Klingbeil v. Klingbeil, 2019 ONSC 5236

COURT FILE NO.: 15125/18

DATE: 2019-09-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laurie A. Klingbeil, Applicant

AND:

Robert E. Klingbeil, Respondent

BEFORE: Justice R. Raikes

COUNSEL: Maureen Cannon, Counsel for the Applicant Monique Rae Bennett, Counsel for the Respondent

HEARD: September 5, 2019

ENDORSEMENT

[1] The respondent brings a motion found at Volume 3, Tab 16 of the Continuing Record. The Applicant brings a motion found at Tab 19 of the same volume. The parties resolved much of the relief sought by the respondent by a Partial Consent filed at the commencement of argument of the motions. A consent order was made that:

• The divorce is severed from the corollary relief claimed.

• The divorce will issue on the basis that they have lived separate and apart for more than one year, using a date of separation of January 1, 2016.

• Each party will receive $50,000 from the monies held in trust by the lawyer who acted on the sale of the matrimonial home.

• The respondent’s obligation to pay child support for Paige (now 18) is terminated August 31, 2019 on an interim interim basis.

• The respondent’s obligation to pay child support for Ashley (now 20) is terminated effective August 31, 2019.

• The issue of under or overpayment of child support is preserved to trial.

[2] The remaining issues are: the respondent’s request for interim spousal support, and access/accounting for and signatures for the RESP account. Those issues were argued on September 5, 2019.

Facts

a. Background

[3] The parties married August 28, 1993. They separated January 1, 2016. They are the biological parents of two daughters, Paige and Ashley.

[4] The respondent is 53 years old. He was 50 on the date of separation.

[5] The applicant is presently 50 years old. She was 46 when they separated.

[6] The children resided with the applicant after the parties separated.

[7] During the marriage, the applicant worked part-time in order to be home to care for the children. She was employed as an x-ray technician. Her 2014 and 2015 income was $55,778 and $64,084, respectively.

[8] On the date of separation, the respondent was employed as an operator engineer on a full-time basis at Nova Chemicals in Sarnia. His 2014 and 2015 income was $145,173 and $134,271, respectively. He was the primary breadwinner for the family.

b. Respondent’s Post-Separation Employment

[9] At some point in 2016 after the parties separated, the respondent went on disability at work. According to his affidavit, he was off work dealing with anxiety, depression and alcoholism, something he suffered from during the marriage for many years. He returned to work in November 2017 but was subject to testing to ensure that he was not consuming alcohol. He failed a test. His last day of work was March 30, 2018. He deposes that his employment was terminated for cause.

[10] His Record of Employment indicates the reason for issuing the ROE was “leave of absence”. Thus, counsel for the applicant submits that he has not been terminated as he deposed.

[11] According to his income tax returns and notices of assessment, his income in 2016-2018 was:

2016- $47,608

2017- $18,094

2018- $249,124

[12] For much of 2016 and 2017, the respondent’s primary source of income was disability insurance payments which were not included as income for tax purposes. His child support obligation for the two children was fixed at $1,142/month based on imputed income of $74,431 that the parties informally agreed to. That income was based on his prior disability income.

[13] The issue of the correct amount of child support payable is an issue for trial. The applicant seeks to impute a higher income to the respondent.

[14] Since he ceased working at Nova Chemicals, the respondent has made only one job application and attended one job fair. He remains unemployed with no employment income.

[15] In 2018, his income is unusually high because he cashed in RRSPs. His counsel advises that most, if not all, of that money has been spent. He has no income and no prospect of income.

[16] The respondent has re-partnered. He resides with Kelly Beauchamp at her home. Ms. Beauchamp earns approximately $70,000 per annum. It appears from his most recent Financial Statement that she is paying most of his daily living expenses.

c. Applicant’s Post-Separation Employment

[17] Following separation, the applicant was able to obtain full-time employment at Bluewater Health. Her income for the period 2016-2018 was:

2016- $82,576

2017- $89,283

2018- $90,671

d. Respondent’s Position re Spousal Support

[18] The respondent seeks spousal support based on a needs and means approach. He asserts that he is unable to obtain work and has no income. Their marriage was almost 23 years. She has the means to pay given that her income has increased significantly since separation. The respondent submits that a minimum wage income should be imputed to him for spousal support calculation purposes.

