COURT FILE NO.: FS-15-40716
DATE: 20201116
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Bedzow Applicant
– and –
Louis Weisleder Respondent
John Schuman and Katelyn Bell for the Applicant
Dani Frodis and Kori Levitt, for the Respondent
HEARD: October 8, 9, and 15, 2020
J.T. AKBARALI J.
These reasons have been corrected as described in supplementary endorsements dated December 2, 2020 and December 18, 2020.
Overview
[1] The respondent husband brings a motion to change his child and spousal support obligations, which I determined after the trial of the parties’ matrimonial proceedings in 2018.
[2] Since the trial was heard, the parties’ older two children have graduated from their post- secondary studies, and their youngest child has begun his post-secondary studies. The applicant wife has relocated to the United States – a move which impacts the tax treatment of her spousal support. She states that her health has deteriorated.
[3] The motion to change raises a number of issues, including, (i) for what period of time table child support is payable, and by whom, if at all; (ii) the proper amount of the children’s s. 7 expenses; (iii) how to calculate the respondent husband’s income; (iv) whether to impute income to the applicant wife, and if so, how much; and (v) whether, and if so how, to account for the fact that the applicant’s wife’s spousal support is no longer taxable to her since her relocation.
The Trial Decision
[4] The history of the parties’ relationship is set out at length in my reasons, released in four parts: (i) main reasons on the trial, 2018 ONSC 1969, released on April 18, 2018; (ii) supplementary reasons regarding the proper calculation of retroactive and prospective child and spousal support, set-off and interest, 2018 ONSC 4111, dated June 29, 2018; (iii) supplementary unreported endorsement dated July 6, 2018, clarifying an issue regarding prospective child support; and (iv) supplementary unreported endorsement dated August 2, 2018, dealing with costs, and an adjustment necessary to deal with a double counting of the applicant’s s. 7 contribution. I need not repeat the lengthy history of the parties’ relationship here, particularly since entitlement to support is not in issue on this motion to change. The motion to change focuses on the proper quantum of support.
[5] However, for the purposes of the motion to change, it is important to understand some of the circumstances that led to the support orders made at trial, and the content of those orders.
[6] The parties separated on January 1, 2015, after a 21-year traditional marriage. At the time of trial, the respondent was 58 years old, and the applicant was 50 years old. The respondent, an orthopedic surgeon, had been the primary income-earner throughout the marriage. At the time of trial, the applicant worked limited hours, as she had done throughout most of the marriage, as a speech language pathologist. The applicant was also dealing with significant medical issues, but they were well-managed.
[7] The parties’ two older children, J and L, were studying at an American university, and incurring significant s. 7 expenses as a result. The parties’ youngest child, Z, was in his last year of high school at an independent school, for which tuition expenses were also being incurred. Z had been offered a placement at the same American university where his older siblings were studying, but he had not yet accepted that offer at the time the main reasons from the trial were released. At the time of trial, while there was some indication that the applicant might relocate to the United States in the future, she continued to live in Toronto.
[8] I ordered prospective child and spousal support based on the following:
a. I accepted the respondent’s expert’s calculation of his income. For 2018, that amount was $652,000. The figure was, by necessity, an estimate, as my trial decision was released in April 2018;
b. I imputed income to the applicant of $50,000, net of business expenses but gross of income taxes. This represented nine hours of client care per week.
c. I accepted evidence that, despite some difficulties in the relationship between Z and the applicant, support should be calculated assuming shared parenting of Z, and set- off table support for Z was appropriate. I found that the applicant would claim the dependent credit for Z.
d. I ordered no table support for J or L, finding that their expenses were better considered under the analysis of s. 7 expenses.
e. I accepted that the s. 7 expenses associated with the children’s attendance at the American university was $45,000 per child per term. I also accepted additional s. 7 expenses for Z’s high school tuition, and I accepted a $5,000 tax credit for donations and gifts, related to Z’s high school tuition.
f. For reasons explained at length in my trial decision, as a result of the manner in which the parties had dealt with their financial affairs during the marriage, through the use of a trust and a numbered company, I determined that the legal obligation to fund the children’s s. 7 expenses should be placed solely on the respondent. I accepted the applicant’s proposal that, to ensure the respondent did not overpay spousal support and yet bore the full responsibility for the children’s s. 7 expenses, the s. 7 expenses should be included as a calculation input that reduced the respondent’s income, and apportioned the s. 7 expenses between the parties according to income, but then ignored the applicant’s proportionate share by not setting it off against the amounts owed to her.
g. I found that the applicant was entitled to both, compensatory and non-compensatory spousal support. I ordered spousal support at the high end of the Spousal Support Advisory Guidelines (Ottawa: Dept. of Justice, 2008) [SSAGs], based on the roles the parties adopted during the marriage, the fact that the applicant had disproportionately borne the financial consequences of those roles, the fact that the applicant experienced greater economic hardship arising from the breakdown of the marriage, and in recognition of the fact that, due to the physical demands of his profession, the respondent would not be able to continue to work at the pace he was working for much longer. I concluded that support at the high end of the SSAGs was necessary to relieve against the economic hardship that the applicant experienced.
h. The prospective support order at trial provided for set-off table child support of $4,452, and monthly spousal support of $11,162, to be paid by the respondent to the applicant.
[9] Although, at the time of trial, it was foreseeable that material changes would soon occur necessitating changes to the support orders I had made, I declined to make prospective changes to the support orders that would be required when Z left for school. I concluded that I could only deal with the facts as they existed at that time. I expressed regret that a motion to change may be necessary so soon after the release of the trial decision, but I expressed my hope that the parties would find sufficient guidance within my reasons to resolve the question of child support and spousal support going forward once Z began his post-secondary studies. Unfortunately, the parties did not succeed in resolving the issues, necessitating the argument of this motion to change.
Issues
[10] On this motion to change, I must address the following issues:
a. Is there a material change justifying a change to the child and spousal support provisions of my previous order?
b. For what periods of time is table child support payable, and by whom?
c. What are the appropriate s. 7 expenses for the children?
d. What is the respondent’s income for support purposes?
e. Should income be imputed to the applicant?
f. How should the fact that the spousal support is no longer taxable to the applicant be accounted for in the support calculation, if at all?
