CHATHAM COURT FILE NO.: FS-17-00006726-0000

DATE: 20210330

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHERYL EDITH TOMPKINS

Applicant

– and –

GREG SCOTT TOMPKINS

Respondent

Jason P. Howie and Amy Johnson, for the Applicant

Brian P. Coulter, for the Respondent

HEARD: March 2 and 3, and September 3, 2020

REASONS FOR JUDGMENT

HOWARD J.

Overview

1The applicant, Cheryl Edith Tompkins, was born on April 30, 1963, and was 56 years of age at the time of the trial. Ms. Tompkins resides in Blenheim, Ontario.

2The respondent, Gregory Scott Tompkins, was born on September 22, 1961, and was 58 years of age at the time of the hearing. Mr. Tompkins is a non-resident of Canada; he has resided in the United States of America essentially since the parties’ separation in 2012. At the time of trial, he was residing in the state of Pennsylvania but was about to move back to Montgomery, Texas.

3The parties began living together in 1979, were married on September 5, 1981, separated on May 1, 2012, and divorced on October 15, 2013. Theirs was a relationship of some 33 years.

4There are two adult children of the marriage, namely, Darryl, born in 1982 (now 38 years of age), and Heather, born in 1985 (now 35 years). Both have been living independently for several years, and there is no issue or claim for child support. The parties have been blessed with grandchildren.

5Some months after their separation, the parties entered into a separation agreement, in or about November 2012, which provided for, inter alia, spousal support payments by Mr. Tompkins to Ms. Tompkins in the amount of $8,500 CAD per month, indexed. The agreement was entered into on the basis of, inter alia, Mr. Tompkins having a gross annual income of $233,820 USD, which was, at that time, comparable to $233,820 CAD. The separation agreement provided that the quantum of support could be varied in the event of a change in circumstances. The agreement also contained provisions requiring security for the spousal support.

6In early 2016, Ms. Tompkins became aware that, ever since the parties’ separation, Mr. Tompkins had been receiving a compensation package from his U.S. employer that was considerably greater than that contemplated by the separation agreement.

7Accordingly, by application commenced June 14, 2017, Ms. Tompkins brought this claim for retroactive spousal support going back to the date of the separation agreement, prospective spousal support in accordance with Mr. Tompkins’s current income, and security for the spousal support obligation.

8The position of Mr. Tompkins is that, while he does not contest the ongoing entitlement of Ms. Tompkins to spousal support and does not seek any reduction in the quantum required under the separation agreement, no retroactive variation in support is warranted in the circumstances of the instant case. Further, Mr. Tompkins submits that, from 2016 forward, his income in U.S. dollars has not materially increased and, accordingly, Mr. Tompkins requests the dismissal of the application.

9The trial of the application was heard before me on March 2 and 3, and September 3, 2020. The four witnesses who gave evidence at trial were Ms. Tompkins, a forensic accountant retained by the applicant, Mr. Tompkins, and a payroll analyst employed by his employer.

Factual Background

10I do not propose to summarize at length the evidence of each of the witnesses who testified at trial. There is no need to repeat all of that detail here. However, the parties should know that while I have considered all of the evidence presented at the hearing,¹ my decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in question or provide sufficient context for the determination of those issues.

The parties’ relationship

11The parties were quite young when they started their relationship. They both attended Aldershot high school in Burlington, Ontario, and they dated in high school for two or three years. The evidence of Mr. Tompkins was that they started to live together in 1979. Ms. Tompkins would have been about 16 years of age at the time. Ms. Tompkins did not complete her secondary school education; the last grade she completed was Grade 11. When they married in September 1981, Ms. Tompkins was just 18 years of age, and Mr. Tompkins was a few weeks shy of his 20th birthday.

12Their first child, their son, arrived a year later, in October 1982, when Ms. Tompkins was just 19 years of age. Their daughter followed three years later, in 1985, when Ms. Tompkins was 22 years of age. Following both births, Ms. Tompkins took time off work to care for the children.

13For his part, Mr. Tompkins has been with essentially the same company for 39 years as of the date of trial. He started as a gas plant operator with the Consumer’s Gas company in March 1981 – six months before the couple married – and he has remained employed with that company or its successors ever since then.

14It is fair to say that the marriage was a fairly traditional one. Ms. Tompkins was primarily responsible for the running of the household. At trial, she did not try to claim that Mr. Tompkins made no contribution – apparently, Mr. Tompkins did much of the cooking, as Ms. Tompkins was not particularly fond of cooking – but I am satisfied that Ms. Tompkins shouldered most of the household responsibilities, while Mr. Tompkins was the primary “breadwinner.” He acknowledged in cross-examination that, even when Ms. Tompkins was working, he always made significantly more money than did she. As well, Mr. Tompkins oversaw the family finances. He would, for example, tell Ms. Tompkins how much she could spend on groceries.

15The family moved residence at least four times during the marriage; however, all of those moves were within Kent County in southwestern Ontario (with the exception of Mr. Tompkins’s posting in Corning, in New York state). As of the date of separation, the matrimonial home was in Mitchell’s Bay, Ontario.

16That said, in September 2010, when Mr. Tompkins was then employed by the successor employer Talisman Energy USA, he was asked to take a position in Corning, N.Y., and the couple took up residence there. (The two adult children were living independently by that point.) However, they maintained the matrimonial home in Mitchell’s Bay, and while Ms. Tompkins would often travel and reside with Mr. Tompkins in Corning, N.Y., she did not always accompany him there.

17The original assignment in Corning, N.Y., was for a period of three years. Mr. Tompkins was working there at the time of separation in May 2012.

18The separation of the parties on May 1, 2012, ended a 33-year relationship and a marriage of over 30 years.

19The parties were divorced by divorce order dated October 15, 2013. The order was silent as to corollary relief.

20On September 15, 2014, Mr. Tompkins married his current spouse, Ms. Constance Pilkey (“Connie”).

The separation agreement

21The parties entered into a written separation agreement in November 2012, some six months after separation. The agreement was executed by Ms. Tompkins on October 23, 2012, and by Mr. Tompkins on November 21, 2012 (the “Separation Agreement”).

22Both parties were represented by experienced legal counsel in the course of the negotiation and preparation of the Separation Agreement.

23Prior to the execution of the Separation Agreement, Mr. Tompkins provided Ms. Tompkins with his financial statement sworn July 30, 2012, through which he disclosed, in relation to his income, that:

a. he was an employee of Talisman Energy USA;

b. in the previous year, his income from all sources was $281,484.10 (which was understood to mean $281,484.10 USD);

c. his current annual income was $233,820 USD;

d. he was also receiving other “non-cash benefits,” as follows:

i. he had the personal use of a company vehicle, representing a yearly market value of $2,151 USD;

ii. he had health benefits, representing a yearly value of $11,731.92 USD; and

iii. a housing allowance, representing a yearly value of $31,800 USD, beside which Mr. Tompkins had made the notation that, “[t]his allowance ends in June 2013.”