[19] He has attached a DivorceMate calculation at Exhibit L to his August 20, 2019 affidavit. It shows a range of $1,706 at the low end, $1,991 at the mid-point and $2,275 at the high end. He seeks interim without prejudice spousal support of $1,700 per month. His counsel submitted that everything will get sorted out once equalization figures are finalized so an interim order will not prejudice the applicant.

e. Applicant’s Position re Spousal Support

[20] The applicant’s position is that of the two spouses, she is the one who would be entitled to seek spousal support from him. In her uncontradicted evidence, she deposed that during the marriage, she worked part-time and reduced hours to care for the children so that he could work longer hours. She took maternity leaves for both children. She was the primary caregiver for the children. Her pension will be significantly less because of the reduced hours she worked. She earned far less than he did and depended upon his income. He did not sacrifice his career or earnings for the family. He has no entitlement to spousal support.

[21] The applicant also asserts that income should be imputed to the respondent consistent with his former earnings as an operator engineer at Nova Chemicals. She submits that he is not working through his own wrongful behaviour and his failure to seek new employment with even a modicum of diligence.

[22] She argues that the events giving rise to his request for spousal support occurred post-separation and have nothing to do with the marriage or its breakdown. She notes that there is no evidence that the respondent is making any effort to address his problems with alcohol. No medical evidence has been provided.

[23] Further, she submits that if spousal support is payable, it should be based on her income at the date of separation. Post-separation increases should not be considered.

[24] The applicant is critical of the expenses listed in the respondent’s latest Financial Statement. She submits that they are excessive and do not disclose any real need on his part. I will address same below.

[25] The applicant points to the respondent’s dissipation of assets since separation. Hockin J. made an order on April 25, 2019 to prevent further depletion of assets including the children’s RESPs.

f. RESPs

[26] The RESP account is jointly held. The respondent maintains that he has been excluded from access to the account. He has been unable to view transactions on-line. He wants to know what funds were spent on and wants to sign jointly with the applicant when monies are to be paid out.

[27] The applicant maintains that the respondent has blown through his savings since separation. He frustrated her efforts to sell the matrimonial home which necessitated an order that she have the authority to list and sell it. He has been uncooperative and she does not trust him to have access to the account.

[28] As for expenditures, she has provided him with passwords so that he can look at the account. She is willing to provide an accounting of expenditures to date. Para. 4 of Justice Hockins’ order restrains the respondent from depleting or transferring family property pending equalization or further order. That was necessary because of the respondent’s outlandish spending after separation. A subsequent order was made by Bondy J. on consent modifying the restraining order. That order does not permit him to sign for RESP withdrawals.

Analysis

a. RESP Account

[29] Justice Hockin made an order restraining the respondent from depletion of family assets on April 25, 2019. That included the RESP account. The respondent was self-represented on return of that motion. At the time, he was in default for failure to provide financial disclosure which is part of what Justice Hockin ordered.

[30] Although the respondent has since provided the ordered disclosure, the rationale for limiting the respondent’s access to and control over the RESP account remains. He has a long-standing problem with alcohol. He expended significant monies since the parties separated. His relationship with the children is estranged. He and the applicant cannot work together on even simple tasks like selling the matrimonial home.

[31] The respondent asks that he co-sign for payments out of the account. He will not have sole signing authority so he cannot abuse the account by inappropriate withdrawals. I am nevertheless concerned that the respondent will delay and frustrate the timely withdrawal of funds from the account to the detriment of Paige who is attending university. No such risk follows from the applicant having sole signing authority on the account. His request that he sign for all withdrawals from the account is denied.

[32] As a co-owner of the RESP account, he is entitled to know what monies have been paid out of the account, for what purpose and for which child. That applies to transactions since the order was made by Hockin J. and to future transactions. The applicant maintains that she has provided him with the password that allows him to see account activity. She does not oppose accounting to him for monies paid out of the account.

[33] I order as follows:

1. The applicant shall have sole signing authority for the RESP account.

2. The applicant shall provide to the respondent an accounting of all monies withdrawn from the account since April 25, 2019 to date, together with copies of receipts for payments made with those funds if not transferred directly from the fund to the school.

3. On an ongoing basis, the applicant shall notify the respondent promptly of monies withdrawn from the RESP including the purpose which the funds are being expended and provide a receipt evidencing same as soon as it is available.

4. The respondent shall be entitled to receive a written monthly statement of the RESP account from the institution holding the RESP at his expense.

5. The applicant shall ensure that the respondent is provided with an up-to-date password so that he can access and view the RESP account.