[11] In considering these issues, the respondent asks that I consider an adjustment from May 2018 with respect to table child support, based on the fact that Z resided solely with the respondent from that time. He also seeks an adjustment to his support obligations on the basis of the applicant’s move to Florida in mid-2018. He does not seek that I review his income for the purposes of support paid in 2018, as that issue was determined at trial. Rather, he seeks that I determine his 2018 income for purposes of his 2019 support obligations, and his 2019 income for purposes of his 2020 support obligations. The parties agree that the respondent’s 2020 income cannot yet be determined, so prospective support calculations should, at this time, be based on the respondent’s 2019 income. Thus, I am asked to consider the impact of the changes in Z’s and the applicant’s residency with respect to the 2018 support calculations, and to consider the calculations for 2019 and 2020 having regard to the parties’ incomes, the s. 7 expenses and the tax benefits available to the applicant by virtue of being a US resident.
[12] I turn to the analysis of these questions.
Is there a material change justifying a change to the child and spousal support provisions of my previous order?
[13] Since trial, there have been material changes justifying a reconsideration of the support order. The parties did not share parenting of Z as the evidence at trial suggested they would. In addition, J and L have graduated from university, and Z has begun his post-secondary studies. The children’s s. 7 expenses have been high because all three children have studied at a university in the United States. The changing nature of the children’s expenses as they have entered and exited post-secondary studies is material, by virtue of the sheer size of the expense. The child support orders must be revisited due to the changing circumstances of the children. A change in child support may have an impact on spousal support.
[14] The parties allege that other material changes have also occurred. The respondent argues that the applicant’s relocation to Florida, where spousal support is not taxable in the hands of a US resident, is a material change justifying a decrease in his spousal support obligation.
[15] The applicant alleges that her health has deteriorated since trial, which she argues is a material change justifying a reduction in, or elimination of, the income I imputed to her at trial.
[16] Given my determination that the changes in the children’s circumstances are a material change requiring a fresh consideration of the support orders, it is not necessary to address whether the applicant’s health or move to Florida constitute material changes. Rather, the parties’ arguments about these issues will be addressed in my analysis of the proper quantum of spousal support.
[17] In considering the appropriate variation to support, if any, I am mindful of the guidance from the Supreme Court of Canada, that, once a material change in circumstances has been established, “[a] court should limit itself to making the variation which is appropriate in light of the change.” The court does not begin the task of determining support as if it were an initial support application: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 50.
[18] Moreover, an order varying spousal support must properly reflect the objectives set out in s. 17(7) of the Divorce Act, R.S.C. 1985, 2nd Supp., c. 3: L.M.P., at para. 50. That is, the order varying spousal support should:
a. Recognize any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;
b. Apportion between the former 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 former spouses arising from the breakdown of the marriage; and
d. In so far as is practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
Is table support payable for Z, and if so, for what periods of time, and by whom?
[19] To understand the parties’ positions on this issue, it is necessary to first understand where Z has been living since trial.
[20] As I have noted, at trial I accepted evidence that, despite the strained relationship between the applicant and Z in the past, parenting of Z would be shared. In fact, before all issues were determined in the trial, the relationship between Z and the applicant broke down again, and Z was residing solely with the respondent, who continued to pay set-off child support to the applicant.
[21] Z ceased residing with the applicant in May 2018, a month before he turned eighteen. He resided solely with the respondent from May 2018 to September 2018, when he moved to the United States for his studies. He resided in the United States from September 2018 - April 2019, after which time he returned to Toronto to reside with the respondent for the summer. In September 2019, he returned to the United States to study. When the COVID-19 pandemic necessitated the closure of universities in March 2020, he went to Florida to live with the applicant for three months. In June 2020, he returned to Toronto to reside with the respondent for the summer. Since September 2020, he has been again living in the United States, in a fraternity house.
[22] Thus, Z resided with the respondent for 10 months, from May to August 2018, May to August 2019, and July to August 2020. He resided with the applicant for three months, from mid-March to mid-June 2020.
[23] During that time, the respondent paid 16 months of set-off table child support to the applicant, from May 1, 2018 to August 31, 2019. On August 14, 2019, at a case conference, the applicant consented to a without prejudice order terminating the respondent’s table child support obligation.
[24] The parties disagree about whether any table support should be ordered for Z. The applicant argues that, at least prospectively, Z’s needs should be met by way of s. 7 expenses, as I ordered with respect to the parties’ two older children at trial. She argues that a formula that includes a component of table child support will not be a formula that can carry the parties much into the future, as Z is in the third year of a four-year program. She argues that I should assess spousal support on a without child, or adult child, basis.
[25] The respondent argues that table support adjustments are appropriate, in part due to the history of where Z has lived. He also argues that a summer table support calculation is appropriate, and notes that Z has spent his summers in Toronto with him, although he acknowledges that Z was in Florida with the applicant for about three months between March and June 2020, due to the pandemic.
[26] The respondent states that when the living situation of a child over 18 resembles that of a child under the age of majority, in that the child resides with one or both parents, is not earning an income and is dependent on his or her parents, a calculation of table support under the Federal Child Support Guidelines, S.O.R./97-175 will be appropriate: Senos v. Karcz, 2014 ONCA 459, 120 O.R. (3d) 321, at para. 39, citing Child Support Guidelines: Law and Practice, James C. MacDonald and Ann C. Wilton, 2nd ed., loose-leaf (Toronto: Carswell, 2004) vol. 1, at p. 3-10.
[27] I accept the statement above is true in most circumstances. In this case, however, I take note of the following:
a. There is a significant income discrepancy between the parties, with the respondent being the higher income earner;
b. The family has historically generously indulged, and the respondent continues to generously indulge, the children’s discretionary expenses, by payments to the children directly through bank transfers, and through payment of their credit card expenses. In this proceeding, the respondent claims these are s. 7 expenses;
c. The children have incurred significant s. 7 expenses as a result of choosing to pursue post-secondary studies in the United States, a plan pursued by the family for the children since at least the children’s high school years; and
d. For the period in question on this motion to change, Z has either lived at university or with the respondent, except for a brief three-month period when he lived with the applicant during which time the respondent continued to fund many of Z’s expenses. Since he began his university studies, he has lived six months with the respondent, three months with the applicant, and the remaining time at university.
[28] In my view, Z’s expenses, once he commenced post-secondary education, are better dealt with through the s. 7 analysis. This approach better acknowledges the manner in which this family has historically addressed, and continues to address, the children’s expenses.
[29] I thus conclude that the table support for Z should be changed from the order made at trial. Child support should be payable as follows:
a. From May 1, 2018 to August 31, 2018, full table child support shall be payable from the applicant to the respondent. During this time, Z had not yet commenced his post-secondary studies, and table support is appropriate, given that Z was, during this time, 17 years old, and then, after his 18th birthday, his situation closely resembled that of a child under 18.
b. Thereafter, Z’s expenses and needs shall be considered in the s. 7 analysis, and no further table support shall be payable by either party to the other.