24I accept that, based on the information then known to him at the time he swore his July 2012 financial statement, Mr. Tompkins believed these representations about his income to be true.

25Subsection 2(a) of the Separation Agreement set out certain background facts that provide some context to the agreement. The paragraph reads, in part, as follows:

This Agreement is entered into on the basis of the following, among other facts:

i) The parties were married on September 5, 1981 at Burlington, Ontario.

ii) The parties have two adult children of the marriage who are no longer dependent.

iii) The parties have been living separate and apart from each other since May 2012 and there is no reasonable prospect of their resuming cohabitation.

iv) The husband is employed by Talisman Energy USA and his gross annual income from all sources is approximately $233,820 (US).

v) The wife is not employed. …

26It is common ground that, at the time the parties entered into the Separation Agreement, the Canadian dollar was essentially on par with the U.S. dollar. In other words, by reason of the representations in s. 2(a) of the Separation Agreement, the parties understood that Mr. Tompkins was earning the equivalent of $233,820 CAD.

27Section 8 of the Separation Agreement, entitled “Periodic Financial Provision for Wife,” established Ms. Tompkins’s entitlement to spousal support from Mr. Tompkins and addressed various incidents of the spousal support obligation. Subsection 8(a) set out the basic obligation of Mr. Tompkins to pay spousal support in the following terms:

Commencing October 1, 2012 and continuing on the first day of each month thereafter, the husband shall pay to the wife for her support and maintenance the sum of Eight Thousand and Five Hundred Dollars ($8,500) in Canadian funds each month in advance payable on the first day of each month thereafter until one or more of the following occurs:

i) the wife remarries or cohabits in a conjugal relationship continuously for a period of not less than three years;

ii) the wife dies; or

iii) the husband dies provided that the life insurance referred to in paragraph 11 herein is paid to the wife.

28I pause to note that s. 8(h) of the Separation Agreement provided for the indexing of the spousal support obligation, as follows:

Starting on October 1, 2013 and continuing on the first day of October of each year thereafter that spousal support is payable by the husband to the wife, spousal support will change by the indexing factor as defined in s. 34(6) of the Family Law Act from November of the previous year. If the percentage increase in the husband’s income is less than the indexing factor for the same period, the husband may choose to increase the wife’s spousal support by the percentage increase in his income. If so, the husband must provide the wife with copies of his income tax returns, schedules and attachments and notices of assessment (or American equivalent) for the previous two years, and any other documents the wife reasonably requires to confirm the husband’s income. [Emphasis added.]

29There was no issue between the parties at trial concerning indexing, and there was no evidence before me that Mr. Tompkins ever exercised the option contemplated by s. 8(h). I raise it here only to note the concluding language of the provision, which would require Mr. Tompkins to make updated income disclosure if he were to exercise his option. I would observe that s. 8(h) is the only instance in the Separation Agreement that provides for any obligation of any party to make updated income disclosure.

30To be clear, the Separation Agreement does not create any contractual obligation for either party to make annual income disclosure or to advise the other party of any change to one’s income.

31Section 13 of the Separation Agreement, entitled “Material Change in Circumstances,” contemplated that the quantum of spousal support payable under the Separation Agreement could be varied. Subsection 13(a) addressed that prospect in the following terms:

The amount of the payment and the terms for payment as provided by this Agreement for the support of the wife may be varied

i. prior to the granting of a divorce, …

ii. after a divorce is granted, if there is a change in circumstances, foreseen or unforeseen or foreseeable or unforeseeable, of the husband or wife such that a court of competent jurisdiction in the same circumstances would vary an order for support made in the same amount and terms under the Divorce Act on the effective date of this Agreement.

32Paragraph 13(b)(iii) of the Separation Agreement went on to provide that any variation under s. 13(a) “may provide, prospectively or retroactively, for an increase or decrease in the amount of the payment to be made to the wife for her support.”

33Section 32 of the Separation Agreement, entitled “Financial Disclosure,” contains certain representations of the parties. In particular, the representation in s. 32(d) provides that each party “acknowledges that there are no requests for further information or particulars that have not been met to his or her complete satisfaction.”

34The representation in s. 32(d) is consistent with the evidence at trial, in that, the evidence of Mr. Tompkins is that, after he delivered his financial statement of July 30, 2012, and leading up to the signing of the Separation Agreement, he never received any further request for financial disclosure by or on behalf of Ms. Tompkins that was not provided.

35Indeed, the unchallenged evidence of Mr. Tompkins is that at no time before he received notice of a pending layoff in 2016 (discussed below) did he ever receive a request by or on behalf of Ms. Tompkins for updated income or other financial disclosure. Similarly, Ms. Tompkins never provided updated disclosure of her income to Mr. Tompkins after the Separation Agreement was signed and before 2016.

36Moreover, at no time after the Separation Agreement was signed and before 2016 did Mr. Tompkins ever receive a request or any indication from Ms. Tompkins that she wished to review the issue of spousal support.

37Mr. Tompkins has continued each month to make the spousal support payments required by the Separation Agreement; there are no arrears of support owing.

The circumstances of the respondent husband and his income

38Mr. Tompkins has a Grade 12 education and, as referenced, has spent his entire working career with essentially the same employer (through its successors). At the time of trial, he was employed by Repsol Oil & Gas USA LLC (“Repsol”) in the position of Manager of Stakeholder Relations.

39During the course of his employment with Repsol (and its predecessors), Mr. Tompkins was required to relocate his residence on multiple occasions. Indeed, the week following the trial, Mr. Tompkins was scheduled to move residence from Pennsylvania back to Texas, and he testified that the move back to Texas would be his fifth move since he first went to work in the U.S.A. The details of the various moves are not particularly relevant to the issues at hand.

40That said, one of the moves that is relevant for present purposes is Mr. Tompkins’s purchase of a residential home on Forest Heights Lane in Montgomery, Texas, which was purchased just before his marriage to Connie in September 2014. Mr. Tompkins recalled that, to the best of his memory, he paid $280,000 USD for the Forest Heights home. His testimony was that, following his separation from Ms. Tompkins, he had little cash on hand to fund a down payment for the purchase of a home. Accordingly, he funded the purchase of the Forest Heights home by collapsing and withdrawing from his pension plan – that is, the defined contribution pension plan available to him through his employer, which was administered by Sun Life, which he described as his “Sun Life RRSP.”

41The evidence of Mr. Tompkins was that the Sun Life RRSP had a value of some $330,000 CDN. His recollection was that once he collapsed the fund, after paying the considerable tax amount owing as a result of the withdrawal, he was left with about $165,000 CDN, which, to the best of his recollection, he converted into about $110,000 to $120,000 USD and used to fund the down payment on the Forest Heights home.

