COURT FILE NO.: FC-19-5778-00

DATE: 20210430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marla Seigel-Nudelman

Applicant

– and –

David Nudelman

Respondent

D. Anthony, for the Applicant

G. Ridler, for the Respondent

HEARD: April 7, 2021

R. T. Bennett

REASONS FOR JUDGMENT

[1] The respondent has brought a motion seeking to vary the terms of the Order of Justice Douglas dated July 19, 2019 to provide for the following:

a) varying child support to an order commencing January 1, 2020 and on the 1^st day of each month thereafter for the respondent father to pay to the applicant mother table child support for the child of the marriage namely Zackary Nudelman born January 8, 2006 in the amount of $584 per month based upon the father’s 2020 income of $62,831.

b) varying spousal support commencing January 1, 2020 and payable on the 1^st day of each month thereafter to the applicant mother in the amount of $1,200 per month based upon the father’s 2020 income of $62,831 and based on an assumption that the applicant mother had no income.

Previous Order of Justice Bruhn Dated November 18, 2020

[2] Essentially the same motion was before Justice Bruhn. Her Honour dismissed the respondent’s motion “without prejudice to his right to file another motion after he has provided the disclosure requested in the applicant’s Request for Information dated November 4, 2020 and in particular at paragraphs 5 to 13, 15, 18 and 19.

Disclosure Provided by Respondent Since November 25, 2020

[3] Justice Bruhn’s Order and Ruling on the motion was released November 25, 2020.

[4] On December 8, 2020 the respondent through counsel provided 206 pages of disclosure to the applicant’s counsel. This was in response to the Request for Information that had been served by the applicant on the respondent on November 4, 2020 (two weeks prior to the motion of November 18, 2020).

[5] On February 17, 2021, the respondent’s counsel followed up by correspondence to the applicant’s counsel asking if the disclosure was satisfactory.

[6] On March 8, 2021, the applicant’s counsel responded, not by alleging that the disclosure requested in the Request for Information of November 4, 2020 had not been provided, but by making additional requests for disclosure.

[7] On March 11, 2021, the respondent through counsel provided the additional disclosure that had been requested.

[8] On March 23, 2021, the applicant requested specifics of a number of cheques that had been written by the respondent on one of the bank accounts that had been disclosed. Some 45 minutes after the request was made, particulars of those cheques were provided to the applicant’s counsel.

[9] In her 14C confirmation and in her counsel’s submissions, the applicant took the position that this Court should not proceed until it had received and reviewed all of the disclosure provided by the respondent.

[10] The respondent took the position that due to Court imposed page limits, he was precluded from filing all of the disclosure but had it available if the Court required the same.

[11] At the conclusion of the hearing of the motion, the Court requested that the respondent provide that disclosure to the Court which he has done and which the Court has reviewed to the extent necessary.

[12] The Court finds that this motion was properly before the Court given that the requirements set out by Justice Bruhn in her order, had been satisfied.

[13] This Court finds that the respondent provided the requested disclosure by way of an affidavit approximately two weeks after receiving the Order of Justice Bruhn.

[14] The respondent’s counsel further followed up to ensure that there was no outstanding disclosure that had not been provided. The Court finds that he did so in a timely fashion.

[15] The respondent then provided the additional requested disclosure on two occasions in a very timely fashion.

[16] This Court finds that therefore the motion before me is properly before the Court.

[17] This Court wishes to stress of course that it is not in any way sitting in any form of an appeal of the Order of Justice Bruhn but is, in accordance with her Endorsement hearing the motion after the provision of the disclosure.

Background

[18] A brief background is required in order to provide context to this Endorsement.

[19] The Court was not provided with the parties’ ages. The parties were married to one another August 29, 2004 and separated December 22, 2018 for a cohabitation of approximately 14½ years.

[20] The parties have one child who is 15 years of age. That child is on the autistic spectrum disorder. According to the applicant’s material, the child requires virtually constant supervision. Although she acknowledges that he is highly functioning, she alleges that he has severe behavioural issues. Her evidence is that she is required to attend at his school on a daily basis to assist with his care and therefore the applicant submits that she cannot work outside the home.

