Court File and Parties

COURT FILE NO.: D17824/01 DATE: 2020/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Calvin James William Graham Self-represented Applicant

- and -

Brenda Anne Graham Angelo P. Fazari, for the Respondent Respondent

HEARD at Welland: December 11, 2019

REASONS FOR JUDGMENT

The Honourable Justice M. Kril

[1] The parties confirmed at the outset of this trial that the only issue to be determined was that of spousal support. The Applicant Husband sought an order confirming that support had terminated by agreement on a final basis effective July 29, 2008. The Respondent Wife sought an order for support commencing October 1, 2017.

[2] For reasons which follow I find that the Respondent Wife did not release her claim to spousal support on a final basis in 2008. A final order will go as follows:

1. The Applicant shall pay spousal support of $400 per month to the Respondent commencing October 1, 2017 and ending December 31, 2019.
2. Commencing January 1, 2020, the Applicant shall pay spousal support to the Respondent in the amount of $1,000 per month.
3. The Applicant shall pay any arrears of support to the Respondent pursuant to 1. above by March 30, 2020.
4. There shall be no arrears prior to October 1, 2017.

The Facts:

Background:

[3] The parties were married on January 27, 1978 and separated after 21 ½ years of marriage on June 22, 1999. There were two children born of their relationship namely: James William Graham, born April 4, 1981 and Amanda Lynn Graham, born July 12, 1977.

[4] At the time of separation, the Respondent was 43 years of age and her highest level of education was grade 12. The Applicant was 41 years of age and self employed as a certified electrician. During the marriage, the Applicant started his own business known as Graham Electric which he continues to operate now as Graham Lighting. It is a sole proprietorship.

[5] The Respondent was not employed outside of the home during the marriage other than providing some basic bookkeeping services for the Applicant’s business. I accept her evidence that she was primarily responsible for childcare and household management while the Applicant worked full time to provide for the family financially. This was a long-term marriage characterized by a traditional division of labour. At separation, the Respondent was not employed outside of the home and fully financially dependent on the Applicant.

[6] Following separation, the Applicant continued to operate his electrical business. The Respondent secured part time employment as an inventory clerk earning minimum wage. After two years she was able to secure full time employment at the Hilton Hotel, but again earning only minimum wage. She resided with her mother in order to make ends meet.

[7] The Respondent gave evidence that the Applicant was both verbally and physically abusive during the relationship and that he was financially controlling. The Applicant denied these allegations but acknowledged on cross examination that there was negative physical contact between the parties at least five times per year. The Applicant was evasive when providing answers to this line of questioning and I found at least one version of his description of events to lack credibility. As such, where the evidence of the Respondent conflicted with that of the Applicant as to the level of physical and verbal abuse in their relationship, I favour the evidence of the Respondent.

[8] In December of 2001 the Applicant issued a Petition for Divorce in which he claimed only a divorce. The Respondent counterclaimed for spousal support and equalization. In June of 2002 the Applicant was ordered to pay the Respondent $400 per month in spousal support. This was an interim interim order. The corollary relief issues were severed from the divorce by order of the same date and subsequently a divorce only was granted on June 29, 2004.

[9] No further steps were taken by either party with respect to the litigation. The corollary relief issues remained unresolved.

[10] In November of 2006, the Applicant purchased a home in his name alone.

The “Agreement”:

[11] It was the Applicant’s evidence that he approached the Respondent in May of 2008 to negotiate a final termination of his spousal support obligations. It was his understanding that she had received an inheritance on her mother’s death. As such he believed that the Respondent’s financial position was now better than his own and that it was appropriate that his support obligation come to an end.

[12] It was the Respondent’s evidence that the interim support order was often in arrears. The Family Responsibility Office (“FRO”) statement indicates that by May 1, 2008 when the Applicant contacted the Respondent the support arrears stood at $9800. The Respondent gave evidence that the Applicant contacted her at this time to enlist her assistance in withdrawing the enforcement of the interim interim support order from FRO. The Applicant advised the Respondent that he was likely to lose his driver’s licence unless she cooperated in withdrawing from FRO. He cautioned that without a licence he would be unable to work or to pay her support. It was the Respondent’s evidence that the Applicant advised her that he was waiting for a customer to pay him and that he would bring all his arrears into good standing if only she would assist him by withdrawing from the FRO.

