a teacher. It would be minimum wage, and she suggested it would only earn her about $13,000 per year.

Means/Assets

Respondent

[38] The Order dealt with their family assets. The respondent kept the bulk of the net proceeds from the sale of their Ottawa property or $87,750. He provided a copy of his Financial Statement sworn July 18, 2012, before the Order, which indicated that other than the real properties and associated secured debt (which were divided in the Order), he had approximately $20,000 of savings at that time.

[39] As for currently, the respondent’s Financial Statement shows a net worth of about zero save and except for some minor chattels, after backing out the spousal support owed. It begs the question where his assets on settlement (at least $107,750) went given his subsequent substantial earnings at BlackBerry. His explanation was that most of it was expended to pay the ongoing spousal support and his living costs. However, on May 12, 2014, he transferred $50,000 to his partner for a “loan repayment”. There was no evidence of any corresponding loan or what the money was used for. When I asked, the respondent’s counsel simply said that it was a loan repayment, no questioning took place, and it was therefore not challenged. The applicant’s counsel, to the contrary, said particulars were requested but not provided. Again, it is not clear when the respondent started a relationship with Ms. Troughton, but his Financial Statement dated July 18, 2012 purporting to show his assets as the date of the Order did not disclose this alleged loan. In view of the above, the applicant has alleged that respondent has been hiding money to defeat the spousal support obligation, including using an offshore bank account that has not been disclosed, which the respondent says she has failed to prove.

[40] The respondent’s Financial Statement (which predates Lufa Farms) also shows no income but living expenses of approximately $24,000 per year. The ‘Schedule B – Other Income Earners in the Home’ attached to that Financial Statement is incomplete. While it shows that his partner contributes $3,000 per month towards the household expenses, it does not say where she works or how much she earns.

[41] The respondent has recently completed his tax filings or re-filings for past years to include his spousal support deduction. CRA issued a $17,585.42 refund which has been garnished by FRO.

Applicant

[42] There is no evidence as to what the applicant’s net worth would have been in 2013. Per the Order, she kept the Kingston house, took over the associated secured Line of Credit, and received a sum of $40,000 from the proceeds from the sale of the Ottawa property. She has been able to hold on to the Kingston property, although it is in need of repair. When you take out the spousal support owed, her current net worth is about $184,600, which is essentially her equity in the home (about $120,000), a RRSP (about $55,000) and a TFSA (about $14,000).

[43] As noted the applicant has no current income, and her expenses are listed as about $25,000 per year, which includes a $620 per month mortgage payment. She indicates that she has been meeting her expenses by a combination of drawing on her savings, taking personal loans from friends and family, and relying on neighbourhood charity and donations.

Issues and Positions

[44] Both parties have recreated SSAG calculations to mirror the situation at the time of the Order. They show that the spousal support quantum was set in the mid-to-high range -- their numbers differ slightly due to the dispute over the length of cohabitation. As noted the respondent seeks to have support set at zero from July 2017 to date. Going forward he seeks to have the current spousal support set based on the net disposable income (“NDI”) split reflected in those SSAG calculations being roughly 60 percent to him and 40 percent to the applicant. He maintains that her income should still be imputed at $20,000 per year and therefore, with his actual income at $26,500 until a change, the net effect would be an ongoing spousal support order of zero. He also seeks provisions allowing for a review of the new order upon changes in circumstances claiming that it is his hope that his current minimum wage job is only temporary, although there is no evidence of him looking for other work.

[45] The applicant concedes there has been a material change in both parties’ circumstances, but submits that income needs to be imputed to the respondent at the previous level and therefore the changes do not warrant a variation of the Order. In the alternative, she submits that if a variation is warranted, then income should still be imputed to the respondent and the previous imputation to her of $20,000 per year is no longer valid, the result being increased spousal support.

[46] As can be seen and as acknowledged by both parties, this is primarily a case about imputation. The respondent maintains that the applicant has failed to meet the test for imputing income to him. He argues that he has made reasonable and continuing efforts to obtain employment and as such she has failed to prove that he is or was intentionally under-employed or unemployed. He further argues that even if the court were to find to the contrary, it cannot impute any income to him regardless because the applicant has also failed to establish by way of reliable evidence what the imputed amount should be. With respect to the applicant’s income, the respondent maintains that she did not properly plead that the amount of $20,000 per year in the Order should be, in a sense, ‘un-imputed’, and therefore it must stand. The applicant essentially takes the opposite position on all these issues.