[21] Based on the respondent’s material, the issues with that child are represented as being less severe than those represented by the applicant. However, for purposes of this motion, the respondent is not seeking to impute any income to the applicant and is accepting that she has no income due to her childcare responsibilities.

[22] The child has been in a private school, being Everest Academy, for at least the last number of years and is currently apparently in grade nine. The cost of that private schooling is approximately $25,000 per year.

[23] The respondent is a furniture salesman selling office furniture. He has been employed by the same employer for more than 15 years. He receives a draw on commissions of approximately $42,000 per year but his income is solely commission based.

[24] It is not disputed that his income in round numbers was:

(i) 2017 - $200,000

(ii) 2018 - $193,000

(iii) 2019 - $173,000.

[25] It is further not disputed that the respondent is a T4 employee and that the combination of the T4 that he received from his employer as well as the T4 A’s that he received from furniture suppliers whose furnishings he had sold resulted in a collective income for him for 2020 in the amount of $62,831.

[26] The parties, while represented by previous counsel, entered into a temporary without prejudice order on February 13, 2019 which provided that starting January 15, 2019 (less than one month after the date of separation) the respondent would commence paying child and spousal support based on an income of $200,000 (being his then most recently known income of 2017). The global amount of child and spousal support pursuant to that consent was $6,588 per month. That consent provided that the amount would be adjusted once his 2018 income was known.

[27] There was a case conference held before Justice Douglas May 2, 2019. That resulted in the order on consent of July 19, 2019 which the respondent seeks to vary. That order provided for a global amount of support on a monthly basis of $6,260. The amount was slightly less than the February 2019 consent order presumably because the respondent’s 2018 income was slightly less than his 2017 income had been.

[28] The parties also entered into a consent January 10, 2020 which provided that certain enumerated Section 7 expenses would be paid on behalf of the child and that these expenses would be shared on a 60/40 ratio with the respondent paying 60% and the applicant paying 40% (based presumably on the support that she was receiving from the respondent.) That consent was never turned into an order.

[29] The respondent brought the motion that was heard by Justice Bruhn and, as previously indicated, it was dismissed on a without prejudice basis. Costs were ordered against him in the amount of $6,000 which costs he has paid.

[30] In December 2020, having received a notice of pending license suspension from FRO, the respondent brought a motion for a refraining order which resulted in Justice Bird issuing that refraining order on the condition that the respondent bring back the November 18, 2020 motion before the Court (which is now before the Court).

Moving Party’s Position

[31] The respondent seeks to vary the quantum of support payable by him from a global amount of $6,260 per month to a global amount of $1,784 per month, (a reduction by more than two thirds).

[32] His argument essentially is that his 2020 income had been decimated as a result of the effects of the COVID-19 pandemic and the effects of lockdowns and the environment since March 2020, pursuant to which very few offices are operating, (with most of his customers working remotely) and therefore, very few offices are purchasing the office furniture which he sells.

[33] His argument is that his income for 2020 is approximately one third of what it had been for the previous few years and that the $6,260 per month to which he had agreed prior to the pandemic is more than his entire gross income that he was received during 2020.

[34] He seeks an order varying the support retroactively to January 1, 2020 to coincide with the income that he had for that calendar year.

[35] In the alternative, the respondent submits that the Court could impute income to him for 2021 in the amount of $80,000 based on a “hope” that the respondent’s income will be slightly greater in 2021 than it was in 2020.

Responding Party’s Position

[36] The applicant, in response, seeks an order dismissing the respondent’s motion. The following summarizes the arguments made on her behalf seeking to do so:

a) She submits that her need far exceeds $1,784 per month. In support of that argument, she points out that her rent is in excess of $1,500 per month (although her lease is coming to an end because the landlord is selling the unit in which she resides).

b) She submits that the respondent has not demonstrated that he is doing everything possible to maximize his income and that he could be working more diligently to try to sell office furniture or in the alternative he could be taking on a second job such as driving Uber.

c) She submits that the respondent’s disclosure reveals that he consumes craft beer and attends at craft breweries which she submits demonstrates that he has the ability to continue to pay the support pursuant to the Consent Order.

d) She further submits that the respondent resides with his parents and that his parents are of some financial means and have been lending him money and therefore should be in a position to lend him additional amounts of money to allow him to pay his current support obligations.

e) She further submits that the respondent in the past has financed the child’s private school and other expenses through a line of credit and that he could utilize a line of credit in order to pay the current support obligations

[37] The applicant’s proposal in the alternative, is that the Court average the last three years of the respondent’s income and impute to him an income of $145,000 per year and order child support based on that income and spousal support in the mid range based on that income.

