ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS 43/16

DATE: 2019/12/12

B E T W E E N:

Claudette Emily Elliot Hawkins

Self-represented

Applicant

• and -

Coby William Hawkins

Respondent

Bruce Macdonald

for the Respondent

HEARD: November 18, 19, 20, 2019

The Honourable Justice N. Gregson

REASONS FOR JUDGMENT

[1] The Applicant mother, Claudette Emily Elliot (Hawkins) commenced a court application in May 2016 seeking various corollary relief against the Respondent father, Coby William Hawkins. The father filed an Answer responding to the court application and made his own counter claims including a claim for a divorce.

ISSUES TO BE DETERMINED AT TRIAL

[2] The parties resolved all parenting and property issues. The only issues for trial dealt with support as follows:

1. Whether the court should impute income to the mother;

2. Retroactive and ongoing child support;

3. Retroactive and ongoing section 7 expenses;

4. Retroactive and ongoing spousal support; and

5. Life insurance and benefits

SUMMARY OF THE EVIDENCE

The relationship

[3] The parties met in London, Ontario sometime between 1996 and 1998. At the time, the mother was working for the Labatt Corporation doing security on weekends and worked as a Swing Manager for McDonald’s where she had worked since the age of 15. The father worked part-time as a bank teller with Canada Trust. According to the mother, the parties met December 1, 1996 and entered into a one-year lease on August 1, 1997 and this is when they began cohabiting. As proof of same, the mother supplied a life insurance policy with Primerica on the father’s life in the face amount of $200,000.00. The spouse designation noted on the policy fact sheet dated June 6, 1997 was the mother’s name.

[4] The father’s Answer noted the couple met in 1998. He testified thereafter they signed a lease for an apartment in London, Ontario. The father further testified he lived alone in the apartment as the mother secured employment with Honda of Canada Manufacturing (“Honda Canada”) in Alliston, Ontario and immediately left living with family in the Barrie, Ontario region. According to the father, he and the mother began living together in 1998 once he could obtain a bank transfer to join the mother. In reply to this claim, the mother testified she and the father became engaged over the Christmas holidays in 1997 and he had indeed noted her as a “spouse” on the life insurance policy prior to 1998.

[5] The mother testified she secured a position with Honda Canada in Alliston, Ontario on March 9, 1998 and worked there full-time until September 3, 2009. The couple purchased their first home in August 1998 in Barrie, Ontario. Although the father had initially obtained a transfer to Orillia, Ontario within one year, he secured work at a Canada Trust branch in Barrie in the Financial Services Department.

[6] The parties were married on May 15, 1999.

[7] At the beginning of their marriage, the mother was the major breadwinner although the father began to secure better positions and more lucrative opportunities with the bank over the years.

[8] The parties have two children of the marriage, namely, Gabriel Hawkins, born January 18, 2001 (age 18) and Ethan Hawkins, born January 22, 2003 (age 16).

[9] Sometime after the children were born, the parties moved to Wasaga Beach as the father secured employment as the Branch Manager for TD Canada Trust. He was eventually transferred to their flagship branch in Collingwood, Ontario although they remained living in Wasaga Beach. The mother continued to commute for her employment at Honda Canada.

[10] In 2009, the mother ceased her employment with Honda Canada. The family came to a decision the mother should take a buyout which was being offered to employees at the time. During his evidence, the father testified Honda Canada was slowing down and offering buyouts to their employees. He and the mother agreed for her to take the buyout. The father further testified the couple knew that for advancement opportunities in the banking industry they would have to move and it made sense for the mother to cease her employment at that time. In fact, shortly thereafter in late 2009, the family moved to Acton, Ontario for the father’s work.

[11] According to the mother, she was never asked to find work once she left her employment with Honda Canada and she stayed home to care for the children. The father testified he wanted the mother to work considering her age and the ages of their children. The father stated it was the mother who simply chose not to do so. They both testified and agreed that while in Acton, Ontario the father arranged for the mother to obtain a position as a bank teller. The mother did training and worked for a few months but resigned shortly thereafter as her mother became seriously ill and eventually passed away. The mother never worked again outside of the home.