Child Support Payment Credits and Other Adjustments Owing
[30] The respondent paid sixteen months of set-off table child support for Z until his obligation was terminated by consent order in August 2019. He paid set-off support for many months when the basis for a set-off child support payment plainly did not exist. The respondent’s payment of 16 months of set-off table child support to the applicant after May 1, 2018, totaling $71,232, shall be a credit to the respondent to be considered in the overall calculation of the parties’ obligations to each other.
[31] To this end, I note that the evidence before me establishes another necessary adjustment. In my trial reasons, I ordered the applicant pay the respondent an equalization payment of $222,329.48 in ten equal installments. The record establishes that the most recent installment of the equalization payment that the applicant owes to the respondent has not been paid. That amount, totaling $26,071.35 must also be reckoned with in the ultimate accounting of the parties’ obligations to each other.
What are the appropriate s. 7 expenses for the children?
[32] The parties accept the formula I laid out at trial, by which the respondent is responsible for 100% of the children’s s. 7 expenses. This formula remains appropriate for the reasons I described in my trial reasons. The parties disagree on the appropriate s. 7 expenses.
[33] According to the respondent, the s. 7 expenses I ordered at trial for 2018, which were then an estimate, turned out to be too low. However, he accepts that the s. 7 expenses for 2018 have already been adjudicated. He states that the s. 7 expenses should be adjusted for 2019 and forward to reflect the children’s actual s. 7 expenses.
[34] The applicant argues that much of what the respondent seeks to characterize as s. 7 expenses are not appropriate s. 7 expenses. She states that the respondent may have chosen to pay for those expenses for the children, but she disputes that they can properly be considered s. 7 expenses, which have the effect of reducing her spousal support payments.
[35] The respondent claims s. 7 expenses for the parties’ two younger children in 2019. Z attended university for the full year, while L attended university for the first six months. In 2020, he claims s. 7 expenses for Z only, L having graduated by then.
[36] To support his claim for s. 7 expenses, the respondent provides evidence and receipt of the expenses he deposes he has incurred for the children. These include:
a. Tuition;
b. Books;
c. Residence;
d. Meal plan;
e. Travel to and from university from home;
f. Travel and vacation expenses to other locations from university;
g. Local travel around the university, including Uber fees;
h. Sorority fees;
i. Fraternity fees which, in the 2020-2021 academic year, include residence and meal plan fees, as Z is living at the fraternity house;
j. Other food expenses, including UberEats;
k. Clothing expenses;
l. Toiletries;
m. Health and dental expenses;
n. Grooming expenses, including hair and nail salons; and
o. Additional miscellaneous expenses on the children’s credit cards.
[37] When considering what are appropriate s. 7 expenses related to a child’s post-secondary education, the court’s first task is to identify the expenses which have some relationship to the child’s education: Allaire v. Lavergne, 2014 ONSC 3653, [2014] W.D.F.L. 4186, at paras. 83-84. Health-related expenses do not qualify as post-secondary expenses, but rather, are their own category of s. 7 expenses.
[38] In Allaire, the court found that clothing and entertainment expenses were expenses related to the child’s post-secondary education. It allowed $1,800 in clothing and $800 in entertainment expenses over a period of about one and a half years[^1], a reduction of the claimed expenses. In assessing the appropriate quantum of expenses, the court considered whether the expenses were necessary in the child’s best interests, whether the expenses were reasonable in relation to the means of the parties, the family’s spending pattern and lifestyle prior to the separation, the parties’ incomes, the bursaries the child received, and the fact that the child worked prior to commencing his program of study and could have contributed to the expenses: Allaire, at para. 96.
[^1]: The applicant claimed expenses over two and a half years, but the court disallowed almost all the expenses for one calendar year when the child was mostly not at school and was working.
[39] I turn to consider what of the claimed expenses are appropriate s. 7 expenses.
L’s s. 7 Expenses in 2019
[40] The respondent claims $48,856.62 CAD in s. 7 expenses for L in the 2019 academic year. L graduated about half way through the year. In calculating these expenses, the respondent has used a USD exchange rate of 1.35, a rate to which the applicant does not object.
[41] The record demonstrates that L’s 2019 expenses for tuition, and miscellaneous university fees, after application of the scholarships and grant she received, total $13,211 USD. The evidence indicates that L paid rent in 2019, although the lease agreement does not disclose what she paid in rent. The respondent claims $4,250 USD in rent expenses for what appears to be a four-and-a-half- month period in 2019 based on the lease. This is a reasonable amount for rent, and consistent with the applicant’s submissions about the reasonable cost of student housing. In my view, these are all appropriate s. 7 expenses related to L’s post-secondary education.
[42] I note the applicant raised a lukewarm objection about the appropriateness of sorority fees, but at $840 USD, these are minor in the scheme of things. I accept that the sorority fees were reasonable and necessary for L to participate in important aspects of university life, especially given the way in which this family historically managed the children’s expenses and activities.
[43] The respondent’s summary of L’s 2019 expenses calculates her tuition, rental, health and dental expenses and her sorority fees at $26,423.15 CAD. This figure is supported in the record.
[44] The respondent’s summary calculates L’s credit card expenses in 2019, up to the period when she graduated university, at $22,433.47 CAD, or almost twice her tuition, rent, health, dental and sorority fees.
[45] Undoubtedly, some of these expenses are appropriate s. 7 expenses. Were I to limit appropriate s. 7 expenses for L to the $11,573.15 CAD, related to tuition, rent, health and dental, and sorority fees, L would have nothing to eat while at university, no books from which to study, and no ability to travel between her home and university, for example.
[46] However, credit card expenses in the amount sought work out to a budget to meet additional living expenses after tuition, health and rent of almost $3,800 CAD per month. This is not a reasonable budget for a university student to meet her nutrition and other miscellaneous needs.
[47] In my view, rather than considering each individual entry on the credit card statements, it is more appropriate to consider what an appropriate budget is for L’s additional expenses. Even taking into account the generous lifestyle that the parties provided their children, even when it was beyond their means, $1,000 CAD per month for six months[^2] to meet L’s additional expenses is more than sufficient. On top of this, I add $1,000 CAD to account for any books or resources she required in the course of her studies, and $1,000 CAD for travel expenses to and from school.
