Court File and Parties
COURT FILE NO.: FS-17-21897 DATE: 2019-07-17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TABO SIKANETA Applicant – and – IRENE OTIENO Respondent
Counsel: Richard Niman, for the Applicant Gordon Meiklejohn, for the Respondent
HEARD: January 31, February 1 and 6, written submissions February 15, 26 and 28, 2019
Kristjanson J.
1This was a focused hearing on spousal support pursuant to the terms of a separation agreement.
2The Applicant on this review, Dr. Tabo Sikaneta, is a nephrologist. The Respondent, Irene Otieno, has three university degrees and a college certificate, and for many years worked as a registered dietician. Since June 2018 she has worked as a project supervisor in her boyfriend’s construction company. Tabo and Irene married in 1995 and separated in 2013. The parties share parenting of their two children, ages 14 and 11, on a 50/50 basis.
3I have found that Irene has been intentionally underemployed since the date of separation and impute income to her. As a result, both spousal support and set-off child support must be adjusted from June 2016 forward. I find that Irene has not re-partnered. I direct the parties to make further submissions, based on Divorcemate calculations which incorporate section 7 expenses, as to the adjustments which must be made. Since this was a focused hearing and the issue of duration was not addressed, I set a further review on the issue of entitlement/duration of spousal support, to be held by April 2021.
Issues
4The issues in this case are:
(1) What is the scope of the review established by the Separation Agreement? (2) What has been the applicant’s income for support purposes since August 30, 2015? (3) What has been the respondent’s income for support purposes since August 30, 2015? (4) What adjustments in spousal support and table child support should be made given the respective incomes of the parties? (5) What is the allocation of section 7 expenses? (6) What section 7 expenses should be paid?
Background Facts: The Marriage
5Tabo and Irene met in 1992 as undergraduates. Tabo started medical school while Irene was still an undergraduate. Irene graduated in December 1994. The parties married in August 1995 when Tabo was attending medical school in Hamilton. They moved to Toronto in July 1996 where Tabo completed his residency. After the marriage Irene went to George Brown College in 1996/1997, where she received a Certificate in Small Business Management. Irene then went to school full time at Ryerson University for two years. She completed a Bachelor of Applied Science, Food and Nutrition in 1999 and worked part-time.
6The parties moved to Boston in June 1999 for Tabo’s work; Irene upgraded her skills at the same time. Tabo completed a 4 Year Fellowship in July, 2003. Irene worked as a Registered Dietetic Technician at Massachusetts General Hospital from August 1999 to July 2001. Irene obtained a Masters of Science, Nutrition and Health Promotion degree from Simmons College in 2001, then completed a year-long Dietetic practical Internship at Massachusetts General Hospital in 2002. She became a Registered Dietician and held a job as a Clinical Dietitian at Massachusetts General Hospital from October 2002 until June 2003. Irene agreed that Tabo arranged for her Boston technician job, they had a joint line of credit which in part supported her Masters degree studies, and he supported her during her internship.
7The parties moved back to Toronto. Tabo began working as a nephrologist in Toronto in 2003, a position he has held since that time. Since 2011, his income has been $500,000.00.
8Irene became a member of the College of Dietitians of Ontario in June 2003. She worked full time as an Inpatient Clinical Dietitian at the University Health Network, Toronto Western Hospital from October 2004 to October 2008. After the birth of her first child in March 2005 she took the one-year maternity leave and returned to work. In February 2008 she had second child. She took a second maternity leave and returned to work part time in February 2009 as an outpatient dietitian. The part-time work was done in part to accommodate the activities of children. In 2011, she left her job as a dietician to set up an import-export company with ties to Kenya.
9Irene asserts that the date of separation is May 2013, while Tabo asserts it is November 2013. For the purposes of analyzing Irene’s income, I will accept Irene’s separation date of May 2013.
10The parties signed a final separation agreement on August 31, 2015. The two children are presently 11 and 14 years of age and reside on a 50/50 basis (shared custody) with each parent.
Issue #1: What Is the Scope of this Review?
11The parties signed a final separation agreement on August 31, 2015. Both were represented by counsel. They attended four mediation sessions prior to reaching the final agreement, which both acknowledged was a domestic contract under section 54 of the Family Law Act.
12The parties agreed to a review of the child and spousal support provisions to take place in June 2016. The parties agreed that any changes to Tabo’s child and spousal support payments “will be effective June 1, 2016, regardless of when the review is completed”: s. 5.22. The parties agreed to exchange a list of financial documentation (s. 5.21).
13Section 5.1 provides that “Subject to the June 2016 review,” Irene’s annual income was stated to be nil and Tabo’s was stated to be $500,000.00. Section 5.2 of the Separation Agreement provides:
Pending the review of the child and spousal support provisions in June 2016 referenced in paragraph 5.22 below, the parties have agreed that Tabo will pay to Irene a combination of child and spousal support such that she will receive 50% of the parties’ net disposable income.
14Section 5.12 of the Agreement states that commencing September 1, 2015, Tabo would pay Irene spousal support “in the amount of $8,794.00 a month such that Irene will receive 50% of the parties’ net disposable income.” Section 5.3 of the Agreement provides:
Irene acknowledges that she must contribute to her own support and has taken steps to become re-qualified, as required by the College of Dieticians, to work as a dietician. Irene will continue to make reasonable efforts to become re-qualified/to obtain gainful employment. If Irene has not obtained full-time gainful employment by June 2016, her failure to do so will form part of the June 2016 review referenced in paragraph 5.22 below.
15Considering the shared parenting arrangement, the agreement specified that Tabo was to pay to Irene a set-off amount of $6,002.00 per month to satisfy Guidelines child support.
16I find that the spousal support of $8,794.00 and child support of $6,002.00 were based on a Divorcemate calculation, where spousal support was set at the low end of the range “extended to include 50/50 split of NDI”, based on Tabo’s income of $500,000.00 and Irene’s income of nil.