[12] The family moved 14 months later from Acton, Ontario to Fonthill, Ontario in August 2011 to permit the father to take on the role of District Vice President for the bank.

[13] The parties separated on or about April 12, 2015.

[14] The mother was 42 years of age at the date of separation. She is presently 47 years old. The father was 40 years of age at the date of separation and is now aged 44.

[15] The couple continued to reside separate and apart in the matrimonial home after their separation. Evidence by both parties suggested they had agreed early on they would parent the children on a week-about basis. As such, each parent took turns to stay elsewhere, as much as possible, when it was the other parent’s time with the children.

[16] The mother suggested she continued to primarily care for the children as the father was often away for work purposes which was disputed by the father.

[17] The father eventually moved out of the matrimonial home nearly one year later on March 1, 2016.

[18] From the time of separation in April 2015 to May 2016 when the matrimonial home sold, the father paid for all household expenses and expenses related to the children. The father testified these expenses were in excess of $5,000.00 per month.

[19] In August of 2015, the father conceded he removed the mother from all bank accounts, credit cards and line of credit which limited the mother’s access to financial funds. The father testified he removed the mother off all accounts as he had to ensure his accounts were in good standing due to his banking position. It was the father’s evidence the mother’s personal financial needs were met. The mother testified she often went without including basic personal necessities

[20] The parties sold the matrimonial home on May 31, 2016. At that time, the father was living in his newly purchased home and the mother moved into a rental home.

[21] From the time the father vacated the matrimonial home in March 2016 until October 2017, the children shared their time equally between the parties on a week-about basis.

[22] According to the father, as of June 1, 2016 he began to voluntarily pay child support to the mother in the amount of $2,010.00 per month but paid no spousal support. The father testified he wanted to pay spousal support but required an agreement from the mother in order to obtain the tax deduction benefit, but she refused to sign same. The mother testified she followed the advice of her legal counsel at the time and refuted receiving the full amount of child support claimed by the father.

[23] On December 7, 2016 a consent temporary order was made to have the father pay child support in the amount of $2,333.00 per month and $2,998.00 per month in spousal support commencing November 1, 2016.

[24] The children began residing with their father on a full-time basis on or about October 23, 2017 and have had no further contact with their mother. Gabriel is now attending his first year of post-secondary education at Niagara College but maintains his residence with his father.

[25] The mother has not paid child support to the father since October 2017 when the children began to live exclusively with their father nor contributed towards any of the children’s section 7 expenses.

[26] A consent order was made on December 8, 2017 which terminated the father’s obligation to pay child support to the mother and fixing spousal support at the sum of $3,400.00 per month. The order was made without prejudice to any party’s right to claim retroactive adjustments to child and spousal support.

[27] The Office of the Children’s Lawyer became involved in this matter in January 2018. The children’s legal counsel confirmed the children wished to reside exclusively with their father and have no access with their mother. The custody and access issues were resolved by a consent order dated August 17, 2018 in line with the children’s views and preferences. Both boys are working part-time while attending school. The father testified that all of the boys’ financial needs are being met solely by him.

[28] There was evidence produced suggesting the mother was often crossing the border into the United States as of 2016 and especially in 2018. The mother indicated that despite same, it never hampered her search for employment. The mother testified that when she did not have appointments or work, she would regularly go across the border to stay with friends for emotional support. The mother also testified it was difficult for her to remain in the Niagara Region where her children were residing without having contact with them.

[29] The parties were divorced on November 1, 2018.

[30] The mother purchased a home in Jamestown, New York on February 11, 2019 for approximately $35,000.00 U.S. which requires extensive renovations.

[31] The equalization of net family property was finalized on March 25, 2019 on the consent of the parties.

Employment and Income information

[32] The mother testified she believed her marriage was strong and was surprised by the separation. Her life changed dramatically thereafter and as a result, she was depressed.

[33] The mother previously graduated from Georgian College in June 1994 from the Law and Security Program. She has essentially been out of the workforce since September 3, 2009. The mother testified she attempted to look for work. She worked at the children’s school on occasion during the 2016 school year as lunch monitor. The mother also secured seasonal employment with the LCBO during the 2016 Christmas holidays.

