Collins v. Nowosad, 2019 ONSC 755

COURT FILE NO.: FC-15-374

DATE: 2019/01/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Theresa Mary Collins

Applicant

– and –

Paul Nowosad

Respondent

Michael Rappaport for the Applicant

Self-represented

HEARD: January 28, 2019

(at Ottawa)

REASONS FOR JUDGMENT

SHELSTON J.

Overview

[1] This trial took place on January 28, 2019 and the only witnesses were the applicant and the respondent. The issues were table child support, spousal support and costs.

[2] The parties had settled the issues of custody and access on October 4, 2018 by final order of Justice Audet. At that time, Justice Audet placed the matter on the January 2019 trial sittings to address the issues of child and spousal support. Further, she ordered that each party file a detailed affidavit setting out their factual assertions and that each party would be permitted a short examination-in-chief subject to cross-examination.

[3] The applicant commenced an application on April 8, 2015 seeking custody, child support, spousal support, indexation of spousal support, retroactive spousal support to September 1, 2013 and costs.

[4] On February 5, 2016, Justice MacKinnon, at a case conference, ordered the respondent to pay to the applicant child support on an interim without prejudice basis in the amount of $335 per month commencing February 1, 2016.

[5] On January 18, 2018, Justice Linhares de Sousa ordered the respondent to pay to the applicant that commencing February 1, 2018, table child support of $723 per month and spousal support of $253 per month based on the parties’ incomes and the mid-point of the Spousal Support Advisory Guidelines (“SSAG”).

Credibility

[6] Both parties testified and were subject to cross-examination. I find that, at times, both parties were credible and at other times, not credible. In making my decision, I have made findings of fact based on whom I believe was credible on the specific issue that was being addressed.

[7] Both parties had difficulty remembering dates and events. Both parties failed to provide written corroborative evidence such as emails and neither party brought other witnesses to support their version of events.

Facts

Applicant’s history

[8] The applicant was born on September 24, 1960 and is currently 58 years of age. She is employed with the Corps of Commissionaires as a security guard.

[9] The applicant graduated from high school in Montreal and took a few college courses. She started working with the Bank of Montreal in 1983. In 1987, she was transferred to Toronto and remained with the bank until 2000. She worked in various positions throughout her employment with the Bank of Montreal. In 2000, she moved to work with Moneris Solutions effectively doing the same work she was doing with the Bank of Montreal.

[10] After the birth of Dakota on December 25, 2003, the applicant went on maternity leave until February 2005 when she returned to her employer at which point the child was placed in daycare. She remained with her employer until March 2009 when she moved to Ottawa.

[11] While employed with Moneris Solutions, the applicant was entitled to a salary of between $45,000 and $48,000 per year and employment benefits including a pension. Prior to moving, the applicant inquired if she could be transferred from Toronto to Ottawa but there was no job available. When she left to move to Ottawa, she received a lump sum amount for her pension.

[12] After moving to Ottawa, the applicant received unemployment insurance benefits. She considered going back to school and was accepted in the law clerk program through an employment insurance program. However, the program was terminated. The applicant applied for over 20 jobs and took French courses. Starting in August/September 2010, the applicant worked at the Bay in the evening.

[13] In November 2010, she found employment with the Corps of Commissionaire in human resources on a contract position. Her contract ended in January 2012 and within a month she had obtained employment with the Corps of Commissionaires as a security guard.

[14] In February 2016, she started to work in headquarters for six months and then was let go. She then found employment as a security guard where she continues to work today earning approximately $39,850 per year.

Respondent’s history

[15] The respondent was born November 2, 1967 and is currently 51 years of age. He has been employed with Health Canada since March 3, 2009. He is a full-time employee entitled to salary, extended health benefits and a pension.

[16] When the parties met, the respondent was a graduate student at York University where he obtained his Master’s degree in 1995. He then pursued a PhD program but never completed it. While pursuing his PhD, the respondent worked as a teacher’s assistant.

[17] For approximately one year, the respondent was employed with Statistics Canada as an interviewer in a contract position.

[18] In 2001/2002, the respondent started working on a full-time basis for the city of Toronto driving a recycling truck. He was not part of the union and was not entitled to benefits. He worked in a full-time basis until January, 2009 when he started working as a correctional officer.