[13] The Respondent gave evidence that her financial circumstances at the time were dire. She had been residing with her mother previously and making ad hoc financial contributions to their joint household. With these arrangements in place she was able to meet her expenses from her minimum wage employment. However, when her mother passed, she left her home to her two daughters equally. The Respondent then took on a mortgage to buy her sister out of the home. She was unused to having set monthly payments for mortgage, taxes and utilities. She was earning only minimum wage. Her support was in arrears. The Respondent gave evidence that her financial circumstances were very poor and that she was going into debt.

[14] The Respondent maintained that in order to get the arrears owed to her paid and to avoid the Applicant losing his licence, she agreed to withdraw the interim interim order from FRO enforcement. She denied that it was her intention to release her claim to spousal support on a final basis. She advised that it was always her understanding that she could “go back” at any time.

[15] Conversely, it was the Applicant’s position that the result of their discussions was the Respondent’s agreement to terminate her claims to spousal support on a full and final basis.

[16] Both parties agreed that they then prepared the following documents. Neither party obtained legal assistance or advice. Neither party made financial disclosure.

1. Both parties signed a Notice of Withdrawal which was dated May 5, 2008. The Notice of Withdrawal was in the standard form addressed to the Family Responsibility Office and provided as follows:

   TAKE NOTICE that I Brenda Anne Graham hereby withdraw the support provisions of the order/agreement/contract dated: July 1/02 from the Family Responsibility Office, this includes the related Support Deduction Order if filed with the Director, Family Responsibility Office. We understand that both the Support Payor and the Support Recipient will be subject to a fee of $50.00 each if either wants to re-file with the FRO at a later date.

2. The Applicant alone signed a letter which was apparently prepared on May 5, 2008 and subsequently signed by him on July 29, 2008. The letter reads as follows:

   I, Calvin Graham, by signing this document agree to the terms and conditions set within. a) By being released from the Family Responsibility Office by Brenda Graham, I agree to pay the outstanding balance owing to her of $9800 to be paid in full 90 days from date document faxed as well as the additional support payments accrued in the 90 days. b) If not paid in full in 90 days Brenda may at that time reinstate the Family Responsibility Office to act as her collection agency and I will cover the charges to do so. c) After this support is paid I may go to the courts and have the support order taken off for which I will cover all costs incurred for myself and Brenda. d) Having had the support dropped, I also agree to pay Brenda a sum of $20,000 upon receipt of any inheritance I may receive, assuming she is still single, with no prospective mate.

3. A letter dated July 29, 2008 was signed by Brenda Graham only. The letter reads as follows:

   Upon the deposit of all outstanding Spousal Support payments in the amount of $11,000 to my bank account by Calvin Graham, I will release Calvin from the Interim Support Order now in place. I will sign the necessary paperwork needed to finalize this order, with all costs incurred to be paid by Calvin Graham. (emphasis added)

4. A Notice of Motion was prepared and signed by Mrs. Graham. Page two of the Notice of Motion reads as follows:

   I am requesting that the Interim Support order of 2002 between Calvin James Graham and Brenda Anne Graham for the amount of $400/month be terminated. I acknowledge that all payments have been received as of this date, July 29, 2008. (emphasis added).

[17] The parties agreed that on July 29, 2008 the sum of $11,000 was deposited by Mr. Graham to Mrs. Graham’s account. Mrs. Graham gave evidence that the $11,000 was comprised of $9800 in arrears as of May 1 as well as support in the amount of $400 accrued for May, June and July. The FRO ceased enforcement effective May 5, 2008. The motion to terminate the interim order was never filed.

[18] As indicated above, Mr. Graham maintains that these documents evidence Mrs. Graham’s agreement to terminate her claim to spousal support on a full and final basis. Mrs. Graham maintains that there was no such agreement. It was her understanding that she could make a claim for support at any time. She cooperated with Mr. Graham’s request to withdraw from FRO because she needed the support arrears that he owed to her.