The Law

[38] This is a motion by the respondent seeking to vary a temporary order for child and spousal support that was made on consent. Subsequent to the Order which is sought to be varied, there was another order made by Justice Bruhn November 18, 2020 with respect to this same motion.

[39] Therefore, there are a number of issues to be addressed in deciding this motion and a number of aspects of law to be considered.

[40] The Court finds that these may be summarized as follows:

(i) Does this Court have authority to vary a temporary consent order for child and/or spousal support based on a temporary motion being brought?

(ii) Have the conditions set out in Justice Bruhn’s Order with respect to disclosure which were prerequisites to the further consideration of the motion been met?

(iii) If the answers to the previous two questions are yes and this Court therefore has authority to consider the matter, what factors should the Court take into account in determining whether or not there should be a variation in child or spousal support?

(iv) On a temporary basis and if such a variation is to be ordered, what is the appropriate income determination for the respondent and what amount of child and spousal support should be awarded on a further temporary basis?

[41] In her ruling on the November 18, 2020 motion, Justice Bruhn found that she did have jurisdiction to vary a temporary order.

[42] In determining that, she relied on Justice Gauthier’s decision in Innocente v. Innocente 2014 ONSC 7082. In that case it was decided that “although the variation of interim orders should be an infrequent event, it is not beyond the jurisdiction of the Superior Court where the circumstances justify it”. Justice Gauthier noted the circumstances would need to be an exceptional and

a) to prevent undue hardship;

b) where the failure to make the interim order would be incongruous or absurd; or

c) where there is a pressing and immediate urgency.

[43] Justice Bruhn in her November 18 Decision found that this Court does have jurisdiction to vary a support order pursuant to Section 17 of the Divorce Act and, as set out by Justice Bruhn,

(i) Before the Court makes a variation order in respect of a child support order, the Court must satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order where the last variation order made in respect of that Order; and

(ii) Before the court makes a variation order in respect of a spousal support order, the Court shall satisfy itself that a change of the conditions, means, needs or other circumstances of either former spouse has occurred since the making of the Spousal Support Order or the last variation order made in respect of that Order, and in making the Variation Order the Court shall take that change into consideration; and

(iii) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

[44] Justice Bruhn found that she was satisfied that she did have jurisdiction to vary the July 16, 2019 Order if she had found that there had been a material change in the respondent’s ability to pay support and that not varying the support would create undue hardship, would be incongruous or absurd or where there was a pressing and immediate urgency to do so.

[45] She also found that the onus to establish the material change in circumstances was with the respondent.

[46] The applicant does not challenge that this Court has the jurisdiction to vary a previous temporary support order.

[47] The respondent submits that there are other cases that are more relevant to the considerations to be taken by this Court than the Innocente case. The court has considered those cases.

[48] Regardless of which cases are referenced, this Court finds that it indeed does have jurisdiction to make an order varying child and spousal support in appropriate circumstances on a temporary basis.

[49] Typically, Courts would not be varying temporary child and spousal support orders as the intention is that those orders would remain in place until the trial of the case.

[50] However, these are not typical times and particularly for the reasons set out herein, the Court finds that it is entirely appropriate to consider a variation of the child and spousal support temporary order in the circumstances of this case.

[51] It is trite law that a temporary spousal support order is intended to be a short term remedy and to ensure that the recipient spouse has sufficient means to maintain the lifestyle until trial to which they were accustomed during the marriage.

[52] There is no question that the objectives set out in the Divorce Act with respect to spousal support are to

a) recognize any economic disadvantage arising from the marriage or its breakdown;

b) apportion between the spouses any financial consequences arising from the care of children;

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage, and insofar as practicable, to promote the economic self sufficiency of each spouse within a reasonable period of time.

[53] As well, the Divorce Act goes on to provide that the Court should also take into consideration the condition, means, needs and other circumstances of each spouse including:

(i) the length of time the spouses cohabited;

(ii) the functions performed by each spouse during cohabitation; and

(iii) any order, agreement or arrangement relating to the support of either spouse.