[19] During his tenure at the city of Toronto, the respondent took a course to become a correctional officer as the respondent hoped to become a parole officer. In January 2009, he was hired as a correctional officer near Kingston. During the week, he lived in a hotel and would return home to Toronto on weekends. During this period of time, the applicant was the main caregiver of the child.

[20] After starting to work as a correctional officer, the respondent attended an interview in February 2009 with Health Canada. He was subsequently offered a position with Health Canada that he accepted and started on March 3, 2009.

Date of cohabitation and separation

[21] The parties differ on the date they met, they date they started living together as well as the date of separation.

Date of cohabitation

[22] The applicant says that the parties started living together in September 1998 while the respondent testified that they started living together in September 2000.

[23] During her testimony, the applicant testified that she met the respondent in 1997 in Toronto when she was living with her sister as a co-owner of a house. She testified that the respondent had a room in a rooming house and that he moved in with her in September 1998. The applicant sold the residence in 1999 and moved with the respondent to an apartment in Etobicoke.

[24] The respondent testified that the parties met in 1998 when he was living in downtown Toronto in a rental unit. He was a graduate student at York University pursuing a PhD in sociology. The respondent testified that after the applicant sold her interest in the co-ownership with her sister, she moved into her apartment. The respondent moved in with her in September 2000.

[25] Neither party produced any documentary evidence to corroborate their version of when they started living together. The respondent testified that every summer and Christmas break he went back to Alberta to visit family including taking care of his mother who was dying of cancer.

[26] The applicant did not provide any corroborative witnesses or emails to confirm the date of the commencement of cohabitation as September 1998 despite indicating that she had such evidence but did not produce it. If the applicant had such evidence, she should have produced it.

[27] I accept the respondent’s evidence that the parties started living together in September 2000. I draw an adverse inference against the applicant for failing to provide corroborative evidence that she admitted having in her possession. In addition, I find the respondent credible that he was travelling to Alberta to care for his mother as well as to spend his summers and Christmas holidays with his family.

[28] I conclude that the parties started living together in September 2000.

Date of separation

[29] The applicant submits that the parties separated on September 1, 2013 when they stopped living together as their lease had expired. The respondent submits that the parties separated on August 1, 2013.

[30] During her testimony, the applicant admitted that she felt the relationship was over in June 2013 but they stayed together until the end of the lease on August 31, 2013. The respondent testified that once the parties had agreed to separate, he rented his own residence for August 1, 2013. The respondent testified that he did not want to leave the house until he had a written agreement regarding joint custody and equal time with Dakota. On August 2, 2013, the parties signed a Joint Custody Parental Plan which confirmed that arrangement.

[31] I find that the parties separated before August 31, 2013. I find that by August 1, 2013, the respondent had rented his own apartment. I accept the respondent’s evidence that he did not move out prior to having them both sign a separation agreement where it was confirmed that they would have joint custody and equal parenting time with the child.

[32] I find that the date of separation is August 1, 2013.

Determination of the parties’ income

[33] The parties agree that from the date of separation, the child Dakota was in a shared custody arrangement until December 31, 2017 and from January 1, 2018, the child has remained in the primary care of the applicant and the respondent has access to the child.

[34] The parties agree that the commencement date for child support would be the date of separation. On the issue of child support arrears, the respondent testified he could not afford to pay child support because he assumed all the credit card for the contents that he left in the family residence. The respondent argues that an order for arrears of child support would cause him hardship but is prepared to do so if so ordered by the court.

[35] The respondent admits that he did not pay any child support prior to the order of Justice MacKinnon in February 2016 despite requests from the applicant. Further, as the respondent denies that the applicant is entitled to spousal support, he is paid no spousal support up to the January 18, 2018 decision of Justice Linhares de Sousa.

[36] I find that the applicant earned the following income:

(a) 2013, the sum of $46,019;

(b) 2014, the sum of $45,480 with RRSP withdrawal of $1,275;

(d) 2016, the sum of $35,247 with RRSP withdrawal of $4,150 and $17,249 from a mutual fund;

(e) 2017, the sum of $39,580; and

(f) 2018, the sum of $39,580.

[37] I find that the respondent earned the following income:

(a) 2013, the sum of $88,440 with union dues of $452;

(b) 2014, the sum of $79,196 with union dues of $536;

(d) 2016, the sum of $77,512 with union dues of $576;

(e) 2017, the sum of $85,965 with union dues of $576; and

(f) 2018, the sum of $85,965 with union dues of $576.