6. The respondent is not entitled to make any transactions involving the RESP account pending further order of the Court.

b. Spousal Support

[34] A court may make a final or interim order for spousal support in an amount it considers reasonable: s. 15.2(1) and (2) of the Divorce Act. In doing so, the court must take into consideration “the condition, means, needs and other circumstances of each spouse,” including

a. the length of time the spouses cohabited;

b. the functions performed by each spouse during cohabitation; and

c. any order, agreement or arrangements relating to support of either spouse: Divorce Act, s. 15.2(4).

[35] Misconduct of a spouse in relation to the marriage is irrelevant to spousal support: Divorce Act, s. 15.2(5).

[36] In Thompson v. Thompson, 2013 ONSC 5500, Madam Justice Chappel provides the following very useful summary of the principles that apply to a spousal support claim at paras. 46 – 52, 54 – 59:

[46] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.J. No. 107, and are circumscribed by that purpose. As L’Heureux-Dube J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” [para. 43] The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.

[47] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life (Metz v. Metz, 2004 ABQB 528, [2004] A.J. No. 925 (Alta Q.B.); supplementary reasons, [2004] A.J. No. 1558 (Alta. Q.B.); Bennett v. Bennett, 2005 ABQB 984, [2005] A.J. No. 1824 (Alta. Q.B.); Bockhold v. Bockhold, 2010 BCSC 214, [2010] B.C.J. No. 283 (B.C.S.C.)). A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits (Strang v. Strang, 1992 CanLII 55 (SCC), [1992] S.C.J. No. 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25 (S.C.C.)). The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, 2009 ONCA 569, 2009 CarswellOnt 4077, para 42, “self-sufficiency is a relative concept, it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage”. In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation. …

[48] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:

15.2(6) Objectives of spousal Support Order – An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[49] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount (Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14; Moge). However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties (Miglin v. Miglin, 2003 SCC 24, [2003] S.C.J. No. 21 (S.C.C.). With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S.(2011 SCC 64). It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouse within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable”. The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.

[50] In considering the objective of self-sufficiency, the court must recognize that this concept is a relative one which must take into account the parties’ standard of living during the marriage (Rioux, para. 42). The Ontario Court of Appeal emphasized in Fisher v. Fisher (2008 ONCA 11, 2008 CarswellOnt 43) and Allaire v. Allaire (2003 CarswellOnt 1002) that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the Court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.” (para. 53)

[51] The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dube, J. made this point in Moge v. Moge, where she stated that “the longer the relationship and worse, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution. (para. 84)

[52] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.

2. General Principles Respecting Entitlement

i. Overview of the Grounds For Entitlement

[54] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarize the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter (2008 CarswellBC 2661), the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.

ii. Compensatory Support

[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions (Moge, paras. 68-70). A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives (Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (C.A.).

[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be found on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education (Allaire), selling assets or a business for the benefit of the family unit (Jens v. Jens, 2008 BCCA 392, [2008] B.C.J. No. 1886 (C.A.), or assisting a party in establishing and operating a business that is the source of that party’s income (Chutter).

[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse (Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 35 R.F.L. (5th) 177 (C.A.); additional reasons at 2003 CarswellOnt 159 (C.A.)).

[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family (Cassidy; Allaire).

iii. Non-Compensatory Support

[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter as follows:

Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an independent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as of the “means and needs” approach to spousal support.

[37] The issues before me are:

1. Entitlement to spousal support.

2. Quantum of spousal support including consideration of whether the increases in her income since the date of separation should be taken into account, and imputation of income to him.

[38] There is simply no evidence on which to base a claim by the respondent for spousal support on a compensatory basis. I agree with the applicant’s counsel that if such a claim exists, it is one that she, not he, could assert on the evidence.

[39] As for non-compensatory spousal support, at the date of separation, the parties were both employed: the respondent on a full-time higher paying basis and the applicant on a lower paying part-time basis. Post-separation, the applicant moved into a full-time position to become economically independent of the respondent. He did not pay spousal support to her despite the disparity in their incomes at separation.

[40] The evidence on these motions do not show that the respondent suffered any economic disadvantage from the marriage or its breakdown. He worked full-time earning a significant wage before and immediately after separation. The loss of his job more than two years after the parties separated occurred as a consequence of his abuse of alcohol. I take from his evidence that he returned to work from disability on the understanding that he not consume alcohol. He knew that his compliance with that condition of employment was essential and was being monitored. He drank, failed a test and was let go.

[41] None of the objectives of spousal support in s. 15.2(6) of the Divorce Act are engaged on the evidence in this case. I note that there is no evidence of hardship from the marriage or its breakdown. There is no evidence as to the parties’ standard of living while married and his present standard of living. He was economically self-sufficient for at least two years post-separation.