[^2]: The evidence about L’s expenses suggests she paid rent for a period of four-and-a-half months in 2019, and there is no evidence as to whether she paid last month’s rent up front, as is common. However, the other evidence in the record suggests she was studying for a half year in 2019. I have chosen to use a six- month period to calculate her s. 7 expenses as a result.
[48] I thus conclude that L’s s. 7 expenses for 2019 are $34,423.15. CAD. I acknowledge this is significantly less than the $45,000 per term that the parties’ estimated for a student at the American university. It appears that the estimate was not seriously contested at trial, and perhaps did not take into account L’s scholarship and grants. In any event, the record before me on this motion to change does not justify a higher amount for s. 7 expenses for L than $34,423.15CAD.
Z’s s. 7 Expenses in 2019
[49] The respondent claims s. 7 expenses for Z in 2019 for January-August, in the total amount of $111,379.13 CAD, calculated using a 1.35 exchange rate. In an affidavit, he estimated Z’s total 2019 expenses at $125,000. The record is somewhat confusing regarding the claims and the back- up documentation. I analyzed the claims made and the receipts provided in the record.
[50] Included in the claim for $111,379.13 for January-August expenses, the respondent claims that tuition and books total 88,652.95 CAD, and health and dental expenses total $2,058.20 CAD. These are appropriate categories of s. 7 expenses, but it is unclear to me how the respondent has calculated the amounts paid.
[51] The respondent prepared a chart indicating that tuition for January-August 2019 was $63,396 USD, while fraternity fees were $3,950, and books were $2,236.26. He calculated health and dental expenses at $2,058.20.
[52] The back-up documentation from the university shows a semester total for spring 2019 of $33,906 USD less a university grant of $2,500 USD, for a total of $31,406 USD, or $42,398.10 CAD. There is a bookstore receipt confirming charges of $2,236.26 USD, or $3,018.95 CAD. There are fraternity receipts for $1,500 US and $2,450 USD, or $5,332.50 CAD. The back-up documentation for the health expenses also does not correlate to the amount on the respondent’s chart. In this instance, the backup documentation suggests that for the eight-month period from January - August 2019, Z’s health insurance premium totaled $2,581.20 CAD.
[53] These amounts together, from January to August 2019, total $53,330.75 CAD.
[54] In addition, Z has miscellaneous credit card expenses of $15,335.98 CAD, or about $7,667.99. That totals nearly $2,000 CAD in monthly credit card fees.
[55] Z’s credit card expenses include travel to Montreal, Uber rides, Spotify and iTunes charges, expenses from a holiday at Mount Tremblant, fast food expenses, LCBO charges, drug store charges, and gas station charges. There is also documentation showing miscellaneous bank transfers to Z from the respondent without explanation as to their purpose.
[56] While I agree some expense related to food and travel and miscellaneous needs is appropriate, in my view, the amount claimed is not reasonable, even having regard to the generosity that the parties have shown their children. During the period of time that Z lived in residence with a meal plan, $800 monthly, plus $1,000 for travel to and from university, should be sufficient to meet his needs. I thus allow an additional $4,200 CAD in expenses for the winter term. During the summer months, while he was living with the respondent, a monthly budget of $800 remains appropriate, for an additional $3,200.
[57] Thus, Z’s allowable s. 7 expenses for the period January-August 2019 total $60,730.75.
[58] Z’s fall term expenses from the university include his tuition, room, and meal plan, as well as other fees. After applying the grant he received from the university, these costs total $32,705.08 USD, or $44,151.86 CAD.
[59] In addition to this amount, it remains appropriate to make provision for Z’s health insurance premium, which I calculate to total $1,290.60 CAD for four months. I also find that it is appropriate to allot $1,000 CAD for travel to and from the university once in the fall term, and to provide for $800 CAD monthly for four months in miscellaneous expenses. In addition, I allow a further $1,000 CAD for books in the fall term.
[60] I thus conclude that the allowable s. 7 expenses for the period September-December 2019 total $50,642.46.
[61] In total, then, Z’s s. 7 expenses for 2019 are $111,373.21. When added to L’s s. 7 expenses for 2019, the children’s totals. 7 expenses in 2019 are $145,796.36.
Z’s s. 7 Expenses for 2020
[62] The respondent claims $120,000 CAD for Z’s s. 7 expenses in 2020, which he notes is slightly reduced from his claim in previous years due to some refunds issued by the university after classes shut down due to the pandemic.
[63] In the 2020 spring term, Z incurred fees, including tuition, residence and meals of $28,694.92 USD, after application of the university grant he received and a refund of residence, meal plan and internet fees due to the university shut-down for the pandemic. In the 2020 fall term, Z incurred tuition and related fees of $27,811 USD after application of his university grant. The fall 2020 term did not include a residence or meal plan cost. In the summer of 2020, Z incurred tuition fees of $2,197.06 USD, or $3,188.09 CAD. These university fees are all reasonable and necessary post-secondary expenses. After applying the exchange rate of 1.33, used by the respondent for 2020, and not objected to by the applicant, the cost of these s. 7 expenses is $78,340.96 CAD.
[64] In addition, there are receipts for Z’s fraternity fees. In spring 2020, these total $3,496 USD. In the fall, the fraternity fees also include residence and a meal service. These fees total $6,795 USD. Fraternity fees for 2020, which as noted, include a residence and meal component, are thus $13,687.03 CAD. These are reasonable and necessary post-secondary expenses, given this family’s history.
[65] In addition to this amount, the respondent seeks an additional, estimated $12,500 in s. 7 expenses, for expenses such as books, toiletries, food outside of the meal plan, travel to and from school, and transport while at school. In my view, it is reasonable to allow the following estimated expenses:
a. Travel to and from school at $1,000 on two occasions, for a total of $2,000 CAD;
b. Monthly allowance of $800 for toiletries, entertainment, other living expenses, including food bought outside of the meal plan, for a total of $9,600; and
c. Books, at $3,000 CAD per year.
[66] I thus conclude that Z’s s. 7 expenses for 2020 are $106,627.99 CAD.
What is the respondent’s income for support purposes?
[67] As I have noted, the respondent is an orthopedic surgeon. Throughout the duration of time that is relevant on this motion to change, he has earned all his business income through a corporation known as Louis Weisleder Professional Corporation (“PC”). He is the sole officer, director, and shareholder of PC. PC has no other source of revenue besides the income the respondent earns through his medical practice.