[38] The parties do not agree on the following:

(a) Should the applicant’s RRSP withdrawals in the tax years 2014, 2015, 2016 and 2017 be included in her annual income for calculation of child support and spousal support?

(b) Should the union dues charged to the respondent be deducted from his annual income for the calculation of child support in a shared custody arrangement?

RRSP income

[39] Section 16 of the Federal Child Support Guidelines indicates that a spouse’s annual income is determined using the sources of income set out as “Total Income” in a spouse’s T1 General form income tax return.

[40] Section 17 of the Federal Child Support Guidelines provides the court with discretion to determine that a spouse’s annual income under section 16 would not be the fairest determination of a spouse’s income. The court is to have regard to the spouse’s income over the last three years and determine an income that is fair and reasonable in light of any pattern of income, fluctuation an income or receipt of a non-recurring amount during that three-year period. If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the first determination of that income, the court may determine an amount that is fair and reasonable.

[41] In Fraser v. Fraser, 2013 ONCA 715, 2013 O.J. No. 5347, the Court of Appeal found that RRSP income is presumptively part of a spouse’s income for child support purposes since RRSP income is included as part of “Total Income” on the T1 General tax form

[42] One year later, In the Ludmer v. Ludmer 2014 ONCA 827, 2014 O.J. No. 5565 the Court of Appeal stated at paragraph 23:

The inclusion of RRSP proceeds is not mandatory, however, and the court has the discretion in appropriate circumstances to do otherwise. Section 17(1) of the Guidelines provides this flexibility:

If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[43] The Court in Ludmer, supra, found at paragraph 25:

The trial judge did not state specifically that he was applying the analysis in ss. 16 and 17 of the Guidelines when arriving at this decision. However, his reasons show that he was alive to the need to arrive at income levels that “fairly reflected” the financial capacities of the spouses for the purpose of support. In short, his reasons show that, in his view, including the RRSP proceeds in the parties incomes “would not be the fairest determination of the spouse’s income for support purposes, and in excluding them, he was arriving at an amount that was “fair and reasonable in light of any pattern of income, fluctuation income or receipt of a non—recurring amount.”

[44] In Warsh v. Warsh 2012 ONSC 6903, Lauwers, J, as he then was, did not consider RRSP withdrawals to be income for spousal support purposes and found that the drawdown of RRSPs by the wife was not sustainable.

[45] In McConnell v. McConnell 2015 ONCA 2243, Price, J. held that the wife’s withdrawals from her RRSP accounts were not sustainable and not likely to continue for a substantial period of time. Further, he stated at paragraph 104:

It makes no sense to include in Ms. McConnell’s income the withdrawals she made from her RRSP, made necessary by the fact that she was not receiving timely payments of child and spousal support, and thereby diminish the spousal support she receives in the future, when she no longer receives income from the RRSP. Taking such an approach would result in a support order that is premised on an unrealistically high income.

[46] In this case, the applicant testified she withdrew money from her RRSPs and mutual fund to pay her credit card bills and simply to make ends meet. Further, in addition to cashing in RRSPs/mutual fund, she was required to borrow $8,000 from her mother.

[47] The facts of this case are similar to the McConnell case where the recipient spouse was required to cash in her retirement savings to pay for her living expenses when she was not receiving child and spousal support. In this case, the applicant had to cash in her investments when she only received $335 per month as child support starting February 2016.

[48] I find that it is not fair and reasonable to include the applicant’s withdrawal of her RRSPs/mutual fund for the years 2014, 2015, 2016 and 2017 as part of her income because it would result in the applicant having an unrealistically high income.

[49] Further, including her RRSPs/mutual fund would not fairly reflect her financial capacity for child and spousal support purposes. It would artificially increase her income which would benefit the respondent during a period of time when he was not paying any spousal support and only started paying child support in February 2016.

[50] I will not include the applicant’s RRSPs/mutual fund income for the years 2014, 2015, 2016 and 2017 as part of her total income for support purposes.

Union dues

[51] Counsel for the applicant provided DivorceMate calculations which did not deduct union dues from the respondent’s income for support purposes. This is wrong. Clearly, union dues are to be deducted from the respondent’s income as per the Federal Child Support Guidelines.

Child Support

[52] Based on my findings with respect to the parties’ incomes, I have prepared DivorceMate child support and spousal support calculations attached to these reasons for judgment for the years 2013 to 2018 inclusive.