[34] After the matrimonial home sold in May 2017, the mother testified she attended an information session at Niagara College. She was advised her previous diploma was outdated and none of the courses would apply towards a new post-secondary program. She completed a Strongman Assessment to determine her strengths and decided to pursue nursing. However, since she required grade 12 math and science, she had to take upgrading courses.

[35] The mother attended and completed a 20-week Adult Computer and Business Program through the District School Board of Niagara from February 6, 2017 to June 22, 2017.

[36] Thereafter, the mother attended Niagara College to complete upgrading courses to meet the requirements to apply to the Practical Nursing Program. The mother noted she enrolled with Niagara College and attended her first day on September 11, 2017. Shortly thereafter, the mother began not seeing her children. She testified that no longer having contact with her sons was a devastating event for her. She could no longer cope with her studies and quit in November 2017. The mother testified she met with her doctor and attended counselling and continued looking for work.

[37] The mother testified she secured work at the Lookout Ridge Retirement Home on April 20, 2018; however, the employment was suddenly cancelled on May 2, 2018. The mother secured seasonal work with Edge Imaging during the Fall of 2018. Thereafter, she secured work for one month as of November 26, 2018 with United Floral Distributors.

[38] Once the mother relocated to Jamestown, New York in February 2019 she attended a job fair for Runnings and secured a position as a Department Supervisor which commenced on June 20, 2019. She presently continues to work full-time for this employer earning $14.00 per hour (U.S.), less the cost of benefits. As this is a new store, the mother indicated there was initially a lot of overtime to prepare the store for its grand opening on October 10, 2019. She expected the overtime to be minimal in the future. The mother confirmed that if she were to work full-time (40 hours per week) with no overtime and no vacation time, she would earn about $34,000.00 - $35,000.00 Canadian gross per year (using a conversion rate of 1.2665).

[39] The mother is now involved in a new relationship. Her partner resides in Randolph, New York. They are not residing in a common law relationship at this time although they spend a considerable amount of time together as her new home needs ongoing renovations.

[40] The mother tendered as evidence efforts of her search for work namely, a form document from Job Gym with handwritten notations outlining an extensive array of positions she has applied for since separation and whether she had received an interview. Counsel for the father made it clear they had requested, during the course of the litigation the actual printed applications and responses.

[41] The following has been the mother’s gross annual income since separation as per her Notices of Assessment:

2012: Nil

2013: Nil

2014: Nil

2015: $11,383.00 (Separated April 2015)

2016 $11,641.00 ($5,996.00 received in support payments and $4,943.50 from RRSP)

2017: $34,328.84 ($33,509.47 received in support payments)

2018: $47,670.00 ($40,800.00 was from support payments)

2019: Estimate from June to December 2019: $19,000.00 to $20,000.00 Canadian from her new employment with Runnings

[42] The father was married on June 28, 2019. He and his wife live together with the children, Gabriel and Ethan. His wife’s 19-year-old son also spends a considerable amount of time staying with them as well. The father’s wife also works in the banking industry and earns about $100,000.00 gross per annum.

[43] The father’s gross annual income since separation is as follows as per his Notices of Assessment:

2012: $148,735.00

2013: $155,427.00

2014: $179, 108.00

2015: $209,183.00

2016: $194,927.98

2017: $208,050.44

2018: $208, 973.42

2019: Estimated at $215,407.00

LAW AND ANALYSIS

Imputation of Income to the Mother

[44] The father believes the mother is intentionally under-employed/unemployed. He argued the mother has an extensive work history, valuable skills and abilities, has a college diploma and was only 42 years of age upon separation.

[45] The father seeks to impute the mother a gross annual income of $30,000.00 which is slightly over full-time minimum wage commencing November 1, 2017. This date coincides with when the children began to live full-time with the father. The father also argued the mother would have had well over two full years since separation to re-educate herself or find employment.