[68] The parties disagree about how to calculate the respondent’s income for support purposes. Each party retained an expert, who was properly qualified in oral evidence before me. The experts themselves helpfully worked together to narrow the scope of their disagreements. In evidence, both experts adopted a chart they had prepared and jointly signed evidencing their agreed-upon calculations. While there remain some minor differences between them with respect to the appropriate adjustments to income, the experts agreed the differences were not material, and as a result, I will spend no time on those differences. Importantly, both experts agreed that:
a. The respondent’s income for support purposes in 2018, if calculated using a pre- tax corporate income approach, is $670,000.
b. The respondent’s income for support purposes in 2018, if calculated using a dividend approach, is $826,000.
c. The respondent’s income for support purposes in 2019 should be calculated using a pre-tax corporate income approach. Using a corporate pre-tax income approach, the respondent’s 2019 income is $658,000.
[69] It is apparent, then, that the sole material difference between the experts is whether the proper method to calculate the respondent’s income in 2018 is the dividend approach, or the pre- tax corporate income approach.
[70] The dispute between the experts as it relates to 2018 comes down to this: in 2018, PC declared a $700,000 dividend to the respondent, an amount significantly greater than the entirety of the corporation’s pre-tax corporate earnings. The respondent only withdrew about $385,000 from the corporation. The remainder of the dividend was used to reduce the respondent’s shareholder loan account.
[71] The shareholder loan account had risen because the respondent withdrew funds from the corporation in the past, to pay his personal obligations, his children’s expenses, and the support payments to the applicant. These funds taken were not only funds from the corporation’s revenue. They were not taken from retained earnings, of which there are none in the corporation. Rather, it appears that the funds came from (i) bank debt taken on by the corporation; (ii) deferred corporate tax payments to CRA by the corporation; and (iii) deferred HST payments to CRA by the corporation. In other words, as he had been doing throughout the marriage, the respondent was borrowing money from the corporation that it didn’t have, placing the corporation in a debt position to the bank and to CRA.
[72] In brief, the respondent’s expert states that, in these circumstances, the pre-tax corporate income approach offers a consistent approach to ensure that the respondent’s earnings are the basis from which his income for support purposes is calculated. In contrast, the applicant’s expert chooses the approach that yields the higher income for support purposes year over year, arguing that is what the Child Support Guidelines requires, and that consistency is not important.
[73] Section 16 of the Child Support Guidelines provides that a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form and is adjusted in accordance with Schedule III.
[74] Where the spouse is a shareholder, director or officer of a corporation, and the court is of the opinion that the amount of the spouse’s annual income as determined under s. 16 does not fairly reflect all the money available to the spouse for the payment of child support, s. 18 of the Child Support Guidelines permits the court to take other steps including determining the spouse’s annual income to include all or part of the pre-tax income of the corporation for the most recent taxation year.
[75] The parties disagree on the import of Plese v. Herjavec, 2018 ONSC 7749, 18 R.F.L. (8th) 292. In Plese, Mesbur J. stated, at para. 281, that the process for determining income is clear: the court begins with line 150 income, and then makes the mandated adjustments. The court then considers whether this results in the fairest determination of income. If it does not, the court turns to the adjustments in s. 18. Beyond this reminder as to the appropriate process for calculating income, I do not find Plese terribly helpful, as the facts in that case differ greatly from the facts in this case.
[76] Here, if we begin with the respondent’s 2018 income and make the adjustments the experts undertook using the dividend approach, the respondent ends up with an income for 2018 of $826,000. In my view, this is not the fairest determination of his income for 2018. How can it be, when (i) his pre-tax corporate income, representing his actual earnings, was substantially less than this at $658,000, (ii) he actually drew about $385,000 from the corporation, (iii) the company has no retained earnings, and (iv) to the extent the respondent has been able to withdraw greater amounts from the corporation than the company’s pre-tax corporate income in prior years to meet his obligations (including spousal support) he has done so by causing the company to take on bank debt, and to default on the corporation’s taxes and its HST remittances?
[77] In my view, the pre-tax corporate income approach is the most appropriate approach to use to calculate the respondent’s 2018 income for support purposes, because:
a. When I calculated his income at trial, I used a pre-tax corporate income approach. The experts agree the pre-tax corporate income approach is appropriate in 2019. Maintaining the same approach to the calculation of the respondent’s income year over year is sensible because it offers consistency and avoids double-counting or under-counting year over year.
b. Using the corporate pre-tax income approach ensures that the respondent’s income for support purposes is directly related to his income, not accounting entries or debt in the corporation. If he were a T4 earner and took on debt, his debt would not be considered income for support purposes. Debt should not be considered income just because it is held inside a corporation.
[78] I thus conclude that the respondent’s income for support purposes in 2018 is $670,000, and in 2019 is $658,000.
What is the applicant’s income for support purposes?
[79] At trial, I imputed income to the applicant in the amount of $50,000 CAD annually, which works out to about nine hours of client care as a speech and language pathologist. I imputed income based the applicant working part-time hours because the evidence established that the applicant had a history of mostly part-time work during the marriage, and because she had significant health concerns that, while well-managed, limited her ability to work.
[80] The applicant argues that her health has deteriorated, and she is unable to earn an income at the level I imputed, or indeed, at any level.
[81] In support of her argument, the applicant attaches letters from medical professionals to her affidavit. Most of her supporting documentation is brief, and not very detailed. More problematically, it is largely hearsay. There is no affidavit from a treating medical professional opining on her inability to work, or what restrictions there are on her ability to work. There is no evidence of a treatment plan, or of how long her ability to work may be restricted.
[82] The applicant has included with her affidavit some clinical notes and records that provide some information about her health, as well as her own evidence. I accept that the applicant continues to have long-term, ongoing health concerns. These include ongoing monitoring for cancer, and treatment with tamoxifen, psoriatic arthritis, depression, anxiety disorder, and issues with her neck and low back, severe spinal canal stenosis and spondylolisthesis.
[83] I accept the evidence in her affidavit that there are concerns about her ability to work and perform tasks of daily living at full capacity. However, that does not mean that she is unable to work at a reduced capacity.
[84] After moving to Florida, in September 2018, the applicant took on work as an independent contractor through CAP Speech Therapy, earning between $55-90 per hour depending on the type of assessment or treatment she was performing. In March 2019, the applicant entered into an updated contractor agreement which provided her with a modest increase in wages.
[85] However, the applicant eventually had a falling out with CAP. She deposes she was unhappy that she was not getting more referrals from them. Her contract with CAP terminated at the end of January 2020.