Post “Agreement” Events:

[19] Mr. Graham did not make further support payments after July 29, 2008 until September 2017 when Mrs. Graham filed the 2002 order with FRO. On her evidence, Mrs. Graham did not request support from Mr. Graham between July 29, 2008 and August 2017.

[20] After the events of 2008, the Respondent continued to work for the Hilton Hotel in various minimum wage jobs. She was ultimately unable to keep up with the payments on her mother’s former home and sold it. After paying off the mortgage and other debt, her evidence was that she was left with $50,000 which she deposited to a TFSA. She then moved to a small apartment in Niagara Falls.

[21] In August of 2015 the Respondent was seriously injured in a workplace accident. The evidence was that she suffered burns to 20% of her body and remained in hospital for over one month. The Respondent received Workmen’s Compensation Benefits (“WCB”) until March 24, 2017. She also received six months of training in basic bookkeeping through Transitions College as part of her rehabilitation through WCB.

In September 2016 the Respondent received a lump sum settlement of $14,182.43 from WCB. She then applied for and secured a position as a bookkeeper. However, she was not kept on following her probationary period. She understood from the employer that her ability to learn new information was not adequate.

The Respondent’s Need:

[22] The Respondent gave evidence that she suffers from Post-Traumatic Stress Disorder (“PTSD”) as a result of the workplace accident. She advises that the PTSD manifests itself in sleep issues, fatigue, depression and difficulties in learning and retaining new information. The Respondent produced a medical Discharge Report prepared for the Workplace Safety and Insurance Board (“WSIB”) in March of 2017. The report confirms the diagnosis of Acute Post-Traumatic Stress Disorder and states that Mrs. Graham continues to suffer from pain and discomfort associated with the original burn injury. The report states that her PTSD runs a chronic, fluctuating course and is associated with depressive disorder. It concludes by stating that the writer has no further return to work recommendations for her and that in his opinion, Mrs. Graham had reached her maximum possible recovery. Following the receipt of the discharge summary by the WSIB, the Respondent received a further final lump sum settlement in the amount of $2867.

[23] The Respondent has not sought employment since 2017. It is her evidence that she is not capable of maintaining any employment.

[24] Her current income is $837 per month or $10,020 per year made up of $495 per month from a post retirement disability pension and $340 per month from CPP. On turning 65 years of age, the post retirement pension will end and she will receive OAS thereby increasing her monthly income by some $112 per month.

[25] The Respondent estimates that at trial she had approximately $35,000 remaining in her TFSA from the monies left following her sale of her mother’s home. She has been drawing on these monies to supplement her income. The Respondent’s financial statement deposes to annual expenses of approximately $24,000.

The Applicant’s Ability to Pay:

[26] The Applicant’s evidence is that during most of the marriage and since separation he has been engaged in a sole proprietorship now known as Graham Lighting. According to the Applicant, the business has had its ups and downs. The good years were prior to 2008 when the business did work for several large institutions such as colleges and hospitals. Mr. Graham advised that changes in technology had impacted the business at around that time. He had attempted to deal with these changes by partnering with a Montreal company. That partnership was apparently not successful, and the partner company went out of business in 2017. He identified the most recent good year for the business as 2014 when he declared personal income of some $48,000.

[27] The down years have been the most recent ones. The Applicant’s personal income for 2015 was $29.81, $12,493 for 2016, $2135 for 2017 and $5221 for 2018. The Applicant maintained that his income for support purposes is the same as his declared income and denied running any personal expenses through the company. The Applicant gave evidence that the gross business income of Graham Lighting has been steady at approximately $150,000 per year for 2015, 2016 and 2017. His most significant expense was direct wage costs.

[28] The Applicant acknowledged that he had not run his business effectively in recent years. He advised that he had kept employees on when he did not need them and also overpaid them. He said that he did so to help fatherless young men who needed assistance. Mr. Graham gave evidence that he continued to operate the business over the last several years despite it not being profitable because he believed in the work he was doing to assist these young men.

[29] In response to questioning, the Applicant gave evidence that he could expect to earn $35 per hour if employed as an electrician.