[46] The mother is agreeable to commence paying ongoing child support since she was able to secure full-time employment in June 2019. She opposed any imputation on the basis that she did attempt to re-educate herself and took steps to secure employment. She noted that when she was offered employment, although of limited duration, she accepted same.

[47] The mother also argued the end of her marriage took her by surprise and the situation with her children led her to feel depressed and anxious and on occasion, she struggled with her emotions. She noted having attended to see her physician and taking medication. There was no expert evidence provided to suggest she was physically or emotionally unable to secure full-time work.

[48] Parents have a joint and ongoing legal obligation to support their children. Section 26.1(2) of the Divorce Act states that:

26.1 (2) The [Federal Child Support] Guidelines shall be based on the principle

that spouses have a joint financial obligation to maintain the children

of the marriage in accordance with their relative abilities to contribute

to the performance of that obligation.

[49] Section 19(1)(a) of the Federal Child Support Guidelines allows the court to impute such amount of income to a parent as it considers appropriate in the circumstances. One of the circumstances is that the parent is intentionally under-employed or unemployed:

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.

[50] Accordingly, on occasion the court may impute income to give effect to the legal requirement that a parent must earn what the parent is capable of earning. There must be an evidentiary basis to attribute or impute income under s. 19(1).

[51] Section 19(1) of the Guidelines requires that before income can be imputed, the court must find that the parent is intentionally under-employed or intentionally unemployed. The seminal Ontario appellate case dealing with the unemployed or under-employed support payor continues to be Dryagla v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711. Justice Gillese noted the trial judge correctly observed that in order to find intentional under-employment and impute income to a parent, there is no need to find a specific intent to evade child support obligations. He also noted that in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.

[52] Justice Gillese clarified there is no requirement of bad faith or intention to evade child support obligations to impute income. The word “intentionally” means “voluntary”. The initial onus is on the support recipient to prove that a support payor is voluntarily intentionally under-employed or unemployed. Once that onus has been met, and the court determines this issue in the affirmative, the onus shifts to the payor to establish a valid reason for his under-employment or unemployment.

[53] General principles relating to capacity to earn income was outlined in a paper by Dr. Julien D. Payne, Imputing Income, “Determination of Income; Disclosure of Income”, Child Support in Canada, Danrab Inc., August 3, 1999 which principles have been confirmed in Hanson v. Hanson, 1999 6307 (BC SC), [1999] B.C.J. No. 2532 and relied upon in LePage v. Porter, 2000 22516 (ON SC), [2000] O.J. No. 2574 as follows:

1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. “It is no answer for a person liable to support a child to say he or she is unemployed and does not intend to seek work or that his/her potential to earn income is an irrelevant factor.”

2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

4. Persistence in unremunerative employment may entitle the court to impute income.

5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

6. As a general rule, a parent cannot avoid child support obligations by a self-reduction of income.

[54] Having reviewed the above general principles and the evidence in this matter, I have concluded that I will not impute an income to the mother and will rely on her actual earned gross annual income for child support calculations.

[55] I felt the mother was a credible and reliable witness during her evidence. Although one would have hoped the mother would have been able to re-educate herself or secure minimum wage employment by 2017 (two years after separation) to support her children, I believe considering the circumstances, the mother made consistent efforts to do so. The court’s discretion must be grounded in the evidence.

[56] I accept the mother’s handwritten document outlining the numerous employment opportunities she applied for over the years. The mother did attend job fairs and for interviews when granted. In fact, she did work when she was able to secure employment. The mother did also work with vocational counsellors at Niagara College in an attempt to go back to school. She did complete some programming. Unfortunately, the mother was not emotionally competent to complete her program. Accordingly, considering what is reasonable in the circumstances and having regard to factors often considered such as the availability of job opportunities, age, education, experience, skills and health, I cannot conclude the mother is intentionally unemployed or under-employed.

[57] I accept that the mother relocated to Jamestown, New York where she was able to secure work on a full-time basis earning $14.00 per hour (U.S.) and that it is her intention to maintain this employment and pay child support for her children.