[86] In October 2019, the applicant entered into a separate independent contractor agreement with another company to try to augment her monthly income. She received her first client from this agency in January 2020.
[87] Subsequently, she opened her own speech pathology company, delivering in person speech and language therapy, which she has been advertising through an Instagram account on social media which appears to have 78 followers. It is unclear if she is doing anything to promote the business beyond her 78 followers.
[88] She deposes that she has also been looking for alternative employment, and she has applied for several positions. She was hired by one client who she sees weekly for 45 minutes at $85/hr.
[89] She deposes that many of the speech and language pathologist positions in Florida require Spanish-English bilingualism, or full-time hours, neither of which she is able to provide.
[90] It is apparent, given the applicant’s health concerns, that it is not safe for her to be delivering in-person speech language therapy during the pandemic. The respondent accepts that the applicant’s health status requires her to take extra precautions against contracting COVID-19. However, he argues that the applicant could provide speech language therapy virtually, and as a result, expand the reach of her business beyond her immediate area, to provide services throughout Florida, and indeed, she could even see her former, and new, clients in the Toronto area.
[91] The applicant deposes that her education, training and experience does not support a conclusion that she is qualified to offer tele-therapy. She deposes that, before COVID-19, “it was not readily used in urban cities…nor taught in any grad school classes.” She deposes that the American Speech Hearing Association just began providing treatment guidance, usage logistics, and health care policies, with respect to tele-therapy. She states that tele-therapy has “boomed” but “mainly for the youngest speech language pathologists and new graduates who have likely been using computers their whole lives.” She suggests that she is not technologically savvy.
[92] In effect, the applicant’s argument is that she is too set in her ways to learn a new approach to delivering speech language therapy. I reject this argument.
[93] The applicant has demonstrated ease and comfort with technology since trial, when her Instagram posts were an issue. She participated in the court’s proceedings through zoom without difficulty.
[94] Her evidence is that tele-therapy is new for many speech language pathologists, given that the American Speech Hearing Association has only just started providing treatment guidance. She is not, therefore, in a worse position that others who primarily practiced in person. The applicant is an intelligent woman and an experienced speech language pathologist. There is no reason she cannot learn to deliver tele-therapy. Moreover, she continues to have an obligation to do what she can to be become self-supporting. She still has many years of working life ahead of her and, at least during this pandemic, she can learn to deliver speech language therapy remotely.
[95] Accordingly, I am not satisfied on the evidence that her health does not allow her to work at the level I imputed at trial. Nor am I satisfied that she is unable to learn to deliver speech language therapy remotely.
[96] In my view, the applicant remains able to earn an annual income through the delivery of speech language therapy services in the amount of $50,000 CAD.
The Non-taxability of Support in the Applicant’s Hands
[97] Last, I turn to the non-taxability of support in the applicant’s hands.
[98] The parties agree that the applicant, as a US resident, no longer has to pay taxes on the spousal support she receives. There is some confusion as to when they agree she was able to avoid paying taxes on her support, and some confusion as to whether she has, in fact, paid taxes on her support in the United States. The record includes multiple versions of her tax returns, including some that may never have been filed. The applicant’s evidence about her tax returns in the United States is, at best, confusing, and at worst, misleading. In the end, however, it will become clear that the applicant’s evidence about her tax returns is tangential to my analysis.
[99] The respondent’s argument can be described in this way. The SSAGs assume that the support payor and support recipient are both Canadian taxpayers. The expectation is that the support payor will deduct the spousal support payments and the support recipient will pay tax on them. Now that she is a US resident, the applicant no longer has to pay tax on the spousal support payments. The savings should not belong only to her, because that would provide her with a windfall under the SSAGs. Rather, her net tax savings should be quantified and shared equally.
[100] To this end, the respondent’s expert has calculated the applicant’s tax savings by preparing a mock Canadian tax return in which the applicant’s spousal support is taxed. She then compared the mock tax return to the applicant’s US tax return and calculated the tax savings accruing to the applicant as a result of not paying tax on spousal support. She calculated a formula based on the respondent’s tax rate, and concluded that to share the net tax savings, one multiplies the applicant’s tax savings by a factor of 68.273%, the result of which is the appropriate reduction in the respondent’s spousal support obligation to share the net tax savings between the parties equally.
[101] The applicant’s expert agrees that the formula the respondent’s expert has created is sound. However, he disagrees with the inputs used to create the applicant’s net tax savings.
[102] The applicant’s position is that there should be no sharing of her net tax savings, in part because it has not been proven that she has net tax savings. She argues that the respondent’s calculation is too simplistic because it ignores all the other tax deductions and credits to which she would be entitled. Specifically, for the time period in question, she argues that she would have had tax credits available to her in Canada for her medical expenses, and deductions related to her legal fees. She also notes that in the United States she must pay for health insurance to obtain coverage for health care that would be covered by OHIP and paid for by her Canadian taxes if she remained a Canadian taxpayer. She argues that the respondent should get no deduction from his support payments, and he is none the worse off under the SSAGs in any event.
[103] The respondent disputes many of the applicant’s medical expenses, arguing they are not deductible in Canada. He argues that considering the applicant’s personal deductions is not appropriate because these can change year over year. Rather, he states, we should compare apples to apples and look at the effect of the non-taxability of spousal support payments in the United States only, ignoring any other deductions or credits that might be available to the applicant to reduce her taxes.
[104] In support of his argument for sharing the net tax savings equally between the parties, the respondent relies on Droit de la famille – 1782, 2017 QCCS 191 at paras. 186-194. There, the support recipient had relocated to the United States, and the support payor sought to take advantage of a tax treaty that provided for the non-taxability of spousal support payments to an American recipient.
[105] The court found that the support recipient’s net needs in that case were over $666,000 per year, and “it is manifest that the Husband does not have the means to provide her with this amount of net spousal support which would cost him in excess of $1.3 M”: at para. 191. The court concluded that the only means by which spousal support could meet the wife’s needs was if she availed herself of the tax treaty. As a result, the court ordered the husband to pay monthly spousal support of $55,540 - an amount which in effect allotted the entirety of the tax savings to the husband, in order for him to meet the wife’s needs in a manner that he could afford.
[106] It is apparent that Droit de la famille – 1782 represents a decision in highly unusual circumstances, where the court fashioned a support ruling around the tax savings in order to both meet the significant needs of the support recipient and ensure the support payor was able to pay the support required.