[42] With respect to his need for spousal support, I observe the following from his August 20, 2019 Financial Statement:

a. At page 2, he indicates that he was last employed in June 2017. His Record of Employment says otherwise.

b. His 2018 income is stated to be $249,126.

c. At page 3, he indicates that his monthly income is $3,583 from RRSPs.

d. Although his counsel indicated that he had exhausted his RRSPs and had no funds left from same, at page 8, his Bank of Montreal chequing account shows a balance of $43,443. The note on page 8 beside this asset indicates that the account is in his name only and was opened post-separation.

e. At page 4, he shows no housing or utility expenses save for $100 for his cell phone.

f. He indicates that he spends $400/month on eating outside of the home, $500/month on alcohol and tobacco, and $250/month for vacations.

g. He is paying $1,000 per month for legal expenses.

h. In addition, he expends $400/month on gas and travel to London to meet with his lawyers. This amount is clearly excessive given the distance to London.

i. He pays $1,142/month for child support.

[43] As indicated at the outset of this decision, the respondent’s obligation to pay child support has been terminated for Ashley and suspended for Paige as of August 31, 2019. In addition, he will shortly receive $50,000 from the sale proceeds of the matrimonial home.

[44] It seems to me that for someone who has no employment, the respondent is spending significant monies for purely discretionary expenses such as eating out, alcohol and tobacco, and vacations.

[45] His monthly expenses total $6,163. That amount must be reduced by $1,142, the amount of child support. The discretionary expenses for eating out, alcohol and tobacco, and vacation total $1,150. That amount should be reduced by $1,000. As mentioned, the travel expense claimed to go to London to see his lawyer is excessive. I am quite familiar with that travel cost. I reduce the amount for that expense by $300. With those deductions, his monthly expenses are $3,727 – less than $200 more than his monthly income.

[46] Further, with respect to his income, I am not satisfied that the respondent has made meaningful efforts to find new employment since March 30, 2018. He has made a single job application and attended one job fair in 18 months. That is wholly inadequate especially given the lack of any evidence to explain why his efforts have not shown greater diligence.

[47] The respondent points to his long-standing problems with anxiety, depression and alcohol during the marriage and since its breakdown. He offers no medical evidence. He offers no evidence of what steps he has taken and is taking to address that illness.

[48] In Meissner v. Meissner, 2013 ONSC 5621, Fitzpatrick J. summarized the principles that apply to the imputation of income at paragraphs 34 – 37 as follows:

“34. The principles that apply in determining whether to impute income are the same in both child support and spousal support cases (see: Smith, Perino v. Perino, 2007 CanLII 46919 (ON SC), 2007 CarswellOnt 7171 (S.C.J.) and Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 (S.C.J.)). Income imputation is not strictly limited to the payor spouse. It may also be imputed to the recipient spouse (see Spousal Support Advisory Guidelines).

35. Income may be imputed in circumstances where an individual is intentionally under-employed or unemployed (see: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.) and Section 19(1) of the Guidelines.

36. Prior to a court imputing income to a party under section 19(1), they must undertake the three-part analysis set out by the Court of Appeal in Drygala (2002). Specifically, a court must ask itself:

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

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

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

37. In Smith v. Smith, 2012 CarswellOnt 3113 Justice Chappel outlined the relevant factors for determining whether to impute income as follows:

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

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

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

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

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

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

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

[49] The respondent held a responsible position for many years as an operator engineer. That is a skilled position as is reflected in the income it produced. There is no evidence to explain the respondent’s lack of effort to find new employment. On what is before me, I conclude that he is intentionally unemployed.

[50] In arguing for spousal support, counsel for the respondent put forward a minimum wage imputation of income. In my view, that amount is inadequate having regard to his past employment and skills. I would impute a minimum income of $85,000/year.

[51] Thus, whether approached from a needs or means basis, no spousal support should be paid to the respondent. It is unnecessary to determine whether to use the applicant’s income at the date of separation or at present.

[52] In summary, the evidence does not support a claim for interim spousal support payable by the applicant to the respondent.

[53] The respondent relied on the trial decision of Aston J. in Cammaroto v. Cammaroto, 2015 ONSC 3968. That case is factually distinguishable. The husband was 64 years old. There was medical evidence of his health issues. He had not worked for 15 years.

[54] The respondent’s motion for interim spousal support is dismissed.

[55] If the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 15 days hereof.

Justice R. Raikes

Date: September 10, 2019