42In January 2016, Repsol issued a notice of impending lay-off to Mr. Tompkins. The lay-off was to be effective March 15, 2016. Mr. Tompkins knew that he could not continue to reside in the U.S. without health benefits, which were considerably if not prohibitively expensive, and so he began to apply for alternative employment positions in Canada. He interviewed for a full-time position with the Ontario Ministry of Natural Resources, stationed in London, Ontario, and, ultimately, he was offered the position, which he accepted. The position offered a salary of about $95,000 CDN.

43The evidence of Mr. Tompkins was that within a few days of receiving the lay-off notice in January 2016, he spoke with Ms. Tompkins to advise her that he had been laid-off by Repsol and that he would be returning to Canada, hopefully, to take up continuous employment. The gist of his evidence was that he placed Ms. Tompkins on notice that he would likely no longer be earning the same level of income and, as such, they would have to consider a variation of the amount of spousal support to be paid to Ms. Tompkins.

44Fortunately, Mr. Tompkins never did lose his employment with Repsol. The company approached Mr. Tompkins before March 15, 2016, and asked him if he would stay on with them until November 30, 2016, to which he agreed. As matters turned out, Repsol cancelled the lay-off notice before the end of November 2016, and Mr. Tompkins declined the position with the Ministry in London.

45However, by that time, and certainly no later than September 2016, both the parties had retained legal counsel for the purposes of negotiating a variation of the spousal support payable under the Separation Agreement. While the parties were unable to reach a resolution, it was through those negotiations that Ms. Tompkins learned that in the years since the separation, Mr. Tompkins had been earning considerably more than the income level contemplated by the Separation Agreement. As I have said, the application of Ms. Tompkins was issued on June 14, 2017.

46One of the central issues at trial was the determination of Mr. Tompkins’s income. Given that he is not a resident of Canada, Mr. Tompkins does not file a Canadian income tax return. Rather, he files a Form 1040, U.S. individual income tax return.

47Complicating the question of the income earned by Mr. Tompkins was the myriad of employment benefits he received from his U.S. employer. That is, starting when Mr. Tompkins was on temporary assignment in New York, he received certain employment benefits in addition to his wages, including, in particular, a variety of “moving taxable benefits.” Some of these benefits were paid directly to Mr. Tompkins but many were paid on his behalf directly to third party suppliers or vendors.

48Mr. Lori-Ann March was called as a witness at trial on behalf of the respondent. Ms. March was employed by Repsol Oil & Gas Canada in the position of Senior International Payroll Analyst. In her testimony, Ms. March identified and described the various types of moving benefits that Mr. Tompkins received over the course of his employment with Repsol. Her testimony described some 22 different types of moving benefits that were received by Mr. Tompkins from time to time, including, for example, home leave allowance, relocation allowance, assignment accommodation, property management, departure services, etc.

49In order to determine Mr. Tompkins’s income for the purposes of spousal support, the applicant retained Ms. JoAnne Maleyko, C.P.A., C.A., C.B.V., an expert in business valuations and other financial matters, who delivered an expert report dated November 15, 2019, and an amended report dated February 27, 2020. In short, the purpose of Ms. Maleyko’s report was to determine what Mr. Tompkins’s income would have been under Canadian income tax law for spousal support purposes.

50Neither Ms. Maleyko’s qualifications nor the methodology of her amended report were challenged. Indeed, in his opening statement for the respondent, Mr. Coulter very fairly and candidly acknowledged that with the delivery of Ms. Maleyko’s amended report of February 2020, he had “no issues” with Ms. Maleyko’s report, and “in large part, I acknowledge that the report is correct.”

51In her report, Ms. Maleyko reviewed Mr. Tompkins’s historic income available for support purposes for the years 2012 through 2019. Ms. Maleyko’s report acknowledged that s. 17(1) of the Federal Child Support Guidelines² (“Guidelines”) distinguishes between recurring and non-recurring income, and thus it presented two scenarios in arriving at Mr. Tompkins’s total income available for support. The first scenario treated the allowances that Mr. Tompkins received for moving and housing benefits as non-recurring and, therefore, excluded the amount of those allowances in calculating his total income.

52The second scenario in the report treated the allowances as recurring income and included the amounts in Mr. Tompkins’s income. That said, from the amounts reported as moving taxable benefits as taxable income in the U.S., the report’s second scenario adjusted the total income for only that portion of the item that would be considered taxable in Canada, in accordance with s. 20(1) of the Guidelines. For example, in 2019, Mr. Tompkins’s “moving and housing employment income” was the equivalent in U.S. dollars of $212,262 CDN. However, in her report and testimony, Ms. Maleyko testified that of the $212,262, only $16,030 CDN would be considered a moving expense taxable in Canada. As a result, for the 2019 tax year, the second scenario of Ms. Maleyko’s report attributed only $16,030 of $212,262 to Mr. Tompkins.

53In the circumstances of the instant case, I am satisfied that the fair and appropriate determination of Mr. Tompkins’s income for support purposes should treat the various allowances that Mr. Tompkins received for moving and housing benefits as recurring income and, thus, include those amounts in his total income, as reflected in the second scenario of Ms. Maleyko’s report. In this regard, I note that Mr. Tompkins received moving and housing benefits in four out of the eight years in question. Indeed, Mr. Tompkins acknowledged at trial that only 30 days or so prior to trial, he was reassigned by Repsol yet again and that, as a result, he would likely receive more moving and housing benefits in 2020 – and that would result in five out of the past nine years that he has received such income.

54Expressed in Canadian dollars, and using an annual average exchange rate per the Bank of Canada, the expert evidence of Ms. Maleyko indicates that, if she were asked to complete a Canadian income tax return for Mr. Tompkins for the years in question as if he were a resident of Canada, his income for support purposes would be (under the second scenario):

a. 2012: $344,610 CDN

b. 2013: $346,680

c. 2014: $424,216

d. 2015: $469,659

e. 2016: $296,500

f. 2017: $278,700

g. 2018: $303,300

h. 2019: $338,930

55I accept the expert evidence of Ms. Maleyko on point and find that these figures represent an accurate determination of Mr. Tompkins’s total income available for spousal support purposes for the years in question, expressed in Canadian dollars.

56Although my calculations differ from those of Mr. Howie, as I calculate the eight-year average of those historical income levels to be $350,324 CDN, I take his point that the eight-year average income is more than the income for, say, the last three years.

57I find that Mr. Tompkins is in a position to continue to pay spousal support.