Law and Analysis – Incomes and Imputation

Law

[47] The SSAGs specifically apply to variation and review ( SSAG: Revised Users Guide, Ch. 13(b)), and are income based. The starting point for the determination of income under the SSAGs is the definition of income under either the Federal or provincial Child Support Guidelines ( Halliwell v. Halliwell, 2017 ONCA 349). Section 19(1)(a) of the Child Support Guidelines (Ontario), O.Reg. 391/97 (“CSG”) as amended, reads as follows:

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

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child of the marriage or any child or by the reasonable educational or health needs of the parent or spouse;

[48] The caselaw is clear that this is a three part test reflected by the following subheadings: see the leading case of Drygala v. Pauli, at paragraph 23. Good recent summaries of the factors to be considered and the steps in the analysis are set out in Tillmans v. Tillmans, 2014 ONSC 6773, Pey v. Pey, 2016 ONSC 1994, and Oyewole v. Adepoju, 2019 ONCJ 111.

Intentional Under-employment or Unemployment

[49] The first part of the test is establishing whether the spouse is intentionally under-employed or unemployed. As a general rule, a payor cannot avoid a support obligation by a self-imposed reduction of income (Drygala at paragraph 38). Choosing to earn less than one is capable of earning is intentional under-employment (Drygala at paragraph 28).

[50] The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63). Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), , 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, at paragraphs 88 to 91). As noted in Pey, not all career decisions which result in reduced income will be unreasonable.

Listed Exceptions: Needs of Any Child, Educational or Health Needs

[51] If there is a finding of intentional under-employment or unemployment, and if applicable, the under-employed or unemployed spouse has the burden of establishing that the decision was required by (1) the needs of any child of the marriage or any child, or by his or her reasonable (2) educational needs or (3) health needs.

Amount of Income Appropriately Imputed

[52] If there is unjustified intentional under-employment or unemployment, the last step is to determine what if any income is appropriately imputed in the circumstances. The onus is on the spouse claiming imputation to establish the evidentiary foundation for the amount sought to be imputed (see Berta above). There must be a rational basis underlying the selection of an amount (Drygala at paragraph 44). Drygala sets out considerations at paragraph 45:

45. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[53] Importantly, as noted in paragraph 46 of that decision as well as in Lawson v. Lawson (2006), , 81 O.R. (3d) 321 (Ont. C.A.) at paragraph 38, the amount of imputed income can also be based on the payor’s previous earning history, applying an appropriate percentage. There are numerous examples of this in the jurisprudence: see Olah v. Olah (2000), , 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien (2001), ; Vitagliano v. Di Stavolo (2001), , 17 R.F.L. (5th) 194 (Ont. S.C.); Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047; Thompson v. Gilchrist, 2012 ONSC 4137; Stoyko v. Delorome, 2013 ONSC 4232; Walts v. Walts, 2016 ONSC 4777; and Woodenfren v. Woodenfren, 2018 ONSC 4583.

Analysis: Was and/or Is the Respondent Under-Employed or Unemployed?

[54] There was no suggestion that the respondent’s job loss at BlackBerry was in any way intentional. While the six month gap from that job ending until his starting to work as a subcontractor for CQ Search Group Ltd. is unexplained in the sense of other efforts made by him or that agency during that time period, the respondent received a severance payment which would have carried him to the start of his contract work. As noted he is not claiming any variation or adjustment for that period.

[55] After December of 2016, when the work as a subcontractor ended, the respondent made no applications in his field for six months. He then made at the most four applications possibly over only several days, limited to Montreal where his partner lives, despite acknowledging language barriers and that jobs elsewhere (i.e. Ottawa) pay substantially more. He obtained one interview, but suspiciously even before learning whether it was successful he advised the applicant in writing that he was unemployed and that spousal support would be ending. After that he did not search for further employment for 15 months, and when he did it was only for unskilled work. Shortly before this hearing he accepted a manual labour minimum wage job that would foreclose a spousal support payment. There was no evidence that he pursued upgrading or attempted to stay current in his field.