Retroactive Child Support

[58] The father provided a calculation from October 2017 to December 2019. He noted his gross annual income each year. He imputed the mother a gross annual income of $30,000.00 from October 2017 to June 2019. Thereafter, he imputed the mother a gross annual income of $40,691.00 for the months of July to December 2019 based on an estimate of her annualized income from two pay stubs supplied by the mother. A calculation over this period based on the father’s calculations has the mother owing him the sum of $13,233.00.

[59] In contrast, the mother seeks retroactive child support from the father for the period of June 1, 2016 to November 1, 2016 for a total of $1,615.00 noting she did not receive full child support payments for this time period. It was during this time frame, the matrimonial home had sold and both parties were living in their own residences, sharing the children on a week-about basis.

[60] Since I have declined to impute an income to the mother for the years 2017-2018 and her actual income is below the threshold of the Federal Child Support Guidelines, the mother owes no child support for this time frame. However, once she secured full-time employment in June 2019, she should have commenced paying child support to the father. Although an extrapolation of two of her paystubs suggests a possible gross annual income of $40,691.00 Canadian for 2019, in my view, she should only be liable to pay child support based on her estimated actual income for 2019. Since she will have only worked for about one half of the year, I anticipate she will earn approximately half or $20,345.50 for the 2019 taxation year. As such, the mother will be liable to pay child support in the amount of $315.00 per month to the father from June 1, 2019 to December 1, 2019 or a total amount of $2,205.00.

[61] I accept the father’s evidence that he provided the mother with voluntary child support payments for the months of June to October 2016. Accordingly, there will be no retroactive child support owing by the father to the mother.

Ongoing Child Support

[62] The father seeks to have the court impute an income to the mother in the amount of $40,691.00 Canadian. This would provide a monthly child support obligation owing by the mother to the father in the amount $606.00 per month.

[63] In my view, the mother should pay child support for the two children of the marriage in accordance with section 3 (1) of the Federal Child Support Guidelines which states:

3(1) Unless otherwise provided under these Guidelines, the

amount of a child support order for children under the age of

majority is

(a) the amount set out in the applicable table, according

to the number of children under the age of majority to whom the order

relates and the income of the [parent or] spouse against

whom the other is sought; and

(b) the amount, if any, determined under section 7

[64] I note that Gabriel is now 18 years of age. Paragraph 3 (2) of the Guidelines states the following:

3 (2) Unless otherwise provided under these Guidelines,

where a child to whom a child support relates is the age

of majority or over, the amount of the child support order is,

(a) the amount determined by applying these Guidelines

as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate,

the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each [parent or] spouse to contribute to the support of the child.

[65] Section 3 (3) of the Federal Child Support Guidelines creates a presumption in favour of the table amount being ordered and the party seeking to deviate from that approach bears the onus of rebutting the presumption. No such request was made.

[66] I see no reason why the mother should not pay child support for both boys in accordance with the table amount of the Federal Child Support Guidelines despite the fact Gabriel is now 18 years old.

[67] I have deemed the mother’s estimated gross annual income to be $38,000.00 Canadian for the year 2020 taking into account that she may earn some overtime but not as much as she may have earned in 2019 due to the grand opening of the store. Accordingly, the mother shall pay the sum of $571.00 per month in child support commencing on January 1, 2020 based on the table amount of the Federal Child Support Guidelines for the Province of Ontario (as the mother now lives outside of Canada).

Section 7 Expenses

[68] The father seeks the following contribution by the mother towards the following expenses:

Ethan 27% or $810.00 towards hockey and equipment totaling $3,000.00 in 2017/18

Ethan 27% or $741.48 towards hockey and equipment totaling $2,746.21 in 2018/19

Ethan 27% or $810.00 towards hockey and equipment totaling $3,000.00 in 2019/20

Ethan 27% or $87.75 for E.L. Crossley 2018 in the amount of $325.00

Boys 27% or $510.03 for driver’s education in the amount of $1,889.00

Gabriel 27% or $186.30 for his driver’s licence in the amount of $690.00

Gabriel 27% or $74.25 towards glasses in the amount of $275.00

Boys 27% or $1,583.55 for cell phone monthly expense ($255.00 x 23 – 2018 and 2019) in the amount of $5,865.00