The circumstances of the applicant wife and her income

58Ms. Tompkins has not remarried, and she is not cohabiting with anyone. Ms. Tompkins lives in a modest one-half of a duplex, located at 39B Hall Street, Blenheim, Ontario. She estimates her home to be worth some $200,000. Other than the spousal support she receives from Mr. Tompkins, she has no other source of income. By way of assets, Ms. Tompkins has some $23,000 in mutual funds and $110,000 in an RRSP. She drives a nine-year-old car. By way of debts, Ms. Tompkins owes $165,234 on the mortgage on her home and has a line of credit with a balance of $65,000.

59I agree with the observation of Mr. Howie that Ms. Tompkins’s budget is unremarkable, with the exception of the excessive $450 amount that Ms. Tompkins estimates she spends on gifts, in respect of which she acknowledged that she overindulges her grandchildren.

60I find that Ms. Tompkins continues to be in a position where she needs spousal support.

61The issue of the employability of Ms. Tompkins was placed in issue by the respondent. It is an understatement to say that the employment history of Ms. Tompkins bears little resemblance to that of her former husband. Her employment in the workforce outside of the home might be colloquially described as “spotty.” During the course of the parties’ 30-plus years’ marriage, Ms. Tompkins worked in the following positions:

a. Early in the marriage, Ms. Tompkins was casually employed by a farm and worked on the weekends collecting eggs.

b. For a period of about six or seven years, Ms. Tompkins worked as a school bus driver, working for about an-hour-and-a-half in the morning and for a similar period doing the afternoon run. Mr. Tompkins believed that Ms. Tompkins started driving the school bus just after they were married. He acknowledged that she took time off work when she had the children.

c. Mr. Tompkins recalled that for a period of time, Ms. Tompkins worked part-time as a hairdresser in a nursing home.

d. For a period of what Ms. Tompkins “guessed” to be five or six years, she worked part-time in the Cosmetology department of the Shoppers Drug Mart store in Blenheim. Mr. Tompkins believed she worked closer to full-time hours but acknowledged that it certainly was not 40 hours per week.

e. For a period of perhaps seven or eight years, Ms. Tompkins was employed in a full-time clerical position with Young Drivers of Canada.

62In any event, it is common ground that Ms. Tompkins has been out of the workforce for close to 20 years. Even on Mr. Tompkins’s testimony, he conceded that the last time that Ms. Tompkins worked outside the home was in 2002. I note that was some ten years before the parties separated in 2012. Mr. Tompkins also conceded that, even when Ms. Tompkins was working outside the home, he always made significantly more income than did she.

Issues

63As I have said, there is no issue as between the parties as to Ms. Tompkins’s continuing entitlement to prospective spousal support.

64Rather, the material issues that remain to be determined are as follows:

a. What is the appropriate amount of prospective spousal support payable by Mr. Tompkins for Ms. Tompkins?

b. Should an order for variation of spousal support be made retroactive to the date of separation?

c. Should an order for security for the spousal support obligation be made?

Analysis

What is the appropriate amount of prospective spousal support payable by Mr. Tompkins for Ms. Tompkins?

Framework of the analysis

65Strictly speaking, this is not a variation application because s. 17 of the Divorce Act³ does not apply given that there has been no previous final order of the court made in respect of this matter, and the Separation Agreement was never filed with the court pursuant to s. 35 of the Family Law Act.⁴ Thus, for present purposes, the jurisdiction of the court is founded in s. 15.2 of the Divorce Act, which provides that:

(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 under 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.

66The Spousal Support Advisory Guidelines (“SSAG”) are clear that the “starting point for the determination of income … is the definition of income under the Federal Child Support Guidelines, including the Schedule III adjustments.”⁵

67Subsection 15(1) of the Guidelines provides that a spouse’s annual income is determined in accordance with ss. 16 to 20.

68Section 16 of the Guidelines provides that:

Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

69However, s. 17 of the Guidelines qualifies s. 16, where determining a support payor’s income simply in accordance with the “Line 150” total income would result in an unfair determination. Section 17 provides that:

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

70Subsection 20(1) of the Guidelines applies where, as here, the support payor is a non-resident of Canada. The provision makes it clear that, for the purposes of the Guidelines – and, therefore, for the purposes of the SSAG also – the income of the support payor is to be determined in Canadian dollars. Subsection 20(1) states:

Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse’s annual income is determined as though the spouse were a resident of Canada.

Material change in circumstances

71As I have said, Mr. Tompkins does not contest Ms. Tompkins’s ongoing entitlement to spousal support. Further, Mr. Tompkins does not seek any reduction in the $8,500 CAD monthly amount that he has been consistently paying to Ms. Tompkins pursuant to the Separation Agreement.

72Characterizing the grounds of Ms. Tompkins’s entitlement, I conclude that she has a strong compensatory, non-compensatory, and contractual claim to spousal support. This was a long-term, traditional relationship of more than 33 years. In my view, there is a strong compensatory claim based on Ms. Tompkins’s assumption of primary responsibility for the child-rearing responsibilities, while Mr. Tompkins served as the “primary bread-winner.” As well, the disparity in the parties’ income speaks for itself, and Ms. Tompkins demonstrates a continuing need for spousal support, which is not denied by the respondent.

73In my view, the question of the alleged “misrepresentation” of income by Mr. Tompkins at the time the parties entered into the Separation Agreement is more germane to the consideration of the claim by Ms. Tompkins for retroactive support to the date of separation, which I address below. To my mind, the “misrepresentation” issue holds little relevance for the question of prospective support.

74The parties here entered into the Separation Agreement. As I have reviewed above, s. 13 of the agreement, entitled “Material Change in Circumstances,” contemplated that the quantum of spousal support payable under the Separation Agreement could be varied. Section 13 certainly does not say that a variation is available only where there has been some form of misrepresentation.

75At the time the parties entered into the Separation Agreement, both parties understood that Mr. Tompkins was earning the equivalent of $233,820 CDN. I agree with Mr. Howie that it is beyond question that Mr. Tompkins’s income has increased since then. In the years following the Separation Agreement, Mr. Tompkins earned considerably in excess of $233,820 CDN. Indeed, as I have accepted the expert evidence of Ms. Maleyko as to Mr. Tompkins’s income if he were a resident of Canada, it is clear that, expressed in Canadian dollars, he earned more than $233,820 CDN in each and every year from the date of separation. Put differently, his ability to fund the amount of the $8,500 CAD monthly spousal support payment has improved in the years since he entered into the Separation Agreement.

76I am satisfied that the change in Mr. Tompkins’s post-separation income constitutes a material change in circumstances for the purposes of s. 13(a)(ii) of the Separation Agreement, which, again, provides that the amount of the $8,500 CAD monthly spousal support payment can be varied “if there is a change in circumstances, foreseen or unforeseen or foreseeable or unforeseeable, of the husband or wife such that a court of competent jurisdiction in the same circumstances would vary an order for support made in the same amount and terms under the Divorce Act on the effective date of this Agreement.”