[53] The parties have agreed to use the set off method in calculating child support between 2013 and 2017 for a shared parenting arrangement.

[54] Commencing August 1, 2013, based on the respondent’s guideline income of $87,988, the applicant’s annual income of $46,019, the child in a shared custody arrangement, I order the respondent to pay to the applicant set off child support of $370 per month.

[55] Commencing January 1, 2014, based on the respondent’s guideline income of $78,660, the applicant’s guideline income of $45,480 and the child in a shared custody arrangement, I order the respondent to pay to the applicant set off child support of $303 per month

[56] Commencing on January 1, 2015, based on the respondent’s guideline income of $78,287, the applicant’s guideline income of $37,411 and the child in a shared custody arrangement, I order the respondent to pay to the applicant set off child support of $382 per month.

[57] Commencing on January 1, 2016, based on the respondent’s guideline income of $76,936, the applicant’s guideline income of $35,247 and the child in a shared custody arrangement, I order the respondent to pay to the applicant set off child support in the amount of $393 per month.

[58] Commencing on January 1, 2017, based on the respondent’s guideline income of $89,389, the applicant’s guideline income of $39,580 and the child in a shared custody arrangement, I order the respondent to pay to the applicant set off child support of $475 per month.

[59] Commencing on January 1, 2018, based on the respondent’s guideline income of $85,389, the applicant’s guideline income of $39,580 and the child living primarily with the applicant, I order the respondent to pay to the applicant table child support in the amount of $796 per month.

[60] I order that any child support paid by the respondent since the order of Justice MacKinnon dated February 5, 2016 shall be credited against any arrears of support.

Spousal Support

Entitlement

[61] The applicant’s position is that she is entitled to both compensatory and non-compensatory support. The respondent denies that the applicant is entitled to any spousal support.

Legislative framework

[62] Section 33(1) of the Family Law Act, R. S. O. 1990, c. F.3. as amended states that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

[63] Section 33(8) of the Family Law Act, provides that an order for support of a spouse should:

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

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

(d) relieve financial hardship, if this has not been done by orders under Part I and II.

[64] Section 33(9) of the Family Law Act states that in determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including:

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for a dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) repealed;

(l) if the dependant is a spouse,

i. the length of time the dependant and the respondent cohabitated,

ii. the effect on the spouse’s earning capacity of the responsibilities assumed during the cohabitation;

iii. whether the spouse has undertaken the care of a child who is of the age of 18 years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents;

iv. where the spouse is undertaking to assist in the continuation of a program of education for a child 18 years of age or over who is unable by that reason to withdraw from the charge of his or her parents;

v. any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the families support

vi. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Analysis

[65] I find that the applicant is entitled to spousal support both on a compensatory and non-compensatory basis. These are my reasons.

[66] The applicant was employed with the Bank of Montreal from 1983 to 2000. From 2000 to 2009, she worked for Moneris Solutions in Toronto earning between $45,000 and $48,000 per year with benefits including a pension.

[67] The applicant had a very good job in Toronto. I accept the applicant’s evidence that one year after moving from the Bank of Montreal that she and other employees had a fundamental change in their work conditions. Despite such a change, the applicant continued to remain employed with Moneris Solutions.

[68] The respondent wanted to pursue a career as a probation officer where he could use the skills obtained in pursuing his Master’s degree in sociology. In addition, the respondent stated that the physical demands of being a driver of a recycling truck were starting to take its toll and he wanted a less physically demanding job.

[69] I accept the applicant’s evidence that she was happy in that job but was also happy to move with the respondent and their child to Ottawa to advance the respondent’s career. An additional reason was that the applicant was closer to her father was in Montreal and ill.

[70] The applicant testified that she inquired about a transfer from Toronto to Ottawa but there was no job available for her with her employer.

[71] I find that as a result of this move from Toronto, the respondent embarked on a career at Health Canada which has been to his advantage. On the other hand, the applicant’s move to Ottawa has not resulted in her maintaining or advancing her career. I find that she suffered an economic loss because she cannot find full-time employment which provides her with the same benefits that she had in Toronto. For a significant period of time, the applicant has been a contract employee. She has no entitlement to a retirement pension. She was 53 years of age at separation and 58 years of age at the trial.