17The parties agreed to share listed special and extraordinary section 7 expenses, including music lessons and equipment, Taekwondo, and “insurance and uninsured medical and dental expenses for both children.” The parties agreed to share on a 50/50 basis future special or extraordinary expenses if the parties consented to the expenses; in the event of a dispute, they agreed to negotiate, failing which they would mediate then arbitrate the issue.
18Tabo’s financial statement, appended to the Separation Agreement, made a comment on page 4 that “The parties’ expenses currently exceed the Respondent’s income…The Respondent is paying the parties’ expenses using the funds set aside for his 2014 income tax and a refund from his disability insurance….”
19In December 2018, Justice Monahan directed a focused hearing on the following issues:
(1) The parties’ respective incomes since August 30, 2015, and any adjustment in spousal and/or child support payment necessary in light of the review provided for under s. 5.22 of the separation agreement, and (2) The meaning of the term “net disposable income” as used in sections 5.12 and 5.13 of the separation agreement, and how that determination affects the parties’ support obligations.
20Irene’s position is that “nothing has occurred since September 1, 2015 which gives rise to the need to change the terms of the Separation Agreement respecting the amount of support to be paid” by Tabo, and that the terms of the Separation Agreement contemplate that spousal support is to be paid such that Irene will continue to receive 50% of the parties’ net disposable income and that it is “not open on a review to now suggest that equalizing the parties’ combined NDI is not appropriate...”
21Tabo, on the other hand, argues that the interpretation urged by Irene would require setting aside the Separation Agreement; the Agreement specifically requires a review; they bargained that no material change was required.
Analysis: The Scope of Review
22I agree that the language of the Separation Agreement is clear: no material change in circumstances is required. In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at para. 36, the Supreme Court held that a review allows a party “to bring a motion to alter support awards without having to demonstrate a material change in circumstances.” In this case, section 5.3 of the Agreement specifically provides that Irene would continue to make reasonable efforts to become re-qualified/to obtain gainful employment, and that if Irene had not obtained “full-time gainful employment” by June 2016, her “failure to do so” would form part of the June 2016 review. The requirement for a review was thus bargained for in the context of a genuine and material uncertainty as to the steps Irene would take to gain employment, as well as the income she would be capable of earning. In Leskun, the Court specifically identified situations in which review orders are appropriate including “the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment” (para. 36). That is exactly the situation here.
23While normally on a review the court must treat the matter as a first instance support application, Justice Monahan directed a focused hearing dealing with income. As a result, I do not deal with the duration of spousal support, although that is an issue I would have expected to be dealt with on the review. As a result, I set the issue of duration for spousal support (which will have to consider the basis of entitlement) for a further review, to take place by April 2021.
24I specifically find that there was no requirement in the Separation Agreement that support paid by Tabo would always result in a 50/50 allocation of net disposable income, or that the 50/50 NDI would survive the June 2016 review. This is clear from the time-limited wording of section 5.2 of the Agreement, which provides: “Pending the review of the child and spousal support provisions in June 2016”, the parties agreed that Tabo would pay to Irene support equivalent to 50% of the parties’ net disposable income. I find that the 50/50 allocation was an interim holding pattern, pending Irene’s efforts to obtain employment, and the ultimate determination on this review. The issue of Irene’s income was clearly intended to be a focus of this review, given the clear statement in section 5.3 that if Irene did not obtain “full-time gainful employment” by June 2016, “her failure to do so will form part of the review.”
25I am to set spousal and child support effective June 1, 2016 based on income determination, as required by section 5.22 of the Separation Agreement and Justice Monahan’s order.
Issue #2: The Applicant’s Income
26Tabo has worked as a nephrologist since December, 2003. He is employed by a Medicine Professional Corporation which receives Tabo’s OHIP billings; they pay Tabo’s Medicine Professional Corporation. Tabo earned $500,000 pursuant to the Associate Agreement at the time of separation; he still earns $500,000 under an Associate Agreement today. Tabo was earning income through a Medicine Professional Corporation at the time that the parties negotiated the Separation Agreement. He continues to do so today.
27Prior to 2014, Tabo received employment income. However, Tabo was in serious financial difficulties. He was spending more than he earned and was not paying the Canada Revenue Agency. Tabo made a consumer proposal in November 2013, which was part of the property terms of the Separation Agreement. I accept his evidence that he attempted to collect all family debts known to him and made them part of the consumer proposal.
28Pursuant to the Separation Agreement, Tabo paid $89,000.00 of the net proceeds of the sale of matrimonial home towards the proposal, as well as $7,000 per month towards the proposal. Irene contributed $2,000.00 per month to Tabo to be paid towards the proposal. Tabo finished paying off the consumer proposal in November 2018, and Irene also ceased contributing $2,000.00 per month at that time.
Findings of Fact: Tabo’s Income
29The uncontroverted evidence is that Tabo’s gross income, earned through his corporation, is $500,000.00. There is no evidence of any other income. Tabo has used this level of income in his Divorcemate calculations, rather than the income calculated in accordance with the Guidelines, which is lower.
30Thus, section 16 of the Guidelines provides:
Calculation of annual income
16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
31Tabo’s Total Income as set out on his T1 in 2016 was $245,700; in 2017 it was $386,350.
32Tabo is the sole shareholder and officer of his corporation. Section 18 of the Guidelines provides:
Shareholder, director or officer
18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Marginal note: Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
33In using $500,000 each year, Tabo is using all the pre-tax income of the corporation as the basis of support, which I find is in compliance with the Guidelines. Tabo has not claimed expenses (such as accountant fees) which he would be entitled to claim, and I find no reason not to accept the $500,000.00 annual income.
34Irene submits that by reason of the fact the Applicant (“Tabo”) has been able to defer the payment of a substantial amount of income tax on his yearly income as a result of receiving it through his corporation, he has received a far greater share of the parties’ NDI since September 1, 2015 to date than the Respondent has. Irene argues that the NDI 50/50 should be set by taking Tabo’s total gross income, minus income tax, minus amounts transferred to Irene.