Gabriel 27% or $648.00 for hunting licence, registration and clothing in the amount of $2,400.00

Gabriel 27% or $1,755.50 for a car in the amount of $6,500.00

Gabriel 27% or $56.70 for his 2019 licence plate sticker in the amount of $210.00

Ethan 27% or $50.34 for 2019 soccer equipment in the amount of $186.43

Ethan 27% or $40.50 for 2910 E.L. Crossley hockey in the amount of $150.00

Ethan 27% for Apex driving school (2nd attendance in the program) and licence 2019 in the amount of $869.00.

[69] According to the father, the s.7 expenses he is claiming from 2017 onwards total

the sum of $28,105.64 on a retroactive basis and the mother’s proportionate share at 27% (if her income was imputed at $30,000.00 Canadian) would be the sum of $7,588.52 owing to the father.

[70] The mother does not feel she should contribute towards these expenses

considering her lack of income and the father’s household income in excess

of $300,00.00. She also noted that specific itemized invoices were not produced.

The mother testified she was never advised of these expenses in advance of these expenditures and her consent was never sought.

[71] Section 7(1) and 7 (1.1) of the Federal Child Support Guidelines states:

7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses …

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b)that portion of the medical and dental insurance premiums attributable to the child;

(c)… $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

7(1.1) For the purposes of paragraphs 1(d) and (f), the term extraordinary expenses means:

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account,

i. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

ii. the nature and number of the educational programs and extracurricular activities,

iii. any special needs and talents of the child or children;

iv. the overall cost of the programs and activities, and

v. any other similar factor that the court considers relevant.

[72] An order for contribution to special or extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and the amount. In Titova v. Titova 2012 ONCA 864 , the Ontario Court of Appeal established the following considerations:

1. Does the expense fall within the listed special or extraordinary expenses?

2. Is the expense necessary in relation to the children’s best interests?

3. Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?

4. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?

[73] The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695, (Ont. C.A.).

[74] To determine reasonable and necessary the court in Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) and Correia v. Correia, 2002 MBQB 236 stated the following factors should be taken into consideration:

1. The combined income of the parties;

2. The fact that two households must be maintained;

3. The extent of the expense in relation to their combined income;

4. The debt of the parties;

5. Any prospect for a decline or increase in the parties’ means in the near

future; and

6. Whether the non-custodial parent was consulted about the expenses

before they were incurred.

[75] The court may consider the parties’ capital assets, income distribution, debts, third party resources, access costs, support obligations, receipt of support and any other relevant factor. See Delichte v. Rogers, 2013 MBCA 106. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. (See Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ).

[76] In my view, the hockey and equipment expenses outside of high school hockey for the boys would qualify as an extraordinary expense that would not be reasonably covered by the father’s income and any child support payment. The high school hockey costs, summer soccer, driver’s education, hunting expenses and cell phone expenses would not be deemed as extraordinary considering the father’s gross annual income despite the fact these expenses all appear to be in the children’s best interests.

[77] The expense of the eyeglasses for Gabriel which are not covered by the father’s employment benefits would appropriately qualify as a section 7 expense.

[78] However, I accept the mother’s evidence that she was never notified of these expenses in advance of the expenditure and her consent was never obtained. Moreover, the mother had no ability to pay to contribute to these expenses as she had limited income. Moving forward, the father will need to provide the advance cost of any proposed section 7 expense to the mother and obtain her consent for the proposed expense if he seeks for her to contribute her proportionate share.

[79] Accordingly, the mother does not owe any retroactive payment to the father for the section 7 expenses he was seeking.

Retroactive Spousal Support

[80] If the father was successful in his claim to have the mother’s income imputed at

$30,000.00 per year from October 2017 to June 2019 and at $40,691.00 from July to December 2019 using the mid-range calculations of the Spousal Support

Advisory Guidelines and calculating what he paid and what he should have paid,

the father felt he has overpaid the sum of $35,085.00 in spousal support. The

father seeks reimbursement of this amount from the mother. The father was not successful in imputing income to the mother. The mother does not owe any retroactive payment to the father for any overpayment.