[30] The Applicant remarried in 2017. The current Mrs. Graham gave evidence that she recently opened her own hairstyling business. She estimated her income last year as $25,000 before expenses and her net at $14,000. She also gave evidence that after advancing substantial sums of money to the Applicant and starting her own business, she is left with $20,000 in an RRSP and $2,000 in a TFSA by way of capital.

[31] The Applicant and his current spouse are not in agreement on the precise amount that was advanced by her, but the range is between $230,000 (Applicant’s estimate) and $310,000 or more (current spouse’s estimate). It is Mr. Graham’s evidence that these monies were used by him to pay off debts owed to Canada Revenue Agency (“CRA”) and personal loans.

[32] The details of the arrangement between the Applicant and his new spouse with respect to the three separate advances was vague. Only one of the advances in the amount of $80,000 is documented by way of promissory note. There is no reference to repayment of the amount. Rather, the note states that if they legally marry, the home will be jointly owned by them and if not (or Mr. Graham dies) the house is to belong to the new Mrs. Graham. Title to the property remains in Mr. Graham’s name alone. He gave evidence that he has had a will prepared which leaves the home to his new spouse. The will has not been finalized because he cannot afford to pay the lawyer’s fees.

[33] Mr. Graham gave evidence that with the assistance of his new wife he has remortgaged his house to the maximum amount available. His financial statement does not indicate any monies remaining on deposit from the funds advanced. On his Financial Statement, Mr. Graham estimates the value of his interest in the home to be $85,000 being one half of the total equity of $170,000.

[34] The Applicant deposed to annual expenses of approximately $32,000. He swore that his current spouse contributes the approximately $30,000 per year to cover those expenses that he cannot afford.

The Instigating Factor:

[35] The parties agreed that in August of 2017, the Respondent telephoned the Applicant and requested that he resume support payments to her. No agreement was reached by the parties and the Respondent proceeded to file with the Family Responsibility Office for enforcement of the interim interim support order previously withdrawn from FRO in 2008. The financial account from the FRO indicates that since September 1, 2017 FRO has been attempting to garnish $400 per month. As of October 2019 arrears stood at $1378.05.

[36] In response to the renewed enforcement, Mr. Graham mistakenly returned a motion to change a final order (referring to the interim interim order of Mr. Justice Matheson). The Respondent filed a Response requesting that the motion be dismissed. An Amended Response (pursuant to order made August 31, 2018) was subsequently filed on September 25, 2019.

[37] At the outset of the trial, the procedural irregularity (motion to change rather than proceeding with corollary relief claims) was noted and reviewed. The parties confirmed that, other than support, no issues remained outstanding from the original pleadings. On consent and pursuant to Rule 2(2) the trial proceeded on the single issue of spousal support.

The Issues, the Law and Analysis:

Entitlement to Spousal Support:

[38] Moge v. Moge, [1992] 3 S.C.R. 813 set out the method to be followed in a spousal support analysis ( see Bracklow v. Bracklow, [1999] 1 S.C.R. 420). The starting point is the objectives as stated in s. 15.2(6) of the Divorce Act. None of these objectives is paramount and all must be considered. Further guidance is provided in the factors to be considered as set out in s. 15.2(4) when assessing the “conditions, means, needs and other circumstances of each spouse”.

[39] Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)

15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order until subsection (2), the court shall 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 arrangement relating to support of either spouse.

(6) 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) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[40] This was a long-term traditional marriage of 21½ years duration.

[41] Mrs. Graham was out of the labour force for all this time during which she assumed the primary responsibility for childcare and household management. This long absence from the labour force meant that she was not able to acquire job skills or to gain seniority or job security. At separation, the Respondent was totally financially dependent upon the Applicant and without skills readily transferable to the workplace. She had missed opportunities. She was economically disadvantaged by the role she assumed during the marriage and by its breakdown.

[42] During the marriage, Mr. Graham provided the financial support for the family. Mrs. Graham’s assumption of the primary responsibility for childcare and household management freed Mr. Graham up to apply himself to become a certified electrician and to build a business. On separation he had marketable job skills and a successful business. He was economically advantaged.

[43] Mr. Graham argued strenuously that the objective of self-sufficiency should preclude his having a support obligation to Mrs. Graham. He argued that because he had not been requested to pay support to the Respondent between 2008 and 2017 that this was an indication that self-sufficiency had been reached. He argued that the reason that Mrs. Graham was not able to work now was caused by the workplace accident and not the roles that had been assumed during their marriage.