[54] The Divorce Act has recently been amended with those amendments coming into force March 1, 2021. However, insofar as the provisions relating to spousal support are concerned, the provisions of the amended legislation are for all intents and purposes similar to the previous legislation.

[55] Therefore, the case law which has evolved up until February 28, 2021 is still relevant.

[56] In the case of Roebles v. Kuhn 2009 BCSC 1163, there was an enumeration of a list of principles that govern an interim spousal support motion namely:

a) for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;

b) an interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to the separation;

c) the Court should not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The Court achieves rough justice at best.

d) interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

e) interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

f) where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[57] In addition, in the case of Samis v Samis 2011 ONCJ 273, Justice Sherr added the following considerations to be taken into account namely:

(i) interim support was to provide an income for the dependent spouse until trial

(ii) the court need not conduct a complete inquiry into all aspects to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

(iii) Interim support is a holding order to maintain the accustomed lifestyle if possible

(iv) interim support is to be based on the parties means and needs. The merits of the case in its entirety must await a final hearing

Analysis

[58] The applicant did not argue that the Court had no jurisdiction to hear this motion.

[59] The Court finds that there is no question that it does have jurisdiction to hear this motion based on the fact that the Order of Justice Bruhn was made without prejudice to the respondent bringing this motion back before the Court and in fact, her Honour’s Order contemplated that this would in fact take place.

[60] Further, Justice Bird’s Order required the respondent to bring this motion back before the Court.

[61] The Court is satisfied that the respondent complied with the conditions set out by Justice Bruhn to allow the motion to be brought back. The respondent provided the required disclosure within two weeks of receiving Her Honour’s Order. The respondent further followed up with the applicant in order to ensure that there was no argument that he had not complied with the disclosure required of him.

[62] In addition, even though the applicant made additional disclosure requests, the respondent did not argue that the requests were unreasonable or that he was not required to answer them but instead provided all the disclosure requested.

[63] Furthermore, the respondent provided details of certain cheques which details had been requested by the applicant. The respondent provided that clarification within 45 minutes of the request being made.

[64] This Court finds that the respondent did everything required of him to comply with the disclosure that needed to be made.

[65] The Court finds that both the applicant and the respondent (and by extrapolation the child) are financial victims of the COVID-19 pandemic and the economic consequences thereof.

[66] The Applicant, the Respondent and the child are all relying on the respondent to earn an income in order to support the three of them.

[67] The Respondent had for a few years prior to the separation, been earning an income such that he was able to support himself, his estranged wife and his child in a manner to which they had been accustomed during the latter part of cohabitation.

[68] There is no evidence to indicate that had COVID-19 and the lockdowns not happened, that he would not have been able to continue to earn income in the range that he previously earned and continued to support them.

[69] The respondent submits that his income was decimated in a direct co-relation to the COVID-19 pandemic and the lockdowns imposed by the provincial government and by the change in culture such that many offices were no longer functioning as they had in the past, but employees who previously worked in those offices were now working from home.

[70] When one sees a pattern of income and then a decimation of that income to one third of what it had been in previous years which corresponds directly in timing with the pandemic, the Court has no difficulty drawing a conclusion that there is a direct co-relation between the decimation of the respondent’s income and the pandemic and lockdowns.

[71] The Court has empathy for the respondent, the applicant and their child.

[72] They are clearly victims of circumstances which this Court finds are beyond the control of the respondent.

[73] The respondent has had the same job for 15 years. The Court finds that it is not unreasonable for him to at least, for the foreseeable future, continue to work in his field in which he has been able to earn a very good income for a number of years.

[74] The Court does not find it reasonable to expect that he would simply abandon his career at this point in time and choose another career in order to try to make up the lost income.

[75] The Court can take judicial notice of the fact that the day of the motion was the same day that another provincewide lockdown for at least the next month came into effect, which lockdown has now been recently extended further.

[76] The court has no evidence before it that the respondent has any marketable skill sets that he could utilize in this economic environment to allow him to earn an income even remotely close to that which he had been earning prior to the pandemic.

[77] The Court has taken into account the submissions made on behalf of the respondent that the applicant has (both prior to and during the pandemic spent monies on craft beer on a monthly basis).