[81] The mother seeks retroactive spousal support for herself in the amount $14,900.00 for the period of June 1, 2016 to October 1, 2016 noting she never received spousal support during this period of time (from the sale of the matrimonial home in May 2016 to the date of the first temporary order dated December 7, 2016 which ordered payment of $2,998.00 per month in spousal support as of November 1, 2016). The father argued he wanted to pay spousal support at that time but the mother refused to implement it in an agreement to permit him a tax deduction.

[82] The evidence did suggest the father had wanted to provide spousal support to his wife for the time frame requested by her. There was no valid reason for the mother or her counsel not to provide the appropriate agreement to get funds flowing into the hands of the mother. In my view, considering the prejudice which would now be incurred by the father in paying this sum to the wife at this time, would not be appropriate. Having regard to the fact the father has not received child support from the mother and he has paid for all of the children’s expenses since 2016, there will be no retroactive spousal support payment owing from the father to the mother.

Ongoing Spousal Support

[83] The father provided a Spousal Support Advisory Guideline calculation. He noted a gross annual income of $215,407.00 for himself and $40,691.00 for the mother. Pursuant to same, the mother would be obligated to pay child support in the amount of $606.00 per month. According to the Spousal Support Advisory Guidelines based on these figures, the low range of monthly spousal support would be at $2,152.00, mid-range at $2,511.00 and a high range of $2,870.00. Support would be for a duration of 8 to 16 years from the date of separation subject to variation and possibly review.

[84] The father seeks to have spousal support in the mid-range at $2,511.00. He noted the parties were married for 16 years and as such it would not be deemed to be a long-term marriage. Furthermore, the mother was only 42 years of age when they separated.

[85] Based on the father’s calculation, the mother seeks to have spousal support at the high range. She noted the parties had been married for a considerable amount of time and had two children. She also noted that she had left her work with Honda Canada and the family relocated permitting the father to improve his career while she was a stay at home mother.

[86] The statutory basis for an award of spousal support is set out in Subsection 15.2(4) of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp), as amended. I am mindful of the objectives of spousal support as stipulated in s. 15.2(6) of the Divorce Act and as enunciated in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 and Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 as follows:

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

(2) 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;

(3) relieve any economic hardship of the spouses arising from the breakdown of the marriage, and

(4) … promote the economic self-sufficiency of each spouse within a reasonable period of time.

[87] No single objective is paramount; all must be borne in mind.

[88] The court must also consider the factors set out in s. 15.2(4) of the Divorce Act and consider,

the condition, means, needs and other circumstances of each spouse, including

a) the length of time the spouses cohabited;

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

c) any order, agreement or arrangement relating to support of either spouse.

[89] As was noted at paragraph 78 in Moge, supra:

The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage [page 867] or its termination which adversely affect the economic prospects of the disadvantaged spouse. Not all such elements will be equally important, even if present, to the awarding of support in each case. However, it may be useful to canvass some of the most common compensable advantages and recognized disadvantages which the Act envisages. They are not to be taken as exhaustive but only as examples of some of the losses and gains one spouse, usually the wife, incurs and confers which may be useful for the courts to consider in the exercise of their discretion.

[90] Clearly, the mother is entitled to spousal support and the father has the ability to pay. I base this on the following factors:

1. The income disparity between the parties;

2. The drop in the standard of living for the mother;

3. Economic hardship and disadvantages from the marriage;

4. The mother was a stay at home mother and did not work outside of the home for approximately seven years prior to the separation;

5. The parties’ moves to permit the father more lucrative opportunities/career

advancement; and

6. The length of cohabitation/marriage

[91] In regard to the duration of cohabitation, I am inclined to agree with the evidence tendered by the mother and accept that same commenced in 1997. It makes no sense that the father did not meet the mother until 1998 or live with her, when information had been provided about her to his insurer back in 1997. For these reasons, I view the relationship as being 17.5 years (August 1997 to April 2015).