[44] The evidence did not support a finding that Mrs. Graham ever achieved self-sufficiency after separation. Her evidence was that at various times she had lived with her mother to minimize expenses, amassed debt, sold her home to pay that debt and depleted capital rather than seek spousal support. Her evidence was that she would do most anything to try to make ends meet rather than having to ask Mr. Graham for support. She gave evidence of experiencing financial hardship between 2008 and 2017 but did not reach out to Mr. Graham. She said that it was not worth the aggravation of trying to deal with him and that he was always full of excuses. She tried to make it on her own.

[45] The Divorce Act refers to the promotion of self-sufficiency if practicable. I find that Mrs. Graham has been very conscientious in her efforts to contribute to her own support since separation. However, it is often not possible to achieve economic self-sufficiency following a long-term traditional marriage ( see Fisher v. Fisher, 2008 ONCA 11, 88 O.R.(3rd) 241 at paragraph 55). Her evidence was that she had contacted Mr. Graham for financial assistance in 2017 only as a last resort.

[46] Mr. Graham also argued that if Mrs. Graham was in fact unable to achieve self-sufficiency her inability was the result of the workplace accident and not anything which flowed from the marriage. The law does not require that Mrs. Graham establish a causal connection to the marriage in order to secure support ( see Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at paragraph 42). Nonetheless, the basis for her need for support is clearly rooted in the marriage and her years out of the labour force. Her claim to support is both compensatory and needs based.

Release of Spousal Support on a Final Basis:

[47] Mr. Graham argues that whether or not Mrs. Graham was entitled to support, she released her claim to it on a final basis in 2008. It was his position that the documentation prepared in 2008 constituted a domestic contract and the Respondent’s agreement to terminate her spousal support entitlement on a full and final basis.

[48] Section 55 of the Family Law Act states that a domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. None of these criteria for validity were met.

[49] Here there was no written agreement or contract. There was only one document which contained the signatures of both parties namely the Notice of Withdrawal for FRO. The Notice of Withdrawal is entirely consistent with the Respondent’s evidence that she did not agree to a final release of support. There was only one letter that could even remotely be construed as contemplating a final arrangement and that was signed by Mr. Graham alone.

[50] The Applicant argues that the requirements of s.55 should be considered flexible. He relies upon Gallacher v. Friesen, 2014 ONCA 399 citing Virc v. Blair, 2014 ONCA 392 in support.

[51] The facts of the case before me differ markedly from those in Gallacher. In fact, it is difficult to imagine a set of facts more distinguishable from that contemplated in Gallacher where it was said:

Justice Pepall’s decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.

[52] This was a traditional marriage of over 21 years following which the Respondent had strong claims to both compensatory and non-compensatory support. The 2002 order (which was substantially in arrears) had only been in place for six years. The Respondent gave evidence that she was in dire financial circumstances at the relevant time and badly needed the back support that was owed to her. She made a bargain to get those arrears by helping the Applicant to keep his driver’s licence. There is nothing reasonable about a final termination of support in these circumstances. The Respondent’s need for money put her in a vulnerable position. There was unfairness in the circumstances surrounding the negotiation. Neither party received legal advice or made financial disclosure. These facts do not call for a flexible interpretation of s.55.

[53] Furthermore, the very language of the documents upon which the Applicant seeks to rely are contrary to his submissions. The documents dated July 29, 2008 which were signed by the Respondent clearly state she is agreeing to “release Calvin from the Interim Support Order now in place (emphasis added)” and “requesting that the Interim Support order of 2002 … for the amount of $400/month be terminated”. None of the documents that bear the Respondent’s signature even suggest that a release of support on a final basis was in contemplation.

[54] I find that there is no evidence that Mrs. Graham entered into an agreement to release her entitlement to spousal support on a final basis. Everything signed by Mrs. Graham referred very specifically to the interim interim order of Mr. Justice Matheson. Nowhere in the documentation signed by her is there any reference to a final release or termination of anything other than an interim order.