35I specifically find that Irene’s approach fails to capture the personal and corporate tax liability faced by Tabo. The following table helps to illustrate the actual after-tax breakdown of what was ultimately received by each party:
| Item | 2016 | 2017 | Totals |
|---|---|---|---|
| Gross Income | $500,000 | $500,000 | |
| Paid to Irene | ($177,552) | ($177,552) | |
| Corporate Tax Return (tax expense) | ($73,551) | ($72,373) | |
| Personal taxes to be paid on undeclared draws taken during the year | ($98,336) | ($99,028) | |
| NDI Tabo | $150,561 | $151,077 | $301,632 |
| NDI Irene | $151,274* | $151,077* | $302,860 |
36The Federal Child Support Guidelines very clearly specify that subject to sections 17 - 20, income for child support purposes as set out in section 15 is based on “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. Irene’s proposed approach does not recognize the Schedule III adjustments for a range of benefits, deductions and credits.
37In addition, it does not comply with the definition of NDI in the context of the with child support formula in the Federal Spousal Support Advisory Guidelines (“SSAGs). The SSAGs, section 8.3, define the formula used to determine NDI where the payor spouse is not in a shared custody situation as follows:
Determine the individual net disposable income (INDI) of each spouse: ◦Guidelines Income minus Child Support minus Taxes and Deductions = Payor’s INDI ◦Guidelines Income minus Notional Child Support minus Taxes and Deductions plus Government Benefits and Credits = Recipient’s INDI
Add together the individual net disposable incomes. By iteration, determine the range of spousal support amounts that would be required to leave the lower income recipient spouse with between 40 and 46 per cent of the combined INDI.
38In a shared custody situation, such as is the case here, the SSAGs, section 8.4, provide:
Under the basic with child support formula, child support is deducted from the payor’s income and then that child support amount plus a notional amount for child support is deducted from the recipient’s income, to obtain individual net disposable income. Shared custody requires some changes to this basic formula.
Assume for the moment that the payor is paying only the straight set-off amount of child support in a shared custody case. If we were only to deduct the smaller set-off amount of child support for the payor spouse in a shared custody situation, that would misrepresent and understate the payor parent’s contribution to child support. Shared custody assumes that both parents spend directly upon the child in their shared care. The full table amount (plus any s. 7 contributions) is thus deducted from the payor spouse’s net disposable income. For the recipient, the notional table amount (plus any contribution to s. 7 expenses) is deducted from his or her income. This would be done in the calculation of INDI, even though the child support paid by the payor and received by the recipient would be the straight set-off amount.
39The parties used the SSAG/Divorcemate NDI, as discussed above, to establish the levels of spousal and child support, extended to provide 50% of NDI, to set support at the time the Separation Agreement was negotiated. The parties intended that the definition of NDI as set out in the SSAGs and as calculated in Divorcemate, be the definition of NDI used, not the one submitted by Irene in this litigation.
40I further do not find the evidence supports Irene’s position that Tabo obtained a benefit (more money) by receiving payment through a corporation. The tax liability did not disappear; the timing shifted the date for payment of the liability, but Tabo remained responsible for the taxes. This was the gist of the expert evidence.
41Mr. Ian Manning is a chartered professional accountant and a licensed public accountant who has acted for Tabo since 2012 and prepared the returns of both spouses 2012 through 2014. He explained how Tabo first earned income as a self-employed individual but converted to earning income through a Medicine Professional Corporation effective January 15, 2014. His evidence was that, due to integration, an individual who earns income through a corporation compared to an individual earning income personally should pay the same amount of tax. He explained that "in the Province of Ontario it's called over-integration, where an individual in the second scenario [through a professional corporation] pays slightly more income tax" than an individual earning it personally.
42On cross-examination, Mr. Manning testified that Tabo was struggling to keep up with tax instalments, had entered a CRA settlement, and needed a strategy to catch up. The advantage to earning income in the Corporation for calendar year 2014 with the fiscal year of January 15 meant that taxes could be deferred for up to 12 months. Mr. Manning also made clear that "the total taxes to be paid on the $500,000 [salary], it doesn’t change, but it's the timing of when it's to be paid."
43Mr. Manning testified that the timing benefit ended in 2017 or 2018. The advantages in the early years were tax deferral, but those have been achieved.
44I find that there was no element of tax avoidance, nor any element of attempting to defeat Irene’s interest in 50% of NDI, in the way Tabo has received his income. Irene has received 50% of NDI, as intended.
45Mr. Manning also clarified the significant tax liability that Tabo now owes to the Canada Revenue Agency. He explained that Tabo owes more taxes than he would if he was an employee.
46Irene also argues it is inappropriate to use Divorcemate calculations based on employment income. I agree with the reply submissions of Tabo, which state:
Irene has taken the position that there is a difference in the Divorcemate calculation regarding employment income versus how Tabo earns his income. Crucially, Irene did not submit any Divorcemate calculations reflecting any different conclusions; nor did she call any evidence about how Divorcemate calculates any purported difference in income structures. Moreover, her analysis also ignores the theory and practice of integration discussed by Mr. Manning. If this was really an issue that Irene was pursuing, she should have put forth evidence to support it.
47The evidence of Mr. Manning is clear that in fact, the tax liability on the corporation is slightly higher than the tax liability for employment income (due to a slight element of over-integration in Ontario). As a result, by calculating the Divorcemate using employment income, Tabo in fact is understating his tax liability, and thus paying Irene more. As a result, I give no weight to this argument, and specifically find that Tabo’s approach in fact benefits Irene.
Tabo’s Submission on 52/48 NDI
48Tabo submits that the support obligation should be varied, with Tabo receiving 52% and Irene receiving 48%.
49The SSAG Revised User Guide specifically comments on the 50/50 NDI split in the situation of shared custody, stating:
In shared custody cases, there is a clear default location for amount in the range: the amount of spousal support which would leave the children in each household with roughly similar standards of living. See Rollie Thompson, “The TLC of Shared Custody: Time, Language and Cash” (2013), 32 Canadian Family Law Quarterly 315. This outcome is consistent with the strong statements about similar living standards in Contino v. Leonelli-Contino, 2005 SCC 63.