[92] The main argument between the parties was not entitlement but rather the quantum that should be paid by the father to the mother.

[93] I have performed a Spousal Support Advisory Guidelines calculation using a gross annual income for the father at $215,407.00 and $38,000.00 for the mother. I have included the children as being ages 18 and 16, the fact the mother was 42 at the time of separation, a $2,000.00 figure for special expenses in favour of the father and 17.5 years for cohabitation. Using this calculation, the range appears to be $2,389.00 for the low range, $2,787.00 for the mid-range and $3,185.00 for the high range.

[94] Considering the above noted factors, I believe it to be appropriate for the father to pay spousal support to the mother in the amount of $2,986.00 per month commencing January 1, 2020 and continuing on the 1st of each subsequent month thereafter. This is, of course, subject to any material change in circumstances in the future.

Life Insurance

[95] The father continues to maintain his life insurance policy for $200,000.00 with Primerica. He testified he has maintained the mother as his sole beneficiary. In order to secure his obligation to pay spousal support, he will be required to maintain this designation for so long as he is required to pay spousal support to the mother.

[96] In the event the mother has life insurance available to her through her employment she shall designate the children as her sole beneficiaries to secure her child support obligation until such time as she no longer has to pay child support.

[97] ORDER

1. Commencing January 1, 2020 and on the 1st of each subsequent month, the mother shall pay the father the sum of $571.00 in child support for the children of the marriage namely, Gabriel Hawkins, born January 18, 2001 and Ethan Hawkins, born January 22, 2003, based on the mother’s estimated gross annual income for 2020 of $38,000.00 Canadian and the table amount of the Federal Child Support Guidelines for the Province of Ontario.

2. The mother owes child support arrears to the father for the period of June 1, 2019 to December 1, 2019. These child support arrears shall be fixed in the amount of $2,205.00. The mother shall pay the sum of $100.00 per month towards these arrears commencing January 1, 2020 and on the 1st of each subsequent month until the arrears are paid in full.

3. The father shall provide the mother with proof of the children’s enrollment in a post-secondary educational program each year by October 1st.

4. The father shall immediately notify the mother once a child is no longer attending a full-time program of education.

5. In the event the father wishes for the mother to contribute to any section 7 expenses for the children which shall be in proportion to their incomes, he shall provide the mother with advance proof of the expenditure and obtain her consent for same, such consent not to be unreasonably withheld.

6. The father shall pay spousal support to the mother in the amount of $2,986.00 per month commencing January 1, 2020 and continuing on the 1st of each and every month thereafter.

7. The father shall continue to maintain the mother as his sole irrevocable beneficiary on his private life insurance policy with Primerica having a face value of $200,000.00 which was in existence at the time of separation until such time as he no longer has to pay spousal support.

8. The father shall be prohibited from changing the designation of insurance as set out above and shall be required to pay the insurance premiums as they come due and shall further be prohibited from borrowing against or otherwise depleting the benefit under this policy.

9. The mother shall maintain the children as her sole beneficiaries on any life insurance policy made available to her through her employment until such time as she no longer has an obligation to pay child support.

10. The parties may request annual proof they have continued to maintain their life insurance policies in good standing.

11. The mother shall designate the children of the marriage as beneficiary to all extended health, dental and drug coverage available to her through employment at no cost until such time as she no longer has to support the children.

12. The parties shall exchange a copy of their income tax return and Notice of Assessment for the prior taxation year every June 1st.

13. There shall be the usual Support Deduction Order and interest clause as well as the enforcement of the child and spousal support by the Family Responsibility Office.

[98] COSTS

If the parties are unable to resolve the issue of costs, they may make written

submissions to the court. The party seeking costs is to serve and file their submissions

no later than 30 days from the date of this order and the responding party’s submissions

are to be served and filed no later than 30 days thereafter.

Gregson J.

Date: December 12, 2019

COURT FILE NO.: FS 43/16

DATE: 2019/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Claudette Emily Elliot Hawkins

Applicant

• and -

Coby William Hawkins

Respondent

reasons for judgment

Gregson, J.

Released: December 12, 2019