[56] In my view there is an evidentiary basis to support the finding that the respondent was intentionally unemployed from January 2017 until December 2018 and is currently under-employed. Simply put, his employment searches have been inadequate. Further, there is no evidence that his failure to find meaningful work or to diligently pursue employment was justified in a compelling way or reasonable.

[57] I am not swayed by the caselaw relied on by the respondent to counter the above conclusions. Indeed, I am hard pressed to find anything in those cases that assists him.

[58] While he put forward Walsh v. Walsh, , [2006] O.J. No. 2480 (SCJ) to support a contention that the applicant had not done enough herself to become self-sufficient, Justice Quigley in that case noted at paragraph 41 that where a spouse has chosen not to return to a career for which he or she is professionally qualified, the other spouse should not be required to pay for those financial choices.

[59] The respondent cited the case of Rivas v. Espinosa, 2012 ONSC 4792, suggesting that I should take judicial notice of the comments there that the support payor would have trouble competing with younger recent college and university graduates in the field of telecommunications. That decision does not indicate how old the support payor was. Regardless, it is distinguishable on many points, and I note the most obvious. First, I am not able to conclude that the field of “mobile phone technology” is the same as the respondent’s field of software development. If anything, the former seems to be more narrowly focused. Second, the payor in that case was prepared to move anywhere to pursue employment, and had even secured a job in California that the support recipient thwarted. The respondent here has chosen not look for a job anywhere beyond Montreal. Third, in Rivas the support payor sent out 400 resumes in his field in the five months between losing his job and the motion. The court found that was “a bona fide attempt to get suitable employment.” The respondent’s four applications in two years is not a similar bona fide attempt.

[60] The respondent relies heavily on the decision in Edgar v. Sikora, . Mr. Edgar had custody of two children and had been paying spousal support to the mother while not receiving any child support from her. In April of 2003 he lost his $90,000 per year job in the “high technology sector”, and received 10 weeks of severance pay which took him to June 10, 2003. He began to receive Employment Insurance of about $900 per month and then on March 1, 2014, just before the hearing, secured a contract position paying $3,000 per month. It was with a company that needed assistance through a difficult time, and had prospects of long-term and more remunerative employment. The payor indicated that he accepted that position as, without any child support from the mother, it would enable him to put food on the table for the children. Justice Corbett found that Mr. Edgar was proactive about informing the mother of his circumstances, and had taken diligent and timely steps to bring the matter before the court when an agreement could not be reached. He terminated the support for the 8 to 9 months from the severance pay ending to the start of the contract in view of the father’s financial responsibilities for the children and the fact that he was receiving no child support from the mother. He also suspended ongoing spousal support finding that on $36,000 a year Mr. Edgar could not afford to pay it while supporting the entire child care costs. However, in explaining his reasons for refusing to terminate spousal support permanently, Justice Corbett noted that the payor had “a substantially greater earning capacity” and that it was hoped that he will once again earn an income comparable to before.

[61] There was a “clean hands” aspect to that decision. Emphasis was given to the fact that the support payor kept the payee informed and brought the matter to court responsibly and with reasonable diligence. I note that the respondent here only gave the applicant 10 days’ notice that support was ending, and served his MTC about a year later.

[62] There was little indication what Mr. Edgar did for work or his efforts to find re-employment. He appeared to have a skill set, as it was noted that he was going “assist” the new employer and had a substantial greater earning capacity, but there was no indication Mr. Edgar was a software developer. As to the market conditions, all that was noted that he was downsized during “one of the restructurings within the high technology sector over the past several years.” That was about 15 years ago. It does not speak to market conditions today, nor does it speak to the opportunities for software developers today. Lastly, there was no reference made to the number of applications Mr. Edgar may have put out, or where he directed them. With children in his care, he may have had a valid reason to limit the area of his search. In summary, I am not convinced that Edgar is as close to the facts of this case as the respondent asserts.

[63] Tillmans v. Tillmans, as already noted, is a decision that sets out a very comprehensive summary of many aspects of the law related to imputation. Justice Pazaratz at paragraph 81 reiterated the comment from Drygala that all the considerations have a common theme of reasonableness. There the payor was a 39 year old unskilled union labourer who worked in a factory until it closed. He was found to have made good faith efforts in preparing and submitting resumes to potential employers (about 100), and almost immediately afterwards decided to pursue an apprenticeship as a plumber. As the court found, that was reasonable given the financial realities and his long-term financial responsibilities. He was not intentionally under-employed or unemployed, and no income was imputed to him.