Where neither spouse has re-partnered and there are no new children in either household, the starting point should be an amount of spousal support that leaves each household with equal net disposable income. The SSAG range in shared custody cases always includes this 50/50 NDI split, to recognize the importance of this principle. This default outcome can be adjusted, depending upon housing costs and other factors. Sometimes the equal NDI point is in the midrange, but it is just as often lower or higher in the SSAG range.
In Ontario, there is now a strong trend to equalize net incomes in these cases: Kochar v. Kochar, 2014 ONSC 5211; Neilipovitz v. Neilipovitz, 2014 ONSC 3008; Lafazanidis v. Lafazanidis, 2014 ONSC 3287; Rankin v. Rankin, 2014 ONSC 235; Martins v. Martins, 2014 ONSC 113; Dupuis v. Desrosiers, 2013 ONCJ 720; C.L.Y. v. D.G.Y., 2013 ONSC 6550; Mayer v. Mayer, 2013 ONSC 7099; Cuffe v. Desjardins, 2013 ONSC 4044; Price v. Burgess, 2013 ONSC 1142; MacDonald v. MacDonald, 2012 ONSC 6657; and Hurrell v. Hurrell, 2012 ONSC 4824.
50I agree with the reasoning set out in the Revised User’s Guide, given the shared custody situation, and find that NDI should continue at 50/50 as calculated by Divorcemate.
51Irene did not call any evidence from an expert or accountant or anyone trained financially to demonstrate that the parties did not split Tabo's income on a 50/50 basis.
52In the Financial Statement attached to the Separation Agreement (sworn December 9, 2014), Tabo showed expenses of $46,550. His expenses in his most recent Financial Statement show his expenses at $27,939. His expenses have dropped almost $20,000 since separation. Further, as reflected in his Financial Statement, Tabo's net worth is $9,089. He rents a home and has done so since separation. He has not amassed assets.
Issue #3: Irene’s Income
53There are four key issues to be determined in determining Irene’s income for spousal and child support purposes:
(1) Should income be imputed to Irene on the basis that she was intentionally unemployed within the meaning of s. 19(1) of the Federal Child Support Guidelines until June 2018, and is now intentionally under-employed? (2) If so, is the intentional under-employment or unemployment required by the needs of any child or by the reasonable educational or health needs of the parent or spouse? (3) If not, what income is appropriately imputed? (4) Has Irene re-partnered with Greg McManus and, if so, should this be included as part of Irene’s income?
Facts: Irene’s Employment After Separation
54In October 2011, Irene stopped working as a dietitian. There is a dispute between the parties as to the reason. Irene’s evidence is that the parties jointly agreed that she would leave her job, stay home full-time, invest in and run a business in Kenya, and she would look after the children and travel to Kenya. Tabo’s evidence is that he strongly disagreed with her decision to quit working as a dietitian. What is important is that there is no evidence that the business was profitable, either during the marriage or after separation. In her Answer, Irene pleaded that the parties lost $123,000.00 on the Kenya venture.
55Irene testified that she has been ready to return to the workforce since June 2013. She testified that she understood her obligation was that she should make every effort to find a job. However, I find that Irene did not undertake reasonable efforts to secure employment following May 2013, that she was intentionally unemployed for six years post-separation, from May 2013 to June 2018, and that she has been intentionally underemployed since June 2018.
56Irene’s evidence was that she spoke to Toronto Western colleagues in 2013 about her options. However, she did not apply for a dietician job until May 2017.
57I find that Irene wasted years unreasonably pursuing a possible job opportunity with AMREF Health Africa, a not-for-profit with a focus on sub-Saharan African health issues, to the exclusion of any job applications in Canada as a dietician. AMREF has 12 fundraising offices across the world, including in Toronto. Irene testified that she began her conversations with Ms. Kamanye, a friend of hers who is the Executive Director of AMREF Health Africa, about working with AMREF, as described below. Ms. Kamanye introduced Irene to several officials involved with AMREF and the proposed AMREF University. Irene was interested in working with to proposed new AMREF University on a nutrition/dietician course.
58Ms. Kamanye encouraged Irene to review an online nutrition course and provide feedback, on a volunteer basis. Ms. Kamanye sent letters and e-mails introducing Irene and passed on Irene’s CV. Ms. Kamanye arranged meetings for Irene in Toronto in 2016. An AMREF University official indicated he hoped that the University would be up and running in January 2017; in fact, the University did not open until 2018, and at the time of the trial, there was no nutrition/dietician course. Ms. Kamanye arranged for Irene to meet AMREF officials in Nairobi, Kenya in December 2016 for a general discussion, not an interview for a specific position. Irene paid her own way to Nairobi in December 2016. Ms. Kamanye invited Irene to co-chair two sessions at an AMREF Africa Health Agenda International Conference in Nairobi in March 2017 on a volunteer basis. Again, Irene paid her own way. Both Ms. Kamanye and Irene testified that this was a networking opportunity. At this time, Irene learned that the dietetics component of university courses for the proposed AMREF University was being delayed, and as there was not enough funding.
59In her evidence, Ms. Kamanye was clear that there was no contract available for Irene, as the issue was funding. She said the goal of networking was the idea that if we win a grant, you’re “in the discussion.” She agreed that Irene is highly qualified. Ms. Kamanye agreed on cross-examination that at all times, there was no confirmation that Irene would get a paid position. She stated that Irene was continuing to position herself with AMREF in case they got funding for a position which she could do from Canada.
60Irene did not testify that she understood that she had a job or would get a job; she knew that any job with AMREF was contingent on funding, and any position with AMREF University was contingent on many factors including obtaining accreditation, a physical facility, a nutrition program, and on funding. Irene conceded that she found out in March 2017 that there would be no funding for dietitian positions with AMREF University for the foreseeable future; she testified that it was not until the summer of 2017 – four years post-separation - that she realized that she did not want to put all her eggs in one basket and began to apply for other jobs. This is four years too late.