77Certainly, in the context of child support obligations, pursuant to the provisions of s. 14(a) of the Guidelines – that is, any change in the income of the payor spouse – would constitute a material change in circumstances.

78In the same vein, with Mr. Tompkins earning the equivalent of $338,930 CAD in 2019 (representing essentially a 45 per cent increase over his $233,820 annual income, as codified in the Separation Agreement), and/or with him also earning an eight-year average annual income equivalent to $350,324 CAD (representing an increase of more that 49 per cent over his codified $233,820 annual income in the Separation Agreement), it is clear to me that there has been a material change in Mr. Tompkins’s income, justifying a variation of the spousal support payable under the Separation Agreement.

79I am satisfied that Ms. Tompkins ought to share in Mr. Tompkins’s post-separation increase in income. In coming to this conclusion, I have considered, inter alia, the long traditional nature of the parties’ marriage, Ms. Tompkins’s strong compensatory claim based on the assumption of primary responsibility for child-rearing, her strong non-compensatory claim in the context of a 33-year-old relationship, the fact that Mr. Tompkins has remained employed with essentially the same employer since the marriage, and the fact that the Separation Agreement expressly countenances a variation in quantum where there is a material change in circumstances.

80That said, Mr. Coulter forcefully argued on behalf of Mr. Tompkins that there should be no variation of the quantum of spousal support payable under the Separation Agreement because, inter alia, using the same methodology employed by the applicant’s expert, Mr. Tompkins’s USD income in the years 2016 through 2019 – calculated in U.S. dollars – was generally lower than his $233,820 USD income in 2012. In cross-examination, Mr. Coulter asked Ms. Maleyko for Mr. Tompkins’s annual income levels in USD, using the same methodology for income determination as in her report, for the years 2016 to 2019. Ms. Maleyko answered as follows:

a. 2016: $223,807 USD

b. 2017: $214,592 USD

c. 2018: $234,082 USD

d. 2019: $255,430 USD

81Mr. Coulter’s point, of course, was that Mr. Tompkins’s income, at least for the 2016 and 2017 years, was lower than the $233,820 USD codified in the Separation Agreement. In particular, Mr. Coulter argued that, measured in USD, the income of Mr. Tompkins “is not materially different than it was in 2012, nor has it been since 2016.” To that end, based on the figures above, I note that the average annual income, in U.S. dollars, for the four years from 2016 through 2019 is $231,978 USD.

82I appreciate the observations made by Mr. Coulter. That said, in my view, the provisions of s. 20(1) of the Guidelines, as adopted by the SSAG, drive the determination here. The critical question is, pursuant to s. 20(1) of the Guidelines, as adopted by the SSAG, what was the income of the support payor, Mr. Tompkins, determined as though he were a resident of Canada.

83Mr. Coulter went on to argue on behalf of Mr. Tompkins that:

… the exchange rates between the Canadian dollar and the US dollar have been such that, viewed in Canadian funds, the [Mr. Tompkins]’s income has increased substantially over what it was in 2012, when the two currencies were virtually at par with one another. The problem, the unfairness of taking that view exclusively[,] is that it fails to take into account that [Mr. Tompkins] must meet nearly all his own expenses – his own needs – in US dollars, as he resides in the United States, not Canada.

84Respectfully, I am not convinced that Mr. Tompkins has suffered any real unfairness, as submitted by Mr. Coulter. I do not share the respondent’s view that, viewing the variation in Mr. Tompkins’s income “exclusively” in Canadian funds, results in any unfairness to Mr. Tompkins.

85Leaving aside the directive of s. 20(1) of the Guidelines, there is no evidence before me that, on a comparative basis, the living expenses that Mr. Tompkins must meet in U.S. dollars have increased substantially over the years. Certainly, there is no evidence that the rate of any increase in Mr. Tompkins’s living expenses has surpassed the rate of the increase in his income caused by the exchange rate.

86Moreover, the spousal support obligation of Mr. Tompkins under the Separation Agreement was expressed in Canadian dollars. Subsection 8(a) requires him to pay monthly support of $8,500 “in Canadian funds.” His ability to fund that obligation in Canadian dollars has improved over the years because of the exchange rate. In this regard, counsel for Mr. Tompkins has acknowledged that “the changes in the exchange rate have benefitted him and that is in the monthly cost of buying $8,500 in Canadian funds that he needs to buy in order to meet his present spousal support obligation. As he testified, that cost has gone down with the change in the exchange rate, currently by about $2,000 per month from what it was in 2012.”

87Picking up on the latter point, the other perspective I would add is that, when the parties entered into the Separation Agreement in 2012, because the two currencies were then on par, Mr. Tompkins’s spousal support obligation cost him, essentially, $8,500 USD. He agreed to a spousal support obligation that cost him $8,500 USD. But the reality is that, by reason of the subsequent exchange rate differential, he has not been required to incur that same cost for several years since the Separation Agreement was signed. Framed in that way, it is difficult for me to see any unfairness to Mr. Tompkins.

88One might be more sympathetic to an argument of unfairness if the Separation Agreement had expressed Mr. Tompkins’s obligation in terms of a requirement to pay the Canadian equivalent of what costs him $8,500 USD per month. But it did not. It expressed his spousal support obligation in Canadian dollars. As a result, the change in the exchange rate has benefitted him considerably.

89For all of these reasons, I am satisfied that there has been a material change in circumstances in the instant case, justifying a variation of the spousal support obligation of Mr. Tompkins under the Separation Agreement.

Determination of prospective support

90In determining Mr. Tompkins’s income for the purposes of spousal support, I note that the expert evidence of Ms. Maleyko is that in 2019, the last year for which information is available, if Mr. Tompkins was a resident of Canada, his income would have been $338,930 CAD.

91That said, I also note that there has been some fluctuation in the Canadian equivalent of Mr. Tompkins’s income in the last few years. His income in 2018 would have been $303,300 CAD, if he was a resident of Canada. In 2017, it would have been $278,700 CAD. Indeed, in only one year in the years since 2015 has Mr. Tompkins’s income been more than the 2019 amount of $338,930 CAD.

92For these reasons, I am of the view that a determination of income in accordance with s. 16 of the Guidelines would not be the fairest determination of Mr. Tompkins’s income. Accordingly, in accordance with s. 17 of the Guidelines, I have considered his income over the last three years. The average of Mr. Tompkins’s income over the last three years, if he was a resident of Canada, is $306,977 CAD. I conclude that, for the purposes of assessing his spousal support obligation, the most appropriate determination of Mr. Tompkins’s income is $306,977 CAD.