[64] The facts in Tillmans are quite different than the case before me, and it is not just the number of applications. There was no evidence here that the respondent needed to upgrade, and, even if he did, again there was no evidence that he pursued upgrading or attempted to stay current in his field. With the exception of a period of several days in Montreal in June of 2017, there is no evidence that there are no jobs available for an experienced software developer. Tillmans was relied on by the respondent notwithstanding that several relevant excerpts are quite harmful to his case:

1. “Sometimes imputing income can be relatively straight forward – where for example the laid off worker makes little to no sincere effort toward income replacement” (paragraph 2).

2. “The court must consider many factors including … the amount of income the payor could reasonably earn if they worked to capacity” (paragraph 67).

3. “Where the payor claims they have simply been unable to find employment, the absence of evidence of reasonable job search efforts will usually cause the court to conclude the payor is intentionally underemployed or unemployed” (paragraph 70).

4. “Income may be imputed where … [a payor] is content or resigned to continue to receive minimal income because he or she has been able to reduce living expenses; and where … [he or she] elects to languish in underemployment because his or her needs are being otherwise met by receiving support from another family member or a new partner” (paragraph 75).

[65] In Lepine v. Lepine, 2012 ONSC 4153, the husband worked in the “information technology field”, although the decision does not say what he did (i.e. whether he was a software developer). He had contract work with a single large company that he lost in 2008 when his income was about $138,000. He then found new employment with Hewlett-Packard but switched jobs to Channel Assist during the trial. He was expecting to make $90,000 per year at the new job, being $80,000 plus sales commissions. There was no indication what he was making at Hewlett-Packard. The wife wanted a higher income imputed to him. The respondent relies on the following passage at paragraph 9:

9. I reject the applicant’s assertions that the respondent is deliberately under-employed, and that, therefore, I should impute an income to him higher than the $90,000.00 he is prepared to concede. The imputation of income requires some evidentiary basis. Mere skepticism is not enough. I am prepared to pay judicial notice to the fact that we are presently in the midst of a recession, and that the information technology field has been particularly troubled. There is no evidence of the respondent having turned down more lucrative job offers or of his not working full-time. While his base salary at Channel Assist is less than it was at Hewlett-Packard, I do not accept that his switching jobs constitutes proof that he has undertaken a conscious effort to earn less in order to reduce exposure to support obligations.

[66] There is little in that case to assist the respondent in my view. How much less (if any) the husband was expected to earn in switching jobs from Hewlett-Packard to Channel Assist is unclear. While the court was not prepared to find under-employment based on the husband earning less than in the three previous years, it gave reasons. It was prepared to take judicial notice of a recession at the time. I am not. It observed that the information technology sector at that time was “troubled”. That was eight years ago, and notwithstanding that trouble the husband was still able to find jobs in his field and was never unemployed.

[67] Lastly, in Krause v. Zadow, 2014 ONCJ 475, the 52 year old husband’s income from his job in the insurance industry kept decreasing from $135,000 in 2009, the year of their separation agreement, to $90,000 by 2010. It remained at that approximate level until he was terminated in 2013 through no fault of his own (paragraph 55). He applied to 19 positions that he found by using the Workopolis website, websites of the various insurances companies, and mainly by networking with people in the industry. He indicated that it was difficult because he had a specialized area of expertise. A little over a year later he obtained a job that paid him $72,000 per year. The wife wanted to impute income to him at $100,000 per year. Her only evidence was job postings that did not show salary ranges or exact job specifications. She agreed that she had assumed that there were many jobs available but did not know the hire rate. The court held that there was no evidentiary basis to support $100,000 per year, and that it would be pure speculation to impute any higher income. It concluded,

62. In summary, I find that the father lost his job through no fault of his own. He has not ignored any job opportunities and he diligently attempted to find employment. I find that based on his age, particularized experience and the length of time he was unemployed that he acted responsibly in accepting the only job available to him.