[72] The respondent has been working on a full-time basis at Health Canada since March 3, 2009 where he is well-paid, has an extended health plan and is accumulating a pension asset. The respondent was 45 years of age at separation and 51 years of age at the trial.

[73] I also find that the applicant is entitled to spousal support on a non-compensatory basis. In the last year that the parties resided together, their combined income was $134,000. I accept the evidence of the applicant that she has not been able to make ends meet without the need to cash in RRSPs and her mutual fund as well as borrowing $8000 from her mother.

[74] I agree with the respondent that her financial statement filed in these proceedings is full of mistakes. The applicant’s financial statement failed to indicate the child and spousal support that she was receiving, deducted $854 per month for RRSP contributions which she admitted was an error and stated that she owned a 2013 Toyota Corolla which she readily admitted had been replaced by a leased vehicle in 2018. Despite these errors, the fact remains that she has been unable to make ends meet without borrowing and cashing in her assets.

Commencement date of spousal support

[75] The applicant seeks spousal support as of April 2015 being the month that she commenced proceedings. The respondent denies that the applicant is entitled to any spousal support.

[76] In MacKinnon v. MacKinnon (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), the Court of Appeal stated three principles applicable to spousal support:

(a) spousal support usually commences from the date of the application or from the date of the demand for financial information;

(b) retroactive spousal support only applies to any claim made for the period of time prior to the commencement of proceedings; and

[77] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada confirmed that the principles applicable to claims for retroactive child support set out in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, were relevant in deciding the suitability of retroactive spousal support. The four considerations are as follows:

(a) whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;

(b) the conduct of the payor parent. The court characterized “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support” (D.B.S., at para 106). It emphasized that a payor cannot simply hide their income increases from the recipient parent in hopes of avoiding larger child-support payments;

(d) any hardship that may be occasioned by a retroactive order.

[78] In this case, the respondent was on notice that the applicant was seeking spousal support effective April 2015. The respondent did not pay any spousal support and denies that the applicant is entitled to spousal support

[79] The respondent says that he will suffer a hardship if he is required to pay retroactive spousal support. In support of that argument, the respondent states that he is paying off debts that existed at the date of separation.

[80] The respondent testified that he left everything in the family residence except his clothes and books. He testified that he had borrowed on various credit cards to pay for these assets. The respondent produced a statement dated August 19, 2013 from his President’s Choice credit card showing that he had an indebtedness of $4,135.61 which has been paid. In addition, the respondent alleges that he owed money to the Bank of Nova Scotia as well as to the Bank of Montreal, approximately $23,000-$24,000 at separation.

[81] The respondent produced as Exhibit 9 a statement from a collection agency dated November 2014 on behalf of the Bank of Nova Scotia seeking the repayment of $6,054.18.

[82] The respondent produced as Exhibit 10 a letter from a law firm dated January 10, 2018 seeking to enforce an amount owed under a small claims court decision. As Exhibit 17, the respondent provided an endorsement made at a settlement conference in small claims court where the debt was agreed to be $17,474.80 requiring the respondent to pay $300 per month commencing September 1, 2016 until the debt is paid in full.

[83] The applicant did not testify in reply to the evidence provided by the respondent. I accept the evidence of the respondent that these debts were incurred prior to separation and that all but his books and clothing were left in the family residence.

[84] That being said, the respondent is paying approximately $600 per month towards his debt inclusive of which is $200 to his girlfriend for monies lent to him to retain a lawyer during the custody part of this litigation.

[85] However, any spousal support ordered as of April 2015 is not a retroactive order. It is a prospective order. There is no request for support prior to the commencement of proceedings.

[86] Based on the applicant’s financial statement sworn December 12, 2018, she has investments of approximately $46,485, $525.38 in her three bank accounts. The applicant has debts of approximately $10,000 to BMO line of credit, $8,800 to her mother, brother and sister and an ongoing BMO MasterCard credit card

[87] According to the respondent’s financial statement sworn January 4, 2019, the respondent has $100 Royal Bank account and approximately 10 years of contributions to his pension plan. He owes BMO MasterCard $13,677, HBC credit card $1,200, his girlfriend $3,000 and a Canada student loan of $50,000 (no payments have been made on this loan for over five years).

[88] In the circumstances, I find that spousal support should be paid as of April 1, 2015.

Quantum of spousal support

[89] Counsel for the applicant has requested spousal support between the mid-range and the high-range based on the long term relationship and the respondent’s obligation to care for the child.