93Turning to Ms. Tompkins’s situation, Mr. Coulter submits on behalf of Mr. Tompkins that it would be reasonable to impute at least some income to Ms. Tompkins on the basis that she is intentionally unemployed. Counsel submits that Ms. Tompkins is able to work and is not disabled. The evidence at trial was that Ms. Tompkins sees only her family doctor on a regular basis. There was no medical evidence of disability from either her family doctor or her internist, Dr. Sinnaeve, whom she sees on an infrequent basis for a thyroid condition. The evidence was that Ms. Tompkins is not under regular but only occasional care by a psychologist. Ms. Tompkins is able to live on her own, drive a car, visit with her grandchildren, and take vacations.

94That said, I agree with para. 31 of the written submissions of Mr. Howie on behalf of Ms. Tompkins, and with the conclusion that Ms. Tompkins is unlikely to succeed in a minimum-wage position in something like the fast-food industry.

95In these circumstances, imputing a minimum-wage income to Ms. Tompkins is an inappropriate, blunt instrument. As well, it is inconsistent with the tenor of the Separation Agreement, in that, as Mr. Howie observed, nowhere in the Separation Agreement was income imputed to Ms. Tompkins. The provision of spousal support was open-ended, and there was no provision for a review of spousal support.

96However, while I would not impute a minimum-wage income, that does not mean that one should completely ignore the objective enshrined in s. 15.2(6)(d) of the Divorce Act, that an order for spousal support should “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”

97In this regard, one certainly cannot say on the evidence here that Ms. Tompkins has made a concerted effort to obtain other employment, even part-time. The evidence was that she made no more than a very few applications for employment in the year before trial. In cross-examination, she agreed with Mr. Coulter’s suggestion that she had made only two job applications in seven years. When counsel suggested that, given her previous years of experience working within the Cosmetology department of Shoppers Drug Mart, she could have applied to local Shoppers Drug Mart stores, that suggestion was met by what I would term disdain. Given the appearance of that attitude or disposition, I can understand why Mr. Coulter makes the submission that Ms. Tompkins “appears to have determined since separation that she will not work but, rather, remain completely dependent on spousal support.”

98On the evidence before me, I am not satisfied that Ms. Tompkins has made reasonable efforts to attempt to achieve self-sufficiency and contribute to her own support.

99These considerations should inform the location or determination of spousal support within the range indicated by the SSAG’s without-child formula. But for the issues surrounding the efforts of Ms. Tompkins to attempt to obtain employment, I would otherwise have regarded the circumstances of the instant case to justify a support amount greater than the mid-level and approaching the high-level within the applicable range under the SSAG. In my view, this is appropriate given the long-term marriage, the strength of the compensatory claim, and the needs of Ms. Tompkins.⁶

100However, where it is difficult to impute income to a recipient, but a court believes the recipient is capable of earning more or ought to make greater effort to obtain employment, the court may choose a location lower in the applicable range.⁷ For example, in Shorey v. Shorey, Rowsell J. of our court “applied the mid-range rather than the high range because the Applicant has not exploited all opportunities to increase her income potential.”⁸

101For these reasons, I would locate the spousal support payable here between the low-level and mid-level within the range. On my DivorceMate calculations, the applicable range runs from $9,953 (low) to $11,192 (mid) to $12,576 (high). In the circumstances, I would set the support payable at $10,500 CAD per month.

102That said, the court would be assisted by confirmation from counsel of the relevant DivorceMate calculations before finalizing the precise amount payable. Counsel are kindly directed to either confirm my calculations or file (ideally, on a joint basis), within 30 days, their own DivorceMate calculations of the range of spousal support payable in accordance with the findings I have made above.

103The order for prospective spousal support shall be effective commencing January 1, 2020. It is, of course, subject to credit for any payments already made by Mr. Tompkins.

Should an order for variation of spousal support be made retroactive to the date of separation?

104As I have said, the instant application was commenced on June 14, 2017. Ms. Tompkins seeks an order for retroactive variation of spousal support dating back to October 1, 2012, the date of separation.

105As reviewed above, following the execution of the Separation Agreement, neither party requested or made further income disclosure until early 2016, at which time it was Mr. Tompkins who first raised the question of variation of his spousal support obligation, consequent upon his receipt of the notice of impending lay-off from his employer. I accept, and find, that Mr. Tompkins gave notice to Ms. Tompkins within a few days of his receipt of the lay-off notice, in January 2016. I also accept that, therefore, January 2016 was the time of effective notice.

106I also accept Mr. Coulter’s submissions that, where there is a separation agreement, the date of retroactivity of variation, if any, should generally be the date of effective notice.

107Since January 2016, the parties have been engaged in discussions concerning Mr. Tompkins’s spousal support obligations, even after the litigation was commenced in June 2017.

108The position of Mr. Tompkins, as reflected in para. 24 of Mr. Coulter’s written submissions, is that “no variation further in the past than 2016 is warranted on the facts, and that from 2016 forward, his income in United States dollars, with which he must meet his own needs, has not materially increased.”

109I have already addressed the latter argument and have rejected it. As I have found, there has been a material change in circumstances, reflected in the increase in Mr. Tompkins’s income in Canadian dollars, calculated as if he was a resident of Canada.

110Again, I have already accepted the expert evidence of Ms. Maleyko concerning the determination of Mr. Tompkins’s income for the years in question. Accordingly, for the 2016 year, Mr. Tompkins’s spousal support obligation should be calculated on the basis of him having earned $296,500 CAD, if he was a resident of Canada, in accordance with the findings I have made above.

111Similarly, the spousal support obligation for 2017, 2018, and 2019, should be calculated on the basis of Mr. Tompkins having earned, respectively, $278,700 CAD, $303,300 CAD, and $338,930 CAD. Again, the total obligation for the years in question is subject to credit for any payments already made by Mr. Tompkins.

112Again, I do not have the relevant DivorceMate calculations before me, nor confirmation of the total amounts paid by Mr. Tompkins for the years in question. Presumably, he paid the total amount of $102,000 CAD in each of those years (12 mos. x $8500 CAD per month), but I would like to have confirmation from the parties before a final order is issued. Accordingly, again, counsel are kindly directed to file (ideally, on a joint basis), within 30 days, a statement of the amount of support owing for the years 2016 through 2019, supported by the relevant DivorceMate calculations in accordance with the findings I have made above.

113The more difficult question is whether Ms. Tompkins is entitled to a retroactive variation beyond January 2016, going back to the date of separation in October 2012.

114I accept the submissions of Mr. Coulter – with which I understood Mr. Howie to take no issue – that the principles concerning retroactive variation as set forth in D.B.S. v. S.R.G.,⁹ which was a child support case, are applicable in the instant case and have been held to apply to spousal support cases as well, “although the factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.”¹⁰

115In its subsequent decision in Kerr v. Baranov, the Supreme Court of Canada held that:

While S. (D.B.) was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.¹¹

116The Supreme Court in Kerr v. Baranov went on to articulate certain reasons supporting the different treatment of claims for retroactive spousal support as opposed to retroactive child support, including the different legal foundation of the claims, as follows:

Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see S. (D.B.), at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, for example, M.L. Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92.¹²

117In accordance with Kerr v. Baranov, in considering Ms. Tompkins’s claim for a retroactive award of spousal support going back to the separation in 2012, I have had regard for the following factors, bearing in mind that none of the factors is decisive:

a. the needs and circumstances of the support recipient;

b. the conduct of the support payor;

c. the reason for the delay in seeking support; and

d. any hardship occasioned by a retroactive award on the support payor.