[68] Krause, like Lepine before it, was a very different case than the one before me. Both stand for the proposition that a court would be hard pressed to impute a higher income to a payor who, following a loss of employment and after a diligent search, found a new job in his or her field that paid less than the previous one. To do so would require clear evidence that better job opportunities were ignored or turned down. The respondent’s efforts here do not come close to matching the efforts of the support payors in those cases. Again, the absence of evidence of a reasonable job search in his field or of other evidence to justify the lack of gainful employment, leads me to the conclusion that the respondent was intentionally unemployed and is currently intentionally under-employed. In a sense he has chosen to be a dependant of his current partner. Her income is unknown, but his expenses when he had no income and claimed to have no assets appear to have been met only by her. While the respondent’s obligation to seek out reasonable employment opportunities makes the need for a finding of evasion or bad faith unnecessary (Tillmans at paragraphs 54 and 57), the unexplained $50,000 transfer to his partner when viewed alongside the lack of continuous efforts to find lucrative employment certainly raises suspicions of a design to defeat the spousal support obligation.

Analysis: Was and/or Is the Respondent’s Under-Employment or Unemployment Required by Child Care, Education, or Health?

[69] Moving along in the Drygala analysis, I turn now to the second part of the test. As noted, there is no suggestion that the intentional under-employment or unemployment was required by virtue of the respondent’s further education. There are no child care needs in this case. The respondent’s health was not raised as an issue.

Analysis: What Income Should Properly Be Imputed to the Respondent?

[70] Given my finding of unjustified intentional under-employment and unemployment, the last question is what income is appropriately imputed to the respondent in all the circumstances. There is no dispute about the test which is noted above and stated in full at paragraph 44 of Drygala:

44. Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[71] The respondent’s core argument in this proceeding was that cases like Lepine and Krause stand for the general proposition that unless the respondent in her evidence can point to an available job or jobs that meet his qualifications and set out the remuneration, she will have failed to meet her onus of proving what income, and in particular what higher than minimum wage income, should be imputed to him. I am not convinced that is correct for two reasons.

[72] First, there is a line of cases holding that once the party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking: see Oyewolfe at paragraph 36. The reason, per Lo v. Lo, 2011 ONSC 7663 at paragraph 57, is that,

[t]he information which can be used or obtained to properly determine the income of that person is in his or her hands and no one else’s. To expect the person seeking imputation of income to bear the entire onus of proving imputation of income would thrust an unfair burden of proof on him or her as they do not have in their possession the information necessary to satisfy that onus; only the putative support payor does.

[73] Indeed, it would be rare for a litigant in this court with the applicant’s limited resources to marshal the evidence the respondent maintains is required to satisfy the test, up to an expert’s report. It would be unfair to allow the respondent to sit back, do nothing, and simply rely on the onus to defeat the imputation claim and therefore his spousal support obligation. The applicant is not his employment agency. I would add that in both Lepine and Krause evidence was in fact available to defend both support payors’ current income positions, unlike here.

[74] Second, and more importantly, even if he were correct about the onus, the threshold is not nearly as high as the respondent asserts. He is ignoring the line of cases referred to in paragraph 53 above. Simply put, evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test. There is evidence before me of the respondent’s earning capacity as a software developer, which I summarize as follows:

1. The August 26, 2013 order was based on $130,000 per year which was his 2012 income.

2. He made $145,528 in 2013, and $138,799.94 in 2014.

3. He made $159,487.09 in 2015, but that included his severance, and he made $64,350 in 2016 with $7,800 of his work in that year received and claimed in the following taxation year. Even including the 6 months of unemployment when he had zero earnings, he averaged about $116,000 between 2015 and 2016.

4. He was paid $70 per hour as a contract software developer which, if working to full capacity at between 35 to 40 hours a week, would translate near the low end to about $130,000 per year.

[75] I find that the respondent’s previous earnings provide a rational basis for imputing income to him at $130,000 per year. In support of that finding there is also his own evidence that jobs in his field in Ottawa make $130,000 per year, that he commuted to Ottawa before, and that he has not looked for employment there.