61For these reasons, I find that Irene’s pursuit of a potential position with AMREF to the exclusion of any other employment search was unreasonable.
62Irene did not apply for any jobs in Canada from the date of separation until May 2017. A critical factor is that Irene was a registered dietician on the date of separation in May 2013. Because Irene did not complete 500 hours of dietetic work between November 1, 2011 and October 31, 2014, when she sought to renew her license in 2014, the College of Dieticians required Irene to undergo an assessment. She wrote the required exams in October 2015 and her license was renewed in December 2015.
63If at any point between May 2013 and October 31, 2014 Irene had obtained a job as a dietician, which was her field of specialty, she would not have had to go through this process. That would have required 13 weeks of full-time (38 hours per week) or 25 weeks of part-time (20 hours per week) work, in the 27 months post-separation. All delay associated with her dietician license renewal is because of Irene’s intentional unemployment.
64I set out below findings of fact regarding Irene’s evidence of job searches post-separation:
(1) 2013: Irene speaks with Toronto Western colleagues about her options regarding return to work. (2) Irene completed a three-month internship for Action Against Hunger from October 2014 to December 2014, for which she received a $3,000 stipend. (3) 2015: Irene begins speaking to Ms. Kamanye about options at AMREF Health Canada. (4) Irene writes examinations in October 2015 and requalifies as a member of the College of Dieticians in December 2015. (5) June 2016: Ms. Kamanye writes a letter to AMREF Health Canada confirming Irene had consulted with her over the last few months regarding possible opportunities at AMREF Health Africa and AMREF University. (6) October 2016: On a volunteer basis, Irene completed a project for AMREF health Canada reviewing an online public health nutrition course and providing comments. (7) October 28, 2016: Ms. Kamanye provides Irene’s resume to Peter Ngatia who is affiliated with AMREF University. (8) October 31, 2016: Irene e-mails Peter Ngatia regarding potential opportunities at AMREF University. (9) December 2016: Irene meets with representatives of AMREF/AMREF University in Nairobi; she pays her own way. (10) January 2017: Peter Ngatia thanks Irene for her resume, confirms that AMREF University is awaiting approval, and Irene confirms she is contacting others in AMREF. (11) February 2017: Irene e-mails a person at University Health Network regarding Irene’s proposed consultancy, which would involve UHN partnering with AMREF University to start a Dietetic program in East Africa. On March 20, 2017 the other person cancelled their meeting. Irene never followed up as the program at AMREF University was delayed. (12) March 2017: At the invitation of Ms. Kamanye, in March 2017, Irene co-chaired two sessions at the AMREF Africa Health Agenda International Conference in Nairobi, Kenya, on a volunteer basis. Irene paid her own way to Kenya. Both Ms. Kamanye and Irene testified that this was a networking opportunity. At this time, Irene learned that the dietetics component of university courses for the proposed AMREF University was being delayed, and as there was not enough funding. (13) May 30, 2017: Irene applies for four dietician jobs in Canada. (14) June 6, 2017: one job application. (15) June 20, 2017 – two job applications. (16) September 6, 2017 – two job applications. (17) September 25 – November 25, 2017: twelve job applications. (18) October 10, 2017 – Irene requests a reference from her former employer at UHN. Tabo’s Application is Issued (19) December 12, 2017 – six job applications. (20) February 6-7, 2018: twelve job applications. (21) February 19-20, 2018: four job applications. (22) June 2018 – Irene accepts a position with Mr. McManus’ construction firm.
65Irene testified that she sought work through two internet job sites and obtained internal UHN postings through a friend. I accept that Irene was hospitalized from March 18 to April 3, 2017, and that she did not look for jobs from March 18 to May 2017 due to the surgery and its and recovery. This is, however, two months out of four years post-separation.
66Irene did not attend career counselling, a placement agency, or take any steps other than as described above.
67In the period between learning of her requalification from the College of Dietitians in December of 2015 until May 2017 (1.5 years), Irene applied for no jobs in Canada. Between May and December of 2017 (7 months), Irene made a total of 22 applications for paying jobs. Irene made a further 23 applications in the two-month period between the service of Tabo's Application and the delivery of her Answer. She then proceeded to apply for eight other jobs after she served her Answer.
68I find that based on the timing of her job applications in Canada, Irene only really accelerated her efforts to start looking for a job once Tabo commenced this Application, 4.5 years after separation.
69Greg McManus, Irene’s boyfriend, hired Irene to work in his construction company commencing June 12, 2018. He pays Irene $30 an hour. He testified that Irene is not a salaried employee because she is not yet a key employee as she is learning the business. If she became a salaried employee, which he said could be a year from now, she would be able to make between $60,000 and $80,000 per year. Mr. McManus testified that Irene does not ask for overtime, and specifically that she works a lower number of hours, 30 to 35 hours every two weeks, because of her domestic situation. Greg identified that he had work available in Hamilton and London but Irene expressed a desire not to travel, and that if they didn’t get work in Toronto, she would not have hours. He also said that ideally, she would oversee the sub-trades, but she needs a working knowledge of the business to do that.
70Irene began working at McManus Contracting in 2018. In her employment letter dated June 12, 2018, she was advised that she would be expected to work 35 to 44 hours per week and would be paid $30 per hour. However, given a summary of hours worked by Irene in each pay period as set out in her paystub’s, she worked an average of 38.4 hours over every two-week period which is part-time work. The most she worked over any two-week period was 72 hours (July 2018), and the least that she worked in any of the two-week periods was 17 hours (September 2018). The number of hours of work that she works is on average, 20 hours per week. This is far less than full-time work, and less than the amount of the work hours stipulated in her contract. This is intentional under-employment.
71I find that there is no reason for Irene not to work full-time. She and Tabo have a 50/50 shared parenting arrangement. If her new chosen line of work requires travel to Hamilton, Kitchener and London to get full-time hours, then she must organize her life to obtain those full-time hours.