[78] The Court finds that the respondent’s spending habits are far less relevant since he is a T4 employee, than they would be if he was a self-employed individual. The Court says this because typically with self-employed individuals, the party receiving support argues that their spending patterns should be taken into account in order to impute income to them. This Court performs that type of analysis on a regular basis.

[79] However, in a situation of a T4 employee, the Court finds that the payor’s spending habits are far less relevant. They may have some relevance to the range of spousal support which should be paid based on a needs and ability analysis.

[80] The Court accepts that for purposes of temporary spousal support motions, the needs and ability to pay analysis is very relevant.

[81] In response to questions from the Court, the Court learned that the respondent’s income is based on sales that he made two months previously. Therefore, his income in June is based on the sales that he made in April with the necessary adjustment to the draw to which he is entitled.

[82] The pandemic and the first provincial lockdown occurred in mid-March 2020.

[83] Based on the two month delay in affecting the respondent’s income, this would have first affected him partially in May 2020 and for thefirst full month in or about June 2020.

[84] The Court understands the respondent’s argument that any change should be retroactive to January 2020 but finds that for the above-noted reasons, the variation in support should occur retroactively to June 2020.

Court’s Response to Extreme Circumstances and Unchartered Territory

[85] The Court is required, pursuant to Rule 2 of the Family Law Rules to act “justly”.

[86] In attempting to act justly, the Court takes into account the following factors:

a) The applicant has been used to receiving support in the range of $6,000 per month (even though based on the chart provided by her, the actual support has been significantly reduced in the last few months to less than $2,000 per month recently.

b) Because of the pandemic and the current lockdown, this Court (nor anyone else for that matter) can realistically predict when lockdowns and closures will terminate and when the economy and society will return to a “new normal”.

c) The volume of cases before the Newmarket Court and the exacerbation created by the pandemic results in a situation pursuant to which it takes a number of months for a party to schedule a motion to return before the Court.

d) The changes brought about by the pandemic require courts to become creative in the manner in which to deal with matters in order to attempt to bring about a “just” result.

[87] Typically, in a variation motion (even in a temporary without prejudice situation) the Court would make a determination and make an order which would continue until a further event such as a further motion or a trial.

[88] The reality of the situation is that a further motion would likely be six months from now and a trial would likely not occur for another 12 to 24 months.

[89] The Court finds that it would not be just to put in place an order at this time which could not be varied for those periods of time when there are so many unknown factors which could take place in the meantime.

[90] The Court found that it would not be reasonable to expect the respondent to change careers at this point in time. However, if the current social and economic situation does not change in the foreseeable future, it may be necessary for the respondent to do so.

[91] The applicant in her response to this motion makes arguments that are typical in situations where a respondent payor has suffered a reduction in his income.

[92] She suggested that the respondent should take on a second job such as driving Uber. In a normal economic climate, that may be a reasonable suggestion however, this is no ordinary economic climate.

[93] It is not for this Court to opine on the wisdom of government’s reaction to unprecedented circumstances. However, the provincial government has, for better or for worse, implemented provincewide lockdowns and Stay-At-Home Orders. The result of such actions is that the public is discouraged and in fact prohibited from leaving their homes except in certain very limited circumstances. Therefore, the Court has no difficulty taking judicial notice of the fact that there is no market currently for Uber drivers even if the respondent tried to earn income in that field.

[94] The applicant also suggested that the Court should consider averaging the respondent’s last three years’ incomes in order to come up with a Spousal and Child Support Order on a go forward basis.

[95] In some circumstances, such averaging is very appropriate.

[96] However, the Court finds that those circumstances do not exist in this present case.

[97] The respondent had a history in the recent past of earning in round numbers $200,000 per annum.

[98] Last year he earned approximately one third of that amount.

[99] Given the current provincial, federal and in fact global environment, there is no current realistic expectation that in the immediate future the respondent will be able to earn even remotely close to the average of his last three years’ incomes.

[100] This Court finds it would not be just to impose support obligations based on that averaging.

[101] On the other hand, in order to act “justly”, the Court must take into account the circumstances of the applicant and the child of marriage. They had, until recently, been able to live a lifestyle based on a receipt of support from the respondent in the range of $6,000 per month. As is typical of human nature, their lifestyle was based on an expectation that they would continue to receive an income within that range.