[107] In Boju v. Corr, 2009 CanLII 3781, Harvison Young J. heard a motion for interim spousal support brought by an American wife against her Canadian husband. The husband objected to paying spousal support on a number of grounds, including that the guidelines are based on assumptions relating to taxation rates that were not applicable, because the wife and child lived in the United States. In fairly brief reasons, Harvison Young J. noted that the wife had “addressed these concerns by dramatically reducing the amount she is claiming”: at para. 11. Justice Harvison Young concluded that the interim support sought was less than half the lowest amount payable under the guidelines, an amount ample to take the factors relating to the differences in taxation into account. She thus ordered spousal support at $500 per month on an interim basis, without prejudice to the right of either party to seek adjustment at trial on a retroactive or prospective basis.
[108] In my view, neither of these cases is terribly helpful to the issue before me. In Boju, the court was dealing with a limited claim for support on an interim, without prejudice, basis. In Droit de la Famille – 1782, the court was dealing with a highly unusual circumstance, with a support recipient with significant needs and a support payor with means to pay over $55,000 monthly in support, but apparently not the means to pay more.
[109] I take these cases to be illustrations of the principles expressed by the Court of Appeal for Ontario in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at paras. 96-98:
Importantly, the [SSAGs] do not apply in many cases. They specifically do not apply at all in certain enumerated circumstances, including where spouses earn above $350,000 or below $20,000. Furthermore, they only apply to initial orders for support and not to variation orders. They are thus prospective in application. They do not apply in cases where a prior agreement provides for support and, obviously, in cases where the requisite entitlement has not been established. They will not help in atypical cases. As well, there will be regional variations, as well as rural and urban variations, that may be seen to merit divergent results based on variations in cost of living or otherwise. Importantly, in all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.
Accordingly, the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a set period of time. They must be considered in context and applied in their entirety, including the specific consideration of any applicable variables and, where necessary, restructuring.
Importantly, the Guidelines do not impose a radically new approach. Instead, they suggest a range of both amount and duration of support that reflects the current law. Because they purport to represent a distillation of current case law, they are comparable to counsel's submissions about an appropriate range of support based on applicable jurisprudence. However, if the Guidelines suggest a range that conflicts with applicable authorities, the authorities will prevail.
[110] Thus, in my view, recognizing that the SSAGs are only a guide, the court is free to consider the tax consequences to the support payor and support recipient when determining the appropriate quantum of spousal support. Tax consequences are but one factor to be considered when determining the appropriate spousal support award in the context of all of the circumstances relevant to the parties before the court, including their relationship, income, means and needs, and in the context of the objectives of spousal support.
[111] In any given circumstance, a court may consider it appropriate to adjust the spousal support payable to account for any relevant differing tax treatment, by adjusting where within a range, or outside of the range, appropriate spousal support falls, as was done in Boju, and in Droit de la famille – 1782.
[112] Section 19(1)(c) of the Child Support Guidelines also provides an alternative approach, whereby a court could impute income to the support recipient to account for tax savings in the recipient’s hands. Although the applicant raised this approach as an alternative, no party before me argued in favour of this approach, and in my view, it is inherently difficult to approach a support recipient’s income calculation in this manner. If one calculates tax savings based on spousal support received, then imputes income to the recipient as a result of those tax savings (grossed up, presumably), one has altered the calculation on which the initial amount of spousal support was determined. This is a calculation that is forever chasing its own tail. While I would not foreclose the utility of such an approach in the appropriate case, in my view, Boju and Droit de la famille – 1782 demonstrate a clearer way of addressing the impact of tax savings, consistent with the basic principles that underlie spousal support calculations as articulated in Fisher.
[113] I thus conclude that I have the jurisdiction to adjust spousal support to consider the impact of the non-taxability of support in the applicant’s hands. However, in this case, I decline to order any sharing of the net tax savings or to adjust the spousal support payment as a result of the tax savings, if there are any, for the following reasons:
a. I am not satisfied as to the amount, if any, of the applicant’s tax savings. The respondent’s expert calculated the savings having regard only to the tax payable on spousal support to a recipient in Canada as opposed to the United States. While a simple approach, it ignores many factors that actually impact what the applicant’s tax savings are (or would be, having regard also to her imputed income). It also ignores at least one substantial tax-related difference between Canada and the United States, which is that Canadian taxpayers have access to universal health care which covers many medical expenses while American residents must purchase their insurance separately, from net-of-tax funds.
b. A proper calculation of tax savings related to support would require a Canadian and American tax return to be prepared, calculating the taxes paid on spousal support, actual income, and imputed income, having regard to appropriate deductions in both regimes, to calculate the notional tax savings in any given year before it could be shared between the parties, or support adjusted, as a result.
c. In a high conflict case such as this one, undertaking that kind of annual analysis is an invitation to incur expenses that may quickly swamp the savings to be had. The parties would have to pay an accountant, and lawyers would likely be involved to negotiate the sharing of tax savings. Court proceedings, with their attendant costs, could well follow. A regime that required an annual calculation of the tax savings between Canada and the United States would be cumbersome, expensive, and bound to provoke conflict between these parties. It would be entirely inconsistent with the primary objective, in that it would create an inefficient and costly annual step, leaving the parties in a state of constant conflict and negotiation, or litigation.
d. On the other hand, the respondent is no worse off by not having access to any of the applicant’s tax savings, if there are any. He is still able to deduct the entirety of his spousal support payments. If no adjustment is made to spousal support to account for the applicant’s tax savings, if there are any, he is in the same position he would have been in had the applicant remained in Canada.
e. The reasons why I ordered spousal support at the high end of the range at trial have not changed. The applicant remains at an economic disadvantage due to the roles the parties adopted during their 21-year traditional marriage. The applicant has borne the weight of the economic consequences of the relationship breakdown. The respondent’s evidence at trial, which I accepted, was that he could not continue to work in the manner that he had been working much longer; orthopedic surgery is physical work, and already at trial the respondent testified that he was losing the stamina required to continue to work at the pace he had sustained previously. For that reason, high end spousal support was necessary to address the fact that the applicant cannot reasonably expect spousal support to be paid in the quantum it has been paid over the long-term, because the respondent does not expect to be able to continue to work indefinitely.
f. The tax savings calculated by the respondent’s expert, while not negligible, are not so significant as to change the considerations that went into my determination that the applicant was entitled to high end spousal support. For example, the respondent’s expert calculated the tax savings for 2019, assuming (i) the applicant would have not had any other tax deductions or credits available to reduce her tax on spousal support in Canada; (ii) the applicant paid no tax on spousal support in the United States,: and (iii) ignoring the cost of tax-funded services like health care that the applicant would have to buy in the United States. On this basis, she calculated the applicant’s net tax savings in 2019 to be $34,213, of which the respondent claimed half the savings, or $15,899 annually on a net basis. In the context of these parties’ income levels, the history of their relationship, and the factors that led me to conclude that spousal support at the high end of the SSAGs was appropriate, I am not satisfied that this amount – which is a high water mark, and is based on assumptions I do not think can be sustained – justifies an adjustment to the applicant’s spousal support based on the non-taxability of spousal support to her in the United States.