The Law and Conclusion on Irene’s Income
72Section 19(1)(a) of the Federal Child Support Guidelines permits the court to impute additional income where a spouse is intentionally underemployed:
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;
73The Court of Appeal for Ontario held in Lavie v. Lavie, 2018 ONCA 10 at para. 26 that:
[26] There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment…The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed...
74I find that Irene has been intentionally underemployed since 2011, when she quit her job as a dietician to set up a business in 2011; she has clearly been earning less than she could since May 2013, the date of separation. I have considered all relevant factors, including "age, education, experience, skills, and health of the parent.” Irene was very well-educated, young (43), and an impressive history of work as a dietician at the date of separation.
75This case is very similar to the decision of Justice Moore in McKenzie v. McKenzie, 2018 ONSC 4651. In that case, the mother was an economist who held three university degrees, had 10 years of work experience and was described as "presentable, articulate and obviously very intelligent”, as well as "in good health" with "no physical disabilities restricting her ability to work." Irene also has all these qualities.
76Justice Moore found at para. 80 that "separation brought with it a positive duty upon her to maximize her income earning potential for the benefit of the children." I agree with this. Irene has been under a duty to maximize her earning potential for the benefit of the children since May 2013. She has failed to do so.
77I adopt the words of Justice Moore at para. 93, that “separation is a game changer in terms of the duty on each party to make reasonable efforts to mute any financial disadvantages and economic hardship arising from the marriage or its breakdown.”
78Justice Moore ultimately imputed $50,000 income to the wife even though she was not working and ordered a set-off of child support given the shared parenting arrangement. Notably, McKenzie was a trial at first instance and occurred relatively shortly after separation. The same is not true in this case. Irene and Tabo separated 5.5 years ago, and this is a review; the Separation Agreement very clearly brought Irene’s attention to her duty to seek employment.
79I agree with Tabo’s submission that although it is noble cause, the reality is that AMREF was not a viable employment option for Irene, and for too long Irene appeared to have a form of "tunnel vision" in her job search. Irene acknowledged under cross-examination that the "only reason I wouldn't get a job [with AMREF] was if there was no funding." This was a crucial concession as it was made clear at the outset of her conversations with AMREF that funding was far from a certainty. Moreover, despite attempting to obtain a position with AMREF as early as September of 2016, it was still unknown in 2017 whether AMREF University would be accredited; by the time of trial in 2019, there was still no dietician program in place.
80Tabo seeks to impute income to Irene of $30,000 in 2016; $40,000 in 2017; and $60,000 in 2018 and following years. This income likely falls short of what a well-educated dietician can earn in Ontario. When Irene left the field in 2011, she was making $32.00 per hour. In her only job interview post-separation, she told Mt. Sinai that she would be seeking $35.00 per hour. She agreed with the $34.00 per hour figure for a dietician which is ample support for an imputed income of $60,000.00 per annum, and I accept Tabo’s graduated earning figures, leading to $60,000.00 imputed income 2018 and in the future.
81Irene’s employment at McManus Contracting, while better than nothing at all, does not provide her with consistent full-time hours and income. Applying the reasoning of the Court of Appeal in Lavie, Irene is earning less than she could be and is therefore presently intentionally underemployed (and formerly intentionally unemployed). Both Mr. McManus and Irene acknowledged that her hours are low since Irene is unwilling to travel outside Toronto, and thus will not work on jobs in London or other southern Ontario communities where Mr. McManus’ company operates. This too indicates that Irene is intentionally under-employed.
82Section 19(1)(a) provides that the court must consider if such intentional under-employment 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.” I do not find that Irene’s underemployment is “required” within the meaning of section 19(1)(a).
83I set spousal support at the low end of the range. When the Separation Agreement was negotiated, spousal support was set at the low end. Tabo’s income is over $350,000, and I have not set support below the Divorcemate level. In addition, there is no reduction in child support, despite Tabo’s income over $150,000. Further, Irene conceded that she did not complete the financial statement correctly, omitting some accounts and she did not complete the expenses information required on the financial statement. In these circumstances, the low end is appropriate.
Findings of Fact: Re-partnering
84Tabo sought to reduce or terminate spousal support claiming Irene has re-partnered. Tabo testified that he believed that Greg and Irene were living together. He has frequently seen Greg McManus at Irene’s home when he is attended for pickup and drop-off of the children. Greg has a key to the house. Outside of Irene’s rented home is an advertisement for Greg’s business. Greg has viewed games played by the children, has celebrated holidays with the children, bought them presents, and taken them to meet his own children in London, Ontario.
85Irene testified that the parties do not live together. She and Mr. McManus have been involved since November 2017. They stay over at each other’s places in Toronto and London. They have not talked about moving in together, and it is not in her plan. Irene denies that Greg pays for her expenses or her children’s expenses, and I accept that evidence. Greg has given the children Christmas and birthday gifts, and she has met Mr. McManus’s children. Mr. McManus came to Ajax/Oshawa where the children were playing in tournaments, to assist with overlapping games and driving during a storm when Irene asked for help. She invited him to a music recital in June 2018. There is nothing in Irene’s testimony that would indicate that she has re-partnered, or that Mr. McManus pays her living expenses other than travel (where he accompanies her) and gifts.
86Mr. McManus testified he had known Irene for approximately 14 months and she was his girlfriend. He lives in London, Ontario and has children in London. He runs a company which is a general contractor in southwestern Ontario (and which has hired Irene as an employee since June 2018).
87Greg bought the children basketball shoes for Christmas. Greg testified that he goes to their basketball games as often as he can, although not on a regular basis. On cross-examination, he agreed that he had bought them skates through a state exchange, he had taken them to a tournament in Ajax and drove back with them.
88Greg testified that he has been renovating the property Irene rents because Irene put him in touch with the landlord, and he was retained by the landlord.
89In terms of their relationship, Mr. McManus was clear that he did not support Irene financially. They socialize, go out, and have stayed at each other’s homes. Mr. McManus and Irene attended Ms. Kamanye’s wedding in Uganda, and Mr. McManus paid for the flights and the hotel, although they shared some expenses and she paid for some meals. He testified that he has bought gifts for Irene, including another Caribbean trip, and typically buys dinner. However, he does not pay any of Irene’s expenses and his company does not pay Irene’s expenses. Greg testified he does not agree that they will move in together, and he has no plans to move in together. I accept this evidence.
90As a result, I find that Irene has not re-partnered, and there is no reduction in spousal support on that basis.
Findings of Fact: Section 7 Expenses
91Tabo is claiming $32,967.88 of section 7 expenses which he has paid. Irene agrees to the payment of these expenses save and except for the following:
(1) Trombone lessons, 2018/2019, $959 (2) Medical and dental insurance premiums (children only), January 2016/September 2017, $5224.24 (3) Medical and dental insurance premiums, (children only), 2018, $2344.02 (4) Young People’s Theatre, 2017, $486 (5) Trombone student rental protection, 2018, $25.99 (6) Tae kwon do supplies March 2018, $324 (7) Membership, tae kwon do training Centre, 2018/2019, $1958.30
92The total agreed-upon section 7 expenses paid by Tabo are $21,646.33. The total disputed expenses are $11,321.55.
93There have been significant issues with respect to payment of the section 7 expenses. For example, one email shows that in respect of a drama class request in 2017, Irene proposed a 35/65 split because as she stated, “we are not equalized”, and there were continuing disputes over payment.
94In fact, the parties agreed at paragraph 5.6 of the Separation Agreement that they would specifically share music lessons and equipment, taekwondo lessons and equipment, medical insurance and uninsured medical/dental expenses for the children. While Irene proffered explanations for her opposition to the taekwondo and music lessons, they are provided for in the agreement.
95On the braces, she took the position that in the absence of an explanation or a medical letter from the dentist the braces are purely cosmetic. Tabo testified that the dentist recommended this medically, to alleviate pain. I accept his evidence. Irene has access to the dentist but chose not to speak to the dentist. Irene is to contribute to the cost of the braces.
96Tabo stopped paying for the RCM piano in part because of his financial difficulties and because Irene was not contributing contrary to the agreement. The parties agreed to share the costs of music lessons and equipment. Irene must pay her share of both RCM piano and trombone.
97The parties agreed to share “insurance and uninsured medical and dental expenses for both children.” The premiums and medical/dental expenses claimed by Tabo fall into this category.
98The parties agreed to share on a 50/50 basis future special or extraordinary expenses if the parties consented to the expenses; in the event of a dispute, they agreed to negotiate, failing which they would mediate then arbitrate the issue. Both parties have argued section 7 issues before me. I find the other section 7 expenses claimed by Tabo are qualifying section 7 expenses, to which Irene must contribute 50%. I specifically find that the 50/50 allocation was negotiated in the Separation Agreement and is to continue.
99In the future, the parties are to follow the process for approval and reimbursement set out in the Separation Agreement.
Irene Section 7 Expenses
100Irene has made a claim for reimbursement of section 7 expenses incurred between September 2015 and September 2018, in the total amount of $13,845. This includes swimming lessons, art classes, music lessons, and camps, all of which are valid section 7 expenses. Tabo must pay half.
101Irene is also seeking payment of one child’s phone bill from March 2017 to January 2019, in the total amount of $1984.46. Irene acknowledges that Tabo paid the phone bill from September 2015 to February, 2017. I find that this is a valid section 7 expense, and Tabo is to pay half.
Set-Off Child Support
102The parties in their Separation Agreement agreed in paragraph 5.5 that Tabo would pay a set-off amount of child support. Child support should be the table amount for each of them under the Federal Child Support Guidelines, SOR/97-175, based on each of their respective incomes/imputed income for child support purposes, set off against one another, in accordance with Section 9.
103Section 9 of the Child Support Guidelines states that in cases of shared parenting:
- Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
104The weight to be given to each of the factors will depend on the specific circumstances. Bastarache J. for the majority in Contino v. Leonelli-Contino, [2005] 3 SCR 217, 2005 SCC 63 held at para. 77 that “[t]he simple set-off verified against the budgets submitted by the parties under factor 9(c) is however acceptable in the absence of other evidence, since it leads to an examination of the actual capacity of each party to contribute to the expenses and consideration of the standard of living of both households.”
105Tabo seeks set-off child support based on Irene’s imputed income, back to the date of the review (June 2016). In this case, Irene did not submit a complete budget; items were missing on her financial statement and she did not complete the expenses. She made no submissions on adjustments to set-off child support, although imputed income was clearly in issue and as a result, so was set-off child support. The support is set to provide a 50/50 split of NDI. In this case, I find set-off child support based on income/imputed income, commencing in June 2016 is appropriate.
Calculation of Spousal Support and Amounts Owing
106Tabo prepared Divorcemate calculations based on imputed income of $30,000 in 2016; $40,000 in 2017; and $60,000 in 2018. Based on the evidence, Irene has been intentionally unemployed since May 2013. At that time, she had only been out of the dietician workforce for two years, and she was registered. She had a positive duty to make what she was capable of making. As set out above, I impute income of $30,000 in 2016, $40,000 in 2017, and $60,000 in 2018 and following. I find that Irene’s income was nil in 2015. I would have imputed income of $30,000.00. However, the review and readjustment is restricted to June 2016 and following.
107As noted, the parties clearly agreed to a 50/50 allocation of section 7 expenses in the future. The Divorcemate calculations prepared by Tabo did not include the section 7 expenses; as a result, spousal support is higher than it should be. This is an error. As I stated in Medjuck v. Medjuck, 2019 ONSC 3254 at paras. 47-48:
[47] The SSAG Revised User’s Guide clearly states that section 7 expenses must be included in calculating the SSAG range, as “by definition, any payment of section 7 expenses will reduce the range for amounts of spousal support”, and where “section 7 expenses are large, failure to consider section 7 expenses can be quite serious for the taxpayer.”: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p. 32.
[48] After the hearing, I wrote to the parties and requested additional submissions and additional Divorcemate calculations including both the special and extraordinary expenses and the related tax deductions or credits. I provided the parties with an article from the DivorceMate website, Christine Montgomery, “Special Expenses-To Include or Not Include? Common Mistakes/Misunderstandings Re: Special Expenses”, DivorceMate Software, June, 2016, and asked for their submissions. I apply the following principles as set out in the article:
- In order to properly calculate spousal support under the SSAG, it is critical that any Special Expenses paid by the parties be included in the calculation. If the Special Expenses are not included, the spousal support figure will be inaccurate”,
- One of the most common mistakes relates to arrangements “where the parties determine child and spousal support in the absence of Special Expenses, and then simply provide that any Special Expenses will be shared according to percentages provided. In order to properly calculate spousal support under the SSAGs, it is critical that any special expenses paid by the parties be included in the calculations.”
- “The critical nature of the Special Expenses in determining spousal support stems from the direct connection that exists between child support (i.e. Table Amount plus Special Expenses) and spousal support in the “With Child Support” formulas of the SSAG (which include the “Custodial Payor” and “Adult Children” formulas). The more child support being paid, the less money the payor has available to pay spousal support, and the lower the spousal support range will be.”
- “Because Special Expenses are an important component of child support, if they are not included in the calculation, the child support will be underrepresented, and so spousal support will be higher than it should be. In other words, spousal support is determined based on the party’s reduced “after Special Expenses” income. If Special Expenses are not included in the calculation, they cannot be deducted from the party’s income, and so the spousal support obligations will be based on a higher income for the party than they should be.”
- “[T]he apportioning percentages for the Special Expenses provided at the bottom of each Scenario in the Support Scenario details will be accurate only if Special Expenses have been included in the calculation.”
- Associated tax deductions and tax credits must be included in the calculation in order to determine the net cost of the special expenses to be apportioned according to the Child Support Guidelines (“CSG”).
108As a result, I have sent the parties draft Divorcemate calculations for 2016, 2017 and 2018 incorporating Irene’s imputed income and a 50/50 division of section 7 expenses. Where an expense is for split years (e.g., 2016-2017), I generally allocate 50% to each year, unless the expense is under $250.00, in which case it is allocated to the earlier year. The parties are to make submissions, with Divorcemate calculations, claiming adjustments for spousal support, table child support and section 7 expenses from June 2016 forward.
Further Review
109Tabo has requested that a review be set for 2020. This review proceeded as a focused hearing and did not deal with duration of support. The Divorcemate calculations show spousal support for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 8.5 years and a maximum duration of 17 years. The minimum duration would end in November 2021.
110By Justice Monahan’s order, the review set out in the Separation Agreement did not take place; rather, the parties had a focused hearing dealing with issues of income only. However, generally a review is a support application in the first instance. As stated by Lang, J.A. in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 63:
A review allows an application for support without the need to prove the material change in circumstances required in a s. 17 variation application. Unless the review is restricted to a specific issue, it is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum.
111The review stipulated by the Separation Agreement expressly covers spousal and child support with no limitations. Because this was a focused hearing, there has been no finding of the basis of entitlement. That issue will have to be decided on the review, since it will likely affect duration.
112I order that a review take place no later than April 2021, to determine the duration of spousal support; the basis of Irene’s entitlement; and if the spousal support is limited by duration, any step-down or other provisions to be implemented.
Costs
113The parties are encouraged to settle the question of costs. If they are unable to do so, then Tabo is to make cost submissions of no more than 3 pages, plus a bill of costs and sealed Offers to Settle, by August 1. Irene is to make costs submissions with the same constraints. If Irene intends to challenge the quantum of fees or disbursements and not just the scale, then she is to file her bill of costs. I draw counsel’s attention to Justice Chappel’s decision in Beaver v. Hill, 2018 ONSC 3352 at para. 46 (internal citations omitted):
A useful benchmark for determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees and disbursements in the matter …Although there is no requirement that a party resisting costs file their own Bill of Costs, it is preferable that they do so to assist the court in dealing with costs in a fair and reasonable manner ….. Failure on their part to provide details regarding their own costs is a factor that the court may take into account in considering the reasonable expectations of the losing party, and may entitle the court to draw an adverse…. Consideration of the other party’s Bill of Costs is particularly helpful if that party challenges a costs claim on the basis of alleged excess and over-lawyering … As Winkler J. stated in Risorto, at para. 10, such allegations amount to “no more than an attack in the air” if the unsuccessful party fails to produce their own Bill of Costs. In addition, a significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order…
Order
113The parties are to make submissions by July 25, with Divorcemate calculations, on amounts owing by either party for child support, spousal support and section 7 expenses from June 2016 to the present. The Divorcemate calculations are to be extended to include a 50/50 split of NDI (as defined by the Spousal Support Advisory Guidelines), and a 50/50 allocation of section 7 expenses. Spousal support is set at the low end of the range. If the date interferes with vacation, then counsel may request an extension through the Family Office.
114The section 7 expenses for each year are to be included in the Divorcemate calculation, with estimated section 7 expenses for 2019.
115Tabo and Irene are to pay the table amount of child support under the Federal Child Support Guidelines, SOR/97-175, based on each of their respective incomes/imputed income for child support purposes, set off against one another, in accordance with Section 9.
116Tabo’s income for child and spousal support purposes is declared to be $500,000.00 for the years 2015 and following.
117Irene’s income for child and spousal support purposes is imputed at $30,000 for the years 2015 and 2016, at $40,000 for the year 2017, and $60,000 for 2018 and following.
118The parties are to make submissions as to the terms of the Order regarding timing of repayment (e.g., set-off, step-down, lump sum).
119A review is to take place no later than April 2021, to determine the duration of spousal support; the basis of Irene’s entitlement; and if the spousal support is limited by duration, any step-down or other provisions to be implemented.
Kristjanson J.
Date: July 17, 2019
COURT FILE NO.: FS-17-21897 DATE: 20190717 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TABO SIKANETA Applicant – and – IRENE OTIENO Respondent
REASONS FOR JUDGMENT Kristjanson J. Released: July 17, 2019