[102] Therefore, the Court finds that it would not be “just” for the Court to simply take the respondent’s 2020 income and make a temporary order, which the applicant would have no realistic way of seeking to vary either by way of a further motion or by way of trial for 6 to 24 months down the road.

[103] The Court therefore finds that in order for it to act “justly” in this uncertain environment, and given the difficulty for the parties to get back to court, it is necessary for the Court to be creative in coming up with a methodology which the Court finds is “just” for both parties.

[104] Based on the circumstances that currently exist, the Court is operating under an assumption that the respondent will continue in his current career and that at some point in time, a “new norm” will exist such that he will be in a position to continue to sell office furniture and regain an income that is far in excess of the income that he had in 2020 albeit probably not to the levels that he had in 2017.

[105] For all of the above reasons, the Court finds that commencing in June 2020, the respondent shall pay child support in the amount of $584 per month based on his 2020 income of $62,831 and that he shall pay spousal support in the amount of $2,000 per month based on the aforesaid mentioned income.

[106] The Court has found that the spousal support should be payable at an amount well in excess of the mid range of spousal support provided for by the SSAG’s for that income level.

[107] The Court does so, not because it finds that the applicant would be entitled to ongoing or permanent spousal support at a level in excess of the mid range, but because the Court takes into account her needs and the respondent’s ability to pay.

[108] Even during the pandemic, the respondent has demonstrated that he is able to meet discretionary spending which includes his propensity for craft beer and travelling to craft breweries. While that may be something that the respondent enjoys, the reality is that he should not be doing so in lieu of paying appropriate support to his estranged wife and child.

[109] The future is largely unknown to all of us and for that reason, the Court has crafted a somewhat creative temporary without prejudice order to allow for an adjustment of child and spousal support based on the actual income that the respondent will earn.

[110] The respondent shall provide at four month intervals, disclosure to the applicant his monthly income. This shall include a statement from his employer setting out the income that he has received during the previous four-month period.

[111] The first such disclosure shall be made by May 15, 2021 and it shall provide disclosure of the income earned by him year to date for the months of January through April 2021.

[112] The next disclosure shall be provided by him by September 15, 2021 and shall include the income earned by him for the months of May through August 2021. This pattern shall repeat on a four month basis until an order or agreement varying this.

[113] Based on that disclosure, with the income to be annualized, the respondent shall pay child support in accordance with the Child Support Guidelines.

[114] The respondent shall also pay spousal support being the amount which is the greater of $2,000 per month and the mid-range of spousal support provided for by the SSAG based on his annualized income over the last four months.

[115] By way of example, if the respondent earned $25,000 during the months of May through August 2021, then his annualized income would be $75,000 and he would pay accordingly for the next four months.

[116] If the respondent earned $40,000 during the months of September through to December 2021, then his annualized income would be $120,000 and he would pay accordingly for the next four months.

[117] The Court well recognizes that this is a novel approach. However, we are as a society in uncharted territory and therefore this Court finds that a novel approach is necessary in order to act in a just manner.

[118] The Court well recognizes that this novel order may create some issues for the Family Responsibility Office and would expect cooperation by the respondent and the applicant through their respective counsel to cooperate in providing the necessary information to the Family Responsibility Office and paying the appropriate amount to the Family Responsibility Office on a four months basis.

[119] The Court is well aware that the parties have an upcoming settlement conference scheduled.

[120] The Court has not addressed the issue of Section 7 expenses. Neither party argued that issue before the Court as there was insufficient time to do so given the parameters of a one hour motion (which effectively became a half day motion taking into account time afforded to the parties to attempt to negotiate (unsuccessfully) a resolution.

[121] To state the obvious however, the child is in a private school at a cost of $25,000 per annum. That was based on a consent entered into at a time when the respondent was earning in the range of $200,000 per annum. Although it is not before the Court, it seems obvious to this Court that unless extended family members are in a position to and are willing to subsidize the parties and the child to continue to do so, that expenditure is simply not within the realistic possibility when the respondent has income in the range that he had in 2020.

[122] However, the Court will leave that issue for the parties and the capable Case Management Judge to address.