[114] As a result, I conclude that the non-taxability of spousal support to the applicant in the United States shall have no bearing on her spousal support entitlement.
Support Orders
[115] My review of the issues above leads to changes in the support payable in a way that is consistent with the material change, here largely related to the changing circumstances of the parties’ children.
[116] From the period May 1 – August 31, 2018, the support calculation should reflect that Z resided full-time with the respondent, and full table support is owing to the respondent by the appellant for that period of time. It should reflect a $10,000 tuition tax credit to the respondent. No other changes are warranted. This calculation is attached at Schedule A and demonstrates that, for this period of time, the respondent owes the applicant $111,331 in monthly spousal support, while the applicant owes the respondent $461 in monthly table child support. The applicant’s contribution to the children’s s. 7 expenses is ignored.
[117] From the period September 1 – December 31, 2018, the support calculation should be varied to an adult child formula, under which no table support is payable. A $10,000 tuition tax credit shall be reflected. No other changes are warranted. This calculation is attached at Schedule B and demonstrates that the respondent owes the applicant $8,813 in monthly spousal support. The applicant’s contribution to the children’s s. 7 expenses is ignored.
[118] For 2019, spousal support shall be at the high end of the range and calculated using the following inputs:
a. The applicant’s income shall be imputed at $50,000 CAD;
b. The respondent’s income shall be $670,000 CAD;
c. The respondent shall have a $10,000 tuition tax credit, consistent with what he claimed on his 2018 tax return;
d. The s. 7 expenses for 2019 shall be $145,796.36;
e. The calculation shall be prepared allocating the applicant her share of s. 7 expenses, but she shall not actually be responsible for paying her share to the respondent;
f. There shall be no table support for any of the children; and
g. There shall be no adjustment to spousal support as a result of the non-taxability of support in the applicant’s hands.
[119] The calculation for 2019 is attached at Schedule C and demonstrates that the respondent owes the applicant monthly spousal support payments of $12,130. Her contribution to the children’s s. 7 expenses is ignored.
[120] For 2020, spousal support shall be at the high end of the range and calculated using the following inputs:
a. The applicant’s income shall be imputed at $50,000 CAD;
b. The respondent’s income shall be $658,000 CAD;
c. The respondent shall have a $5,000 tuition tax credit;
d. The s. 7 expenses for 2020 shall be $106,627;
e. The calculation shall be prepared allocating the applicant her share of s. 7 expenses, but she shall not actually be responsible for paying her share to the respondent;
f. There shall be no table support for any of the children; and
g. There shall be no adjustment to spousal support as a result of the non-taxability of support in the applicant’s hands.
[121] The calculation showing support for 2020 is attached at Schedule D and shows monthly spousal support payments of $14,272, while the applicant’s responsibility for s. 7 expense is ignored.
Overall Calculations
[122] Based on these calculations, from May 2018 to October 31, 2020, the respondent owed the applicant the following:
a. Monthly spousal support from May-August 2018 of $11,331 for a total of $45,324;
b. Monthly spousal support from September-December 2018 of $8,813, for a total of $35,252;
c. Monthly spousal support in 2019 of $12,130, for a total of $145,560; and
d. Monthly spousal support up to November 30, 2020 of $14,272, for a total of $156,992.
[123] Thus, the respondent’s total obligation to the applicant from May 2018 to November 2020 was $383,128.
[124] The respondent’s total payments to the applicant made in that time frame are:
a. From May 2018 to August 2019, monthly spousal support and set-off child support payments of $15,614, totaling $249,824, and
b. From September 2019 to November 30, 2020, monthly spousal support payments of $11,162, totaling $167,430.
[125] Thus, the respondent has paid the applicant a total of $417,254, for the time period when he owed only $383,128. The respondent has thus overpaid the applicant by $34,126.
[126] In addition, the applicant owes the respondent the following:
a. Table child support from May-August 2018 of $461, for a total of $1,844.
b. The outstanding equalization payment of $26,071.35.
[127] Thus, the applicant’s total obligation to the respondent is $62,041.35.
[128] The parties have been making efforts to reconcile their obligations since before the trial concluded in 2018, and they have brought their dispute to the court to decide. Each has acknowledged certain obligations to the other as part of this process. There is no reason to relieve the applicant from any obligation to repay that which has been overpaid, or that which is owing. No hardship argument has been advanced in any event.
Outstanding Issues
[129] There remain outstanding issues. The applicant seeks life insurance as security for support, but it is not clear to me how much is sought. The respondent sought an order that he be allowed to deduct amounts owing to him from his monthly support obligation to the applicant. There is also the issue of costs.
[130] I will receive further written submissions on (i) whether it is appropriate for the respondent to deduct an amount from his monthly spousal support payments to the applicant as ongoing repayment of the funds he is owed, and if so, in what amount and for what duration, (ii) the quantum of life insurance necessary as security for support; and (iii) costs.
[131] Written submissions shall be exchanged as follows:
a. The respondent shall deliver written submissions on his request to deduct the amount he is owed from his ongoing support payments to the applicant, together with any submissions about any claim he makes to costs, by November 23, 2020. Submissions shall not exceed four pages, plus any calculations, bills of costs, and offers to settle;
b. The applicant shall deliver written submissions on the security for support she seeks, and any costs she seeks, by November 23, 2020. Submissions shall not exceed four pages, plus any calculations, bills of costs and offers to settle;
c. The parties shall deliver responding submissions by November 30, 2020, not to exceed three pages, plus any calculations or other necessary attachments;
d. The parties may deliver reply submissions, not to exceed two pages, by December 7, 2020;
e. Submissions may be delivered by email to the attention of my assistant, at Yomattie.evans@ontario.ca.
J. T. Akbarali, J.
Released: November 16, 2020.
COURT FILE NO.: FS-15-40716
DATE: 20201116
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Bedzow Applicant
– and –
Louis Weisleder Respondent
REASONS FOR JUDGMENT
J.T. Akbarali, J.
Released: Monday November 16, 2020