COURT FILE NO.: FS-15-452

DATE: 2021 11 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Cynthia Marie Ghent

Applicant

– and –

Norman Harry Busse

Respondent

Kamaljit Saini, Counsel for the Applicant

James Peluch and Jessica Chyc, Counsel for the Respondent

HEARD: March 1-4, 8-9, & 12, 2021 by Zoom Video Conference

Justice G.D. Lemon

REASONS FOR JUDGMENT – CORRIGENDUM

Correction Notice:

The Original judgment was released on May 3, 2021. Supplemental Decisions were released on June 25, 2021 and October 28, 2021. On November 24, 2021 the text of the original judgment was corrected to reflect the amendments noted within these decisions as follows:

• Paragraph 4 the amounts have been changed from $1,800 to $2,300 per month.

• Paragraph 211 the amounts in S.S.A.G have been changed as follows:

From:

YEAR	LINE 150 EARNINGS Mr. Busse	LINE 150 EARNINGS Ms. Ghent	S.S.A.G.
2016	$95,585	$17,900.81	$587 - 1,226
2017	$96,872	$17,176	$636 - 1,279
2018	$95,842	$18,540	$1,645 - 2,188
2019	$96,286	$18,607.36	$1,657 - $2,200
2020	$96,286	$16,898	$1,704 - $2,251

To:

YEAR	LINE 150 EARNINGS Mr. Busse	LINE 150 EARNINGS Ms. Ghent	S.S.A.G.
2016	$95,585	$17,900	$1,453 - $1,928
2017	$96,872	$17,176	$1,589 - $2,074
2018	$95,842	$18,540	$1,681 - $2,222
2019	$96,286	$18,607	$1,685 - $2,229
2020 (to June)	$96,286	$16,898	$1,724 - $2,270
2020 (after July 1)	$96,286	$16,898	$2,282 - $3,043

• Paragraph 213, the range amounts have been changed from $2,280 - $3,040 to $2,282 - $3,043.

The Issues

[1] In order to resolve this family law dispute, I need to determine each party’s ability to earn an income. That will allow me to consider whether Ms. Ghent’s spousal support should be terminated or otherwise varied. I then need to determine Mr. Busse’s obligation to pay for his son’s support and university education. Finally, I must consider the terms of the parties’ 2011 separation agreement and whether Ms. Ghent has a claim against Mr. Busse’s pension. I shall do so in that order.

[2] Specifically, Ms. Ghent seeks orders that:

a) Mr. Busse’s annual income is imputed to be $99,000 per year;

b) Mr. Busse shall pay ongoing spousal support of no less than $2,500 per month;

c) Mr. Busse should have paid monthly child support for their son until June 30, 2020;

d) Mr. Busse owes her arrears of section 7 expenses fixed in the amount of $20,000;

e) Mr. Busse owes an equalization payment in the amount of $51,093 for her share of his undivided pension;

f) In the alternative to that equalization payment, Mr. Busse shall pay her a lump sum spousal support payment in the amount of $51,093 (without any tax adjustment); and

g) Having changed the equalization payment above, she seeks a declaration that all other terms of their separation agreement shall continue in full force and effect.

[3] In return, Mr. Busse seeks an order:

a) terminating or reducing his obligation to pay ongoing spousal support effective July 1, 2019;

b) terminating or reducing his obligation to pay ongoing child support as of April 30, 2020;

c) dismissing Ms. Ghent’s claim for retroactive child and spousal support adjustments;

d) dismissing the claim for any further section 7 expense contributions payable by him on behalf of their son;

e) declaring that any overpayments of child or spousal support be repaid to him; and

f) dismissing Ms. Ghent’s claim for an additional equalization payment or pension division payable from Mr. Busse.

[4] For the following reasons, I find that Ms. Ghent should be found to have the annual income based on her employment earnings set out in her annual income tax returns and that Mr. Busse is imputed to have an annual income as set out in his income tax returns for the relevant years except for 2020, for which he shall have an imputed income of $96,286. Mr. Busse’s spousal support shall continue at $2,300 per month from July 1, 2020.

[5] I find that Mr. Busse has properly paid his child support to date and his child support obligation came to an end June 30, 2020. Mr. Busse shall have credit for any amounts paid since July 1, 2020.

[6] I will require further submissions with respect to any spousal support arrears that may be owing.

[7] Finally, I find that Ms. Ghent should be held to her agreement. Mr. Busse does not owe her any further amounts for an equalization payment.

Background

[8] The parties filed an agreed statement of facts. By that document, the history of the parties is as follows.

[9] Ms. Ghent is 60 years of age and Mr. Busse is 56 years of age.