[123] Support Deduction Order to issue.

[124] The Court would hope that given the current economic circumstances of both parties, counsel would be able to work out an agreement with respect to costs of this motion. Although the Court is not ordering the same, it may be reasonable to simply “park” that issue and to agree that costs of this motion would be determined at a later time.

[125] However, should the parties be unable to agree on the issue of costs, cost submissions may be submitted to this Court. Those submissions shall not exceed three pages in length not including offers to settle and bills of costs. Any such submissions shall be served and filed by the respondent on or before May 31, 2021 with responding submissions from the applicant on or before June 15, 2021 and any reply submissions by the respondent on or before June 22, 2021.

[126] If no submissions are received by this Court by May 31, 2021, then the Court will presume that the parties have agreed that costs shall be reserved and costs are thereby reserved to the trial judge.

[127] In light of all of the above there will be in order to go varying the order of Justice Douglas dated July 19, 2019, as follows

(i) Subject to the other provisions of this order, commencing June 1, 2020 and on the 1^st day of each month thereafter, and based on the respondent’s disclosed income of $62,831 for the year 2020, he shall pay child support in the amount of $584 per month for the child the marriage Zackary Nudelman born January 8, 2006;

(ii) Subject to the other provisions of this order, commencing June 1, 2020 and on the 1^st day of each month thereafter, and based on the respondent’s disclosed income of $62,831 for the year 2020, the respondent shall pay spousal support to the applicant in the amount of $2000 per month;

(iii) The respondent shall provide income disclosure to the applicant at four month intervals commencing May 15, 2021 for the previous four months. That income disclosure shall include a minimum of statements received from his employer setting out the commissions earned by the respondent for the previous four months. His disclosure and the calculation of his income shall include income received by him from all sources including any government subsidies received by him.

(iv) The amount of child support payable pursuant to this order shall be varied each four months based on the annualized income for the previous four months. (By way of example, if his income for the previous four months were $15,707, then his annualized income would be $62,828 and there would be no adjustment of child support for the next four months. However, if his income for the previous four months was $20,000, then his annualized income would be $80,000 and he would pay child support for the next four months based on that annualized income.

(v) The amount of spousal support payable pursuant to this Order shall be varied each four months based on the annualized income of the respondent for the previous four months. For purposes of calculation of SSAG, it is assumed that until further order of this Court, the applicant has zero income. The amount of spousal support payable by the respondent to the applicant shall be the greater of $2,000 per month or the amount provided for by the SSAG mid range calculation based on the annualized income for the previous 4 months taking into account the child support payable by the respondent to the applicant.

(vi) The 1^st such adjustment of child support and spousal support shall occur October 1, 2021 based on the respondent’s disclosed income for the period May 1, 2021 to and including August 31, 2021.That adjusted amount shall be payable for the months of October 1,2021 to and including January 1, 2022. The next adjustment shall occur February 1 2022 based on the respondent’s disclosed income from September 1, 2021 to and including December 31, 2021. This pattern shall continue each four months until further order of the Court.

(vii) The parties through counsel shall cooperate in advising the Family Responsibility Office of the adjustment to the support as provided for by this Order.

(viii) In order to expedite matters and the issuance of presumably consent orders dealing with these adjustments, a 14B may be submitted to this Court’s attention each four month interval. In addition to filing that 14B in the normal course, a copy of the 14B shall be provided to this Court’s Judicial Assistant to ensure that it promptly comes to this Court’s attention.

(ix) A support deduction order shall issue.

(x) Should the parties be unable to agree on costs, the respondent shall serve and file cost submissions not exceeding three pages in length by May 14, 2021; the applicant’s responding submissions by May 21, 2021; and the respondent’s reply submissions if any by May 28, 2021. The page limits do not include bills of costs or offers to settle.

(xi) Should this Court not receive any cost submissions by May 31, 2021, this Court will assume that in accordance with the recommendations set out in this Endorsement, the parties have either agreed to have costs reserved to a future date or they have agreed on the quantum of costs payable with respect to this motion and there shall be no order as to costs except as agreed by the parties. Any such agreement may be submitted to this Court by 14B if counsel requires an order with respect to the same.

Justice R.T. Bennett

Released: April 30, 2021