[55] Even if I had found the various letters to constitute such an agreement, I would have given such agreement little to no weight. I have already indicated that I find that Mrs. Graham was vulnerable at the time the negotiations took place. She needed the arrears that were owed to her. Refusing to cooperate with Mr. Graham’s request would have made it even less likely that she would get the money that was owed to her. Mr. Graham knowingly took advantage of that vulnerability when he advised her that without a licence he could not work and without work, he could not pay her. She did not have legal advice. She did not receive financial disclosure (see Miglin v. Miglin, [2003] 1 S.C.R. 303 at paragraph 4).

[56] As such, I find that the Respondent did not release her claim to spousal support on a final basis in 2008. Given that I have already found that Mrs. Graham has an entitlement to support, I proceed to consider the issue of quantum.

Need:

[57] Mrs. Graham’s current income is $10,020 per annum. Her evidence was that she had made extensive inquiries but that there is no additional public funding available to her. It is her evidence that she is no longer employable. She is unable to learn new skills, suffers from depression and tires easily after minimal physical effort. Mrs. Graham is about to turn 65 years of age.

[58] Mr. Graham put several scenarios to Mrs. Graham on cross examination. He suggested that she could stock shelves at the Walmart or do a few hours of bookkeeping at home. No evidence was led as to the amount of income that such activities could generate. Nonetheless, Mrs. Graham did not agree that she was physically able to perform such duties or to secure such employment.

[59] The court may impute income to a spouse for the purposes of a spousal support analysis even though there is no express provision for the imputation of income in the Divorce Act. The Spousal Support Advisory Guidelines refer to imputing income along the lines of the Child Support Guidelines and the courts have therefore applied this same methodology in imputing income when determining spousal support. Courts in Ontario have imputed income for spousal support purposes in several cases even where child support was not at issue ( see Murray v. Murray, 2010 ONSC 4278). The Applicant argues that income should be imputed to the Respondent.

[60] Based upon her age, work history, long term absence from the labour force during the marriage and current health situation, there is no reasonable basis upon which to find that Mrs. Graham is intentionally underemployed or to impute income to her in accordance with s. 19(1)(a) of the Guidelines.

Ability to Pay:

[61] The situation differs with Mr. Graham. Mr. Graham gave evidence that he has knowingly earned less income that he could earn for several years. He prioritized providing employment and experience to young persons over running a profitable business. He gave evidence that he could expect to earn $35 per hour if he sought out employment as an electrician. This would translate to over $72,000 per year assuming full time employment. Mr. Graham’s 2018 Line 150 income was $5221. His 2017 Line 150 income was $2133.

[62] In imputing income based on intentional under-employment, a court must consider what is reasonable in the circumstances (see Drygala v. Pauli, 61 O.R. (3d) 711 at paragraph 45). Mr. Graham is 62 years of age. He has been self-employed since the 1980s. No evidence was led before me as to the availability of employment and if available, the terms of such employment relating to hours per week or weeks per year. I have therefore discounted the amount of $72,800 and find that Mr. Graham can reasonably be expected to earn a minimum of $40,000 per year as an employed electrician. Accordingly, I impute income to him of $40,000 for the purpose of determining his spousal support obligation to Mrs. Graham.

[63] I note also that Mr. Graham failed to make financial disclosure in accordance with the order of Justice Donohue dated August 31, 2018. Mr. Graham attributed the fault of the non-disclosure to his former counsel. For whatever reason, the disclosure had not been produced before trial. Although there was evidence that the business grossed some $150,000 per year, the lack of disclosure deprived the Respondent from a reasonable ability to challenge the expenses claimed to reduce income. As such, it is also open to me to impute income to the Applicant pursuant to s.19(1)(f) (see D.M.B. v. D.W.A.L., 2018 BCSC 1254 citing Wiebe v. Treissman at paragraph 92). I have not done so preferring to rely upon the Applicant’s own evidence of his ability to earn income.

[64] Based upon imputed income of $40,000 for Mr. Graham and income of $10,020 for Mrs. Graham, monthly spousal support of $1,000 falls between the mid and high range of the Spousal Support Advisory Guidelines. In ordering this amount I have considered the length of the parties’ marriage, the strength of the Respondent’s compensatory claim, her need and her current status as a disabled spouse. In considering the location in the range, I have also considered Mr. Graham’s ability to pay given that his current spouse has assisted him in discharging a substantial amount of debt, including that owing to CRA.