118Upon consideration of all of the factors, I conclude that, in the circumstances of the instant case, the court should exercise its discretion in favour of not making a retroactive award of spousal support, as claimed. The second and third considerations are paramount in my analysis.

119When considering the conduct of the support payor here, I would note that the instant case does not involve the type of wrongful conduct on the part of the child support payor parent to which the D.B.S. court took exception. That is, the instant case does not involve a “payor parent [hiding his] income increases from the recipient parent in the hopes of avoiding larger child support payments” or a payor parent who “intimidate[s] a recipient parent in order to dissuade … her from bringing an application for child support” or a payor parent who “mislead[s] a recipient parent into believing that his … child support obligations are being met when … he knows that they are not.”¹³

120At trial, much was made of the July 2012 financial statement of Mr. Tompkins that was delivered before the parties entered into the Separation Agreement. Mr. Howie hesitated to use the word “misrepresentation” because, as he said, the word carries such a negative connotation. To be sure, Mr. Howie did not allege that Mr. Tompkins swore a false financial statement or was fraudulent in his disclosure. On the contrary, Mr. Howie acknowledged that Mr. Tompkins swore a financial statement based on his knowledge at the time and without receiving his W2 information slip until several months later. Mr. Howie submitted that the information set out in the July 2012 financial statement simply proved to be inaccurate in the end.

121In my view, this does not constitute wrongful conduct sufficient to ground a retroactive award. In delivering the July 2012 financial statement, Mr. Tompkins disclosed his 2011 total income of $281,484 USD and gave his best estimate of his current income, including his salary of $233,820 USD and the estimated value of the other benefits that he actually received, being employer-paid health insurance, housing, and vehicle allowances, totalling $45,683 USD.

122However, several months later when Mr. Tompkins received his W2 information slip for 2012 – and the evidence of Ms. March was that the W2 is issued by the end of January of the following year – his 2012 W2 showed a total income of $364,643 USD, including $92,755 USD of moving and housing benefits. Some of those amounts were received by third party vendors or suppliers but were taxable benefits in the hands of Mr. Tompkins for U.S. income tax purposes. I agree with the submissions of Mr. Coulter that Mr. Tompkins is not an accountant and would not have known of those amounts as of the date of delivery of his July 2012 financial statement or the date the Separation Agreement was entered into.

123At best, these circumstances might be regarded as an innocent misrepresentation, but they do not amount to the type of wrongful conduct that might justify an award of retroactive spousal support.

124Subsequent to the innocent misrepresentation of the 2012 income, Mr. Tompkins took no steps to conceal his post-separation income. Again, in the years following the execution of the Separation Agreement, neither party requested or made further income disclosure (until January 2016). And as I have reviewed above, significantly, there was no obligation in the Separation Agreement to make annual income disclosure or to advise the other party of any change to one’s income.

125In this regard, I agree completely with the argument of Mr. Coulter, as set out in para. 8 of his written submissions, and I can do no better than simply quoting the submission in its entirety, which I adopt for my own:

Moreover, unlike a child support case, there is no child here, whose interests the payor parent is obligated to look out for. A payor spouse does not have a general obligation at law to notify the recipient spouse of changes in his income. Absent a contractual obligation to do so, and there is no such provision in the Separation Agreement here, it was for either party to ask for updated income disclosure. This did not happen until 2016. Indeed such relevant language as there is in the Agreement here under consideration, suggests that a positive income disclosure obligation was only imposed upon the Respondent if he sought to reduce or avoid indexation in a given year.

126On the latter point, counsel’s submissions refer to the provisions of s. 8(h) of the Separation Agreement, which, as I observed above, is the only instance in the Separation Agreement that provides for any obligation of any party to make updated income disclosure.

127In these circumstances, I cannot find that the conduct of Mr. Tompkins constituted wrongful conduct as might support a retroactive award of spousal support in an appropriate case.

128I would also comment on the third factor, being the reason for the delay in seeking support. To my mind, there was no explanation of the reasons for the delay in asserting the claim for retroactive support offered by Ms. Tompkins. I suppose the best that might be said on behalf of Ms. Tompkins is that she did not assert a claim for increased spousal support based on the subsequent increases in the income of Mr. Tompkins because she was not aware of those increases. While I appreciate the circumstances of Ms. Tompkins, such an explanation rings somewhat hollow given that she never even asked Mr. Tompkins what his post-separation income was.

129Having considered all of the relevant factors and circumstances, I would not exercise my discretion to permit Ms. Tompkins to advance a claim for retroactive spousal support dating back beyond January 2016 to the date of separation.

Should an order for security for the spousal support obligation be made?

130The central dispute between the parties on this issue is whether Mr. Tompkins breached s. 11(i) of the Separation Agreement when he collapsed his Sun Life RRSP in 2014 in order to fund the down payment on the purchase of his Forest Heights home in 2014.

131Subsection 11(i) of the Separation Agreement provides as follows:

The husband agrees to keep the wife named as beneficiary of his 401K and RRSPs for so long as support is payable from the husband to the wife and subject to his right potentially to reduce the security in accordance with paragraph 11(j) below herein and until either party remarries or the wife cohabits in a conjugal relationship for a period of six continuous months.

132Subsection 11(j) of the Separation Agreement provides Mr. Tompkins with the right to seek a reduction in the amount of security required to secure his spousal support obligations. It states that he “may occasionally ask that the policy amount along with the amount of any other assets, including but not limited to his 401K and RRSPs[,] be reduced” and it goes on to list certain factors to be considered in determining an appropriate amount of security.

133The position of Mr. Tompkins is that his obligation to maintain security under s. 11(i) of the Separation Agreement terminated with his marriage to Connie in 2014.

134The party’s respective positions depend on the proper interpretation of s. 11(i) of the Separation Agreement.

135Admittedly, the language of s. 11(i) is not as clear as one might have hoped. But in questions of contractual interpretation, as in statutory interpretation, the relevant question is not whether the language used by the draftsperson could have been clearer. The question is whether it is clear enough.

136In my view, the language is clear enough, and the interpretation offered by Mr. Tompkins is correct.