[90] With respect to the caring of the child, both parties’ affidavits attest that they jointly cared for the child while they lived together. Further, the parties signed the separation agreement in August 2, 2013 where they agreed to joint custody and an equal parenting schedule.

[91] The applicant testified that the respondent did not adhere to the schedule requiring her to enlist the aid of friends and family. The respondent denied these allegations and no witnesses were brought forth by either party to corroborate their version of events. Based on the evidence, I conclude that both parties shared in the care of the child.

[92] I have determined that the mid-range of spousal support is appropriate because of the length of cohabitation, the applicant’s economic loss, the economic advantage received by the respondent and her need.

Spousal support award

April to December 2015

[93] I find that where the parties have a shared custody arrangement, the parties should have equivalent net disposable incomes.

[94] Based on the respondent’s guideline income of $78,287, the applicant’s guideline income of $37,411 and the child in a shared custody arrangement with the respondent paying $382 per month as child support to the applicant, I find that the sum of $959 per month, being the high-end of the SSAG, would result in both parties having an equal net disposable income.

[95] Spousal support for the year 2015 is neither tax-deductible or her taxable. I have reviewed the after-tax cost/benefit of spousal support and have determined that the respondent shall pay to the applicant net spousal support of $640 per month from April 1, 2015 to December 1, 2015.

Year 2016

[96] Based on the respondent’s guideline income of $76,936, the applicant’s income of $35,247, the child in a shared custody arrangement with the respondent paying to the applicant $393 per month as child support, I find that the sum of $938 per month, being the high-end of the SSAG would result in both parties having an equal net disposable income.

[97] Spousal support for the year 2016 is neither tax-deductible nor taxable. I have reviewed the after-tax cost/benefit of spousal support and order that the respondent shall pay to the applicant net spousal support of $645 per month from January 1, 2016 to December 1, 2016.

Year 2017

[98] Based on the respondent’s guideline income of $85,389, the applicant’s guideline income of $39,580, the child in a shared custody arrangement with the respondent paying to the applicant $475 per month as child support, I find that the sum of $1,183 per month, being the high-end of the SSAG would result in both parties having an equal net disposable income.

[99] I spell sport for the year 2017 is neither tax-deductible nor taxable. I have reviewed the after-tax cost/benefit of spousal support and order that the respondent shall pay to the applicant net spousal support of $801 per month from January 1, 2017 to December 1, 2017.

Year 2018

[100] Based on the respondent’s guideline income of $85,389, the applicant’s guideline income of $39,580 and the respondent paying table child support of $796 per month to the applicant, commencing January 1, 2018, I order the respondent to pay to the applicant the mid-range of spousal support of $364 per month which will provide the recipient would 52% and the respondent with 48% of the net disposable income of the parties

[101] Further, I order that this order may be revised on or after July 1, 2019 based on the disclosure of the parties; respective 2018 income tax returns and notices of assessment.

[102] The respondent is to be given credit for any spousal support payments made.

Duration of spousal support

[103] Based on the length of cohabitation being 13 years and the recipient’s age of 53 at the date of separation, the SSAG indicate that the spousal support is payable for an indefinite (unspecified) duration, subject to variation and possibly review.

[104] The applicant’s position is that support should be payable until her 65th birthday on September 25, 2025 which would provide the applicant with approximately 10 ½ years of spousal support.

[105] I order that the respondent shall pay to the applicant spousal support until September 1, 2025, at which point spousal support shall terminate.

Ongoing obligation of financial disclosure

[106] As there are ongoing obligations for child and spousal support, I order that within 30 calendar days of a material change in circumstances of either party that party shall provide to the other party written confirmation of any such change with supporting documentation.

[107] By May 1 of each year in which child and spousal support is payable, both parties shall deliver to each other a copy of their income tax return for the previous year. In addition, both parties shall, within 10 days of receipt, deliver a copy of their notice of assessment or notice of reassessment (if any).

Costs

[108] I encourage the parties to settle the issue of costs by February 8, 2019. If they cannot, the applicant shall provide her costs submissions not to exceed three pages plus a bill of costs and any offers to settle by February 15, 2019. The respondent shall file his costs submissions not to exceed three pages plus a bill of costs and any offers to settle by February 22, 2019. The applicant may provide reply costs submissions not to exceed two pages by February 28, 2019.

Mr. Justice Mark Shelston

Released: January 31, 2019