Imputation to the Applicant

[76] As noted the applicant argued that while she is content with the existing amount of support (which was based on income imputed to her at $20,000), if there is any variation at all then her income should be set at zero. She did not respond in a convincing way to the applicant’s argument that she had failed to plead that position. Regardless, her zero income argument ignores her own evidence of recent earnings and of earning potential in the $13,000 per year range. Further, it ignores factors that point to her own intentional unemployment and under-employment, such as her choice to “retire” at age 59, her choice to essentially work at assisting family members rather than seeking similar remunerative employment, her choice to endure arthritis pain rather than avail herself of more intrusive treatments that might ameliorate it, and her demonstrated ability to work notwithstanding her discomfort.

[77] I am not convinced on the limited evidence before me that the applicant has justified her unemployment or past under-employment -- she is not physically unable to work and she has not made continuous reasonable efforts to contribute to her own support. Having said that, given her age, limited work experience, and limited skill set, her prospects for lucrative employment are not great. Indeed, when pushed by desperation to re-enter the job market, the job she found did not pay particularly well.

[78] Looking at the Drygala test, in my view the evidence supports a finding that the applicant is and was unjustifiably intentionally under-employed and unemployed. However, the only rational basis for an amount to be imputed is the current Order, as the evidence does not establish that she can earn more, or that she can only earn less. There is no material change. On a full review of the positions of both parties and how they developed and pursued them, this conclusion seems to have been for the most part expected.

Summary - Incomes

[79] In view of the above, I find that the annual incomes of the applicant and respondent from 2017 forward, both imputed, are $20,000 and $130,000 respectively.

The Law – Variation of Spousal Support

[80] As the parties were not married, variation of spousal support is governed by the Family Law Act, R.S.O. 1990, c.F.3, as amended. Per subsection 37(2), before the court can make a variation order it must be satisfied that there has been a “material change” in circumstances. Once that test has been met, as suggested in subsection 37(2)(c) and agreed by the parties per their facta, subsections 33(8) (Purposes of Order for Support of Spouse) and 33(9) (Determination of Amount) apply. As noted in Halliday v. Halliday, , [1997] O.J. No. 5241 (C.A.), decisions under the Divorce Act relating to spousal support provide useful guides and therefore should also be considered. Indeed, both parties relied on Divorce Act principles and caselaw.

[81] Section 33(8) noted above deals with the purposes or objectives of an order for spousal support, and reads as follows:

33(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[82] As an overview, the approach to be taken was set out by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, at paragraph 50. Once a material change in circumstances has been established, the variation order should properly reflect the objectives set out above, and take into account the material changes in circumstances. A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support.

Change in Circumstances

[83] The applicant conceded a material change in circumstances.

Analysis of the Section 38(3) Objectives

[84] Looking at the section 38(3) objectives, they are very similar to the four Divorce Act section 17(7) objectives which have been viewed as an attempt to achieve an equitable sharing of the economic consequences of the spousal relationship and its breakdown: see Moge v. Moge, , [1992] 3 S.C.R. 813 at paragraph 78, and Hickey v. Hickey, , [1999] 2 S.C.R. 518 at paragraph 21. Family law can only play a limited role in alleviating those economic consequences (Moge v. Moge at paragraph 76). No one objective has greater weight or importance than another (L.M.P. v. L.S. at paragraph 49).

Contribution to the Relationship and Economic Consequences

[85] The concept of economic consequences is the foundation for the principles of compensatory support: Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 at paragraph 43 (see also Hickey v. Hickey at paragraph 22). As noted in Moge v. Moge, the most significant consequence of a relationship breakdown usually arises from the birth of children (paragraph 81). However, that decision goes on to clarify (at paragraph 83) that families need not fall strictly within a particular marriage (or relationship) model in order for one spouse to suffer disadvantages, and they could arise in childless unions. Indeed, Fisher v. Fisher is one such example, and under this objective it held that the parties had formed a relationship of financial interdependence (paragraph 44).

[86] While this is not the strongest of compensatory support cases given that the parties did not have children, in my view there can be little doubt that the Order had compensatory elements. The applicant supported the respondent through his education and moved to Ottawa to follow his career. The SSAG calculation at the time reflected this, being at the higher end of the range.

Equitable Sharing of the Economic Burden of Child Support

[87] With no children of the relationship, this consideration does not apply.