[65] The obligation to pay spousal support will be indefinite, subject to variation in the event of a material change in circumstances. There was no evidence before me to support either a time limited support order or a review clause ( see Leskun v. Leskun, [2006] 1 S.C.R. 877, Bracklow v. Bracklow, [1999] 1 S.C.R. 420).

Commencement date:

[66] The Respondent seeks an order for support retroactive to October 1, 2017 in the amount of $987 per month (with credit for payments made and the balance payable as a lump sum). Commencing November 2019, the Respondent seeks an order for increased periodic monthly support in the amount of $1301. She does not make a claim for support for the period prior to October 1, 2017.

[67] This is a claim for post application support and not a claim for retroactive support that requires a Horner analysis. As such, Mrs. Graham is presumptively entitled to prospective support from the date of notice that she intended to pursue her support claim. ( see MacKinnon v. MacKinnon, 2005 ONCA 500, [2005] O.J. No. 1552 (Ont. C.A.)).

[68] The Respondent provided the Applicant with notice that she was proceeding with her spousal support claim when she telephoned him in August of 2017. At that time she put him on notice that she was in need of support and that it was no longer reasonable for him to rely upon the status quo that had existed since July 29, 2008. As such, September 1, 2017 is presumptively the commencement date for support (adjusted to October 1, 2017 in accordance with the Respondent’s claim).

[69] However, the unusual circumstances of this case require a balancing of the competing interests between the parties.

[70] Mr. Graham argues that he had no notice that Mrs. Graham was seeking increased support (from the $400 requested by her) until he received the Amended Response to Motion for Change served on his counsel on September 23, 2019. He argues that the matter had proceeded through various conferences and negotiations without any suggestion that the Respondent would be seeking that income be imputed to him or that support above that of $400 per month would be sought. He did not seek to adjourn the trial on this basis.

[71] Mrs. Graham’s evidence was that she telephoned Mr. Graham in August of 2017 when her WSIB payments ceased to ask that he reinstate the $400 per month spousal support payments. Although he refused to do so, Mrs. Graham filed with FRO and thereafter began receiving monthly support in this amount. Mrs. Graham took no further steps. She did not return a motion for spousal support. Rather, Mr. Graham returned a motion to change. Mrs. Graham’s original Reply seeks only to have Mr. Graham’s motion to change Justice Matheson’s order dismissed.

[72] Mr. Graham’s financial statement does not disclose any significant assets from which he could make a “catch up” support payment. His home is financed to the maximum amount available. Despite having received substantial amounts of money from his current spouse, he still has some credit card debt and owes arrears of support which he will be required to pay.

[73] Mrs. Graham gave evidence that she has been depleting her capital and has some $35,000 left from her inheritance and a small RRSP. She appears to have no debt.

[74] Ordering the increased amount of spousal support to be effective October 1, 2017 would require Mr. Graham to come up with a substantial lump sum. Since there are no assets from which it could be satisfied, I find that it would interfere with his ability to make ongoing support payments and create undue hardship ( see Fisher v. Fisher, 88 O.R. (3rd) 341 at paragraph 76).

[75] In balancing the two parties’ interests, I find that it is reasonable that Mr. Graham pay $400 per month in support from October 1, 2017 (as claimed by the Respondent) to December 31, 2019 with credit for payments made. Commencing January 1, 2020 Mr. Graham shall pay spousal support of $1,000 per month to the Respondent. A support deduction order shall issue accordingly.

[76] If the parties are unable to resolve the issue of costs, the Respondent may make brief written submissions (no more than three pages with bill of costs attached) to me by January 24, 2020. The Applicant may make brief written submissions (no more than three pages with bill of costs attached) to me by February 7, 2020.

Kril, J. Released: January 6, 2020

COURT FILE NO.: D17824/01 DATE: 2020/01/06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Calvin James William Graham Applicant - and – Brenda Anne Graham Respondent REASONS FOR JUDGMENT Kril, J. Released: January 6, 2020