[10] The couple were married on December 27, 1986 and separated on or about August 26, 2009.

[11] They have two children, C., who is now 34, and H., who is now 25 (d.o.b. January 24, 1996). The child support issues relate only to H.

[12] The parties are divorced. Ms. Ghent is single while Mr. Busse is remarried to Claudette Costa-Busse.

Determining Imputed Income Legal Authorities

[13] Both parties submit that an income should be imputed to the other. These principles apply to both cases.

[14] In Zigiris v. Foustanellas, 2016 ONSC 7528, 92 R.F.L. (7th) 19, at paras. 33-38, Shelston J. said:

[33] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed.

[34] When considering the spouse’s capacity to earn income, the court should consider, among others, the following principles:

(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children”;

(b) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities.

[35] The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, the court held that:

Once intentional underemployment is established, the onus shifts to how one of the exceptions of reasonableness.

[36] Justice Pazaratz notes in Jackson v. Mayerle:

Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.

[37] Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in the Court of Appeal case of D.D. v. H.D.

[38] The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain.

[Citations omitted.]

[15] To paraphrase McLachlin J., as she then was, in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, at pp. 881-82, arguments that an ex-spouse should be doing more for themselves must be considered in light of their background and abilities, physical and psychological. It may be unreasonable to expect a middle-aged person who has devoted most of their life to domestic concerns within the marriage to compete for scarce jobs with youthful college graduates.... It is not enough to say in the abstract that the ex-spouse should have done more or be doing more, and argue from this that it is their inaction rather than the breakup of the marriage which is the cause of his economic hardship. One must look at the actual social and personal reality of the situation in which the spouse finds themselves and judge the matter fairly from that perspective.

What is Ms. Ghent’s Income?

[16] Mr. Busse submits that I should impute an income to Ms. Ghent of $30,000 per year in accordance with section 19 of the Child Support Guidelines. That order would be based on at least full-time employment income (40 hours per week x $14.25 per hour) together with any supplementary cash income.

Statement of Facts

[17] It is agreed that Ms. Ghent’s employment income (not including spousal support) as set out in her income tax returns:

i. For the year 2011, $4,707.77 was from Upper Grand District School Board and $187.50 was from McCann Professional Dog Trainers;

ii. For the year 2012, $4,917 from Upper Grand District School Board;

iii. For the year 2013, $4,898 from Upper Grand District School Board; and

iv. For the year 2014, $4,094.29 from Upper Grand District School Board and $11,002.45 from Tim Hortons.

[18] Income tax returns that were filed as exhibits show that her income:

i. For the year 2015, $16,573.41 from Tim Hortons and $2442 from Upper Grand District School Board;

ii. For the year 2016, $16,447.53 from Tim Hortons and $1453.28 from Upper Grand District School Board;

iii. For the year 2017, $17,176.17 from Tim Hortons;

iv. For the year 2018, $18,540,16 from Tim Hortons;

v. For the year 2019, $18,607.36 from Tim Hortons; and

vi. For the year 2020, $16,989.61 from Tim Hortons.

Evidence of Ms. Ghent

[19] When the parties married, they were living in an apartment in Guelph and both were going to the University of Guelph. Both obtained degrees in fine arts. Mr. Busse also took a second group of courses so that he could teach a different subject when he graduated to become a teacher. Neither of them was working at the time. They survived on Ms. Ghent’s OSAP and money from Mr. Busse’s parents.

[20] When their daughter was just under a year old, the couple moved to Mr. Busse’s parents’ residence in Etobicoke. At the time, Mr. Busse had a summer job at Ontario Place before he went to teacher’s college in Kingston. That fall, he went to Kingston to teacher’s college while Ms. Ghent stayed with his grandparents in the High Park area in Toronto.

[21] When Mr. Busse graduated, he obtained employment at a school in Milton while Ms. Ghent continued living in Toronto. They lived near High Park, and she got a full-time job in a pet store on Bloor Street. She was successful at that job and was promoted. She had also started to train dogs through that employment.

[22] Ms. Ghent worked two years at that pet shop. She worked full-time and sometimes more than 40 hours per week. She earned minimum wage, but it was increased when she increased her responsibilities. She took the job because of her loan payments from school.

[23] For a time, Mr. Busse’s mother cared for their daughter, but Ms. Ghent was not happy with the amount of time she was able to spend with her child and she did not feel safe in Toronto.

[24] The family then moved back to Guelph. Their daughter was not yet in school and, for extra money, Ms. Ghent brought in a child for daycare. She then obtained employment at a food kiosk at the University of Guelph. There, she worked from 4 p.m. to 10 p.m., two to three days per week. Mr. Busse continued with his teaching job