Make Fair Provision to Assist the Applicant to Contribute to Her Own Support

[88] As noted, the respondent has been paying spousal support (including the interim period) for 7 years and 4 months, which is less than half the length of their roughly 17 or 18 years of cohabitation. The respondent did not argue a lack of entitlement. Self-sufficiency must be seen in the context of the standard of living previously enjoyed by the parties (Allaire v. Allaire, at paragraph 21). Even at the income imputed to her, the applicant is far from being self-sufficient.

Relief of Financial Hardship

[89] This consideration is generally not one of only basic need, but also of the economic hardship related to the marital standard of living (SSAGs at Chapter 7.2, 8th paragraph). The findings above indicate that there has been very little change to the parties’ incomes. The respondent claims he has no assets, but he has put himself into that position. The applicant cannot sustain herself on what she earns or is imputed to earn.

Summary/Conclusions

[90] The law referenced above directs me when making a variation order to take into account the material changes in circumstances, limiting myself to a result that is appropriate in light of those changes. The $130,000 a year income imputed to the respondent is somewhat less than the notional amount in the Order (given its indexing provisions), but only marginally so. The applicant’s imputed income is unchanged. In light of those findings, I would vary the August 26, 2013 order only to the limited extent of reinstating spousal support at $3,000 per month as of July 1, 2017. This was the amount originally agreed to and ordered based on essentially those same numbers.

[91] In my view the Family Law Act section 33(8) objectives will continue to be met by this order. The applicant still has need, and at the respondent’s imputed income he is able to pay spousal support to assist in meeting those needs. This was a mid-to-long term relationship, the Rule of 65 applied, and the support order had compensatory elements. Imputation has addressed the applicant’s poor choices related to self-sufficiency. Where there is economic hardship, it is a direct result of the respondent’s intentional unemployment and under-employment.

[92] I have referred above to the SSAGs and the SSAG calculations. Failure to consult them is an error in law: see Gray v. Gray, 2014 ONCA 659 at paragraph 44. My only additional comment, an obvious one, is that the amount of spousal support I am ordering remains within the recommended ranges.

Life Insurance

[93] As noted, the respondent has allowed the life insurance policy that he was required to maintain under the existing Order to lapse. He did not request to vary that provision. The applicant, however, sought an order in her RTMTC for continued proof that the policy and beneficiary designation remain in good standing. In closing submissions the parties through their counsel agreed to the relief requested by the applicant as set out in her factum, along with a proviso that the cost of insurance would be need to be “reasonable”. I have included their specific agreed wording in my order below.

Decision

[94] The Final Order of Justice Kershman dated August 26, 2013, shall be changed as follows:

1. Paragraph 1 is deleted effective July 1, 2017, and replaced with:

2. The Respondent, Roderick Dunne, shall continue to pay spousal support to the Applicant, Carole McNeil, in the amount of $3,000.00 per month plus $81.25 per month for her medical plan commencing July 1, 2017, based on the Respondent’s imputed income of $130,000.00 per year and an imputed income to the Applicant of $20,000.00 per year.

3. Paragraph 6 is deleted and replaced with:

4. Within 30 days of the date of this Order, the Respondent shall obtain a replacement policy of Life Insurance with a face value of $500,000.00, provided that it can be obtained at a reasonable cost. For so long as he is obligated to pay support, the Respondent shall maintain the policy and designate the Applicant as its irrevocable beneficiary. Within 5 days of obtaining the replacement policy, the Respondent shall provide the Applicant with confirmation of its face value and beneficiary designation. Commencing on June 1, 2020 and June 1st each year thereafter, the Respondent shall provide to the Applicant proof that the policy and its beneficiary designation remain unchanged. Should the Respondent fail to have said life insurance upon his death, the face value of the policy shall be deemed to be a debt owing to the Applicant and shall form a first charge against the Respondent’s estate.

[95] If the parties wish to address me on costs I will accept written submissions as follows:

1. From the applicant served and filed within fifteen days from the release date of this decision of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.

2. From the respondent served and filed within fifteen days after he is served with the respondent’s submissions of no more than six pages, double spaced, in addition to any relevant offers and draft bills of costs.

3. If required, a reply from the applicant of no more than two pages double spaced served and filed within five days after she is served with the applicant’s submissions.

4. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.

Mr. Justice Timothy Minnema

Released: April 25, 2019