137The fundamental principle of the construction of contracts is that each provision must be interpreted in the context of the intention of the parties as evident from the contract as a whole.¹⁴ The overriding concern is to determine “the intent of the parties and the scope of their understanding,” which requires the court to “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.”¹⁵

138The difficulty in s. 11(i) arises in its somewhat clumsy reference to s. 11(j). In my view, reading the contract as a whole, and giving the words used their ordinary and grammatical meaning, the intent of the parties was to make it clear that the obligation of Mr. Tompkins under s. 11(i) to maintain security for his spousal support obligation is subject to his right under s. 11(j) to seek a reduction in the amount of the requisite security. The contract must be read as a whole, and the obligation under s. 11(i) must be read in conjunction with the right under s. 11(j). In my view, that is all the parties intended to convey by the ill-chosen reference to s. 11(j) within the text of s. 11(i).

139That same objective might have been more easily attained if, for example, the draftsperson had begun s. 11(i) with language to the effect of: “Subject to the provisions of s. 11(j), the husband agrees to keep the wife named as beneficiary of his 401K and RRRSs for so long as …” and then omit any further reference to s. 11(j) in the balance of the language of s. 11(i). Alternatively, the same objective would be attained if s. 11(i) made no reference to s. 11(j) at all, and then the opening language of s. 11(j) began with: “Notwithstanding any other provision in this agreement, the husband may occasionally ask that …”

140Either such alternative construction would, in my view, preserve the intention of the parties and their apparent desire to make it plain that the obligation under s. 11(i) is subject to the right under s. 11(j). And either such alternative construction would also obviate the need for any clumsily worded reference to s. 11(j) in the body of s. 11(i.)

141In other words, I agree with the argument of Mr. Coulter, as reflected in para. 22 of his written submissions, that the proper interpretation of s. 11(i) is made clear if one simply removes the phrase that refers to s. 11(j). In that event, and using my first alternative construction suggested above to illustrate the point, para. 11(i) would then read:

Subject to the provisions of s. 11(j), the husband agrees to keep the wife named as beneficiary of his 401K and RRSPs for so long as support is payable from the husband to the wife and until either party remarries or the wife cohabits in a conjugal relationship for a period of six continuous months.

142Understood in that way – which is what, I find, the parties intended – it is clear that the remarriage of either party was intended as a terminating event for the requirement of maintaining security for the spousal support obligation. I agree with Mr. Coulter that adding back into s. 11(i) the phrase referring to s. 11(j) should not change that.

143For these reasons, I conclude that Mr. Tompkins did not breach the provisions of s. 11(i) of the Separation Agreement.

144Paragraph 76 of Mr. Howie’s submissions state that DivorceMate calculations indicate “that $740,877 of life insurance is required to cover support, if the Respondent was to work another seven years.” The referenced DivorceMate calculations were not appended to the submissions of the applicant, and it is not clear whether the estimation of the $740,877 amount takes into consideration or is consistent with the findings I have made here. As a result, I will remain seized of the question of the security for spousal support until counsel for the parties have an opportunity to finalize the relevant DivorceMate calculations.

Conclusion

Support Issues

145I have concluded that Ms. Tompkins is entitled to an award of prospective spousal support, commencing January 1, 2020, based on Mr. Tompkins earning an annual income of $306,977 CAD, if he was a resident of Canada, in accordance with the findings I have made above. On my DivorceMate calculations, I would set support at $10,500 CAD per month. However, as directed above, counsel will either confirm my calculations or file their own DivorceMate calculations, and I shall remain seized of any issue regarding the proper calculation of the award under this decision.

146I have concluded that Ms. Tompkins is entitled to spousal support for the years 2016, 2017, 2018, and 2019, based on Mr. Tompkins earning, respectively, $296,500 CAD, $278,700 CAD, $303,300 CAD, and $338,930 CAD, if he was a resident of Canada, in accordance with the findings I have made above. Again, counsel will submit a statement of the amount of support owing for the years 2016 through 2019, supported by the relevant DivorceMate calculations, and I shall remain seized of any issue regarding the proper calculation of the awards under this decision.

147The claim by Ms. Tompkins for an award of retroactive spousal support dating back beyond January 2016 to the date of separation is dismissed.

148Subject to my comments in para. [144] above, the claim by Ms. Tompkins based on the alleged breach by Mr. Tompkins of his obligation to maintain proper security for spousal support is dismissed.

Costs

149Costs should normally follow the event. Subrule 24(1) of the Family Law Rules¹⁶ provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

150My presumptive view is that success here was divided, with Ms. Tompkins being successful on the variation for the years 2016 and forward, and Mr. Tompkins being successful on the dismissal of the claim for a retroactive award back to 2012 (which claim, presumably, had a significant dollar value attached to it) and the dismissal of the claim for breach of s. 11(i) of the Separation Agreement.

151That said, counsel should have an opportunity to address the court on these issues and, in any event, I fully expect counsel will be able to resolve the issue of costs.

152However, if the parties are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the formatting standards of rule 4.01 of the Rules of Civil Procedure¹⁷ and the following schedule:

a. The applicant shall deliver her submissions within thirty (30) days following the release of these reasons;

b. The respondent shall deliver his submissions within twenty (20) days following service of the applicant’s submissions;

c. The applicant shall deliver her reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the respondent’s submissions; and

d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

J. Paul R. Howard

Footnotes

1. 1Further, the parties should know that in the course of my deliberations, I have reviewed the digital audio recording of the entire proceedings at trial.
2. 2Federal Child Support Guidelines, SOR/97-175.
3. 3Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
4. 4Family Law Act, R.S.O. 1990, c. F.3.
5. 5Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008), at p. 31.
6. 6See, for example, McCormack v. Fishbayn, 2020 ONSC 351 (S.C.J.), at para. 61 per C. Horkins J.
7. 7See Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), at p. 46.
8. 8Shorey v. Shorey, [2009] O.J. No. 5136 (S.C.J., F.C.B.), at para. 37 per Rowsell J.
9. 9D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 31 R.F.L. (6th) 1, 270 D.L.R. (4th) 297 [D.B.S.].
10. 10Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, 74 R.F.L. (7th) 272, at para. 93.
11. 11Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, 93 R.F.L. (6th) 1, at para. 207.
12. 12Ibid., at para. 208.
13. 13D.B.S., at para. 106.
14. 14D’Andrade v. Schrage, 2011 ONSC 1174, 99 R.F.L. (6th) 40, at para. 108, citing Turner v. DiDonato, 2009 ONCA 235, 95 O.R. (3d) 147, at para. 29. See also BG Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12, [1993] S.C.J. No. 1.
15. 15Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47. See also MacDougall v. MacDougall, 2005 CanLII 44676 (ON CA), [2005] O.J. No. 5171, 262 D.L.R. (4th) 120 (C.A.), at paras. 20- 22.
16. 16Family Law Rules, O. Reg. 114/99.
17. 17Rules of Civil Procedure, R.R.O. 1990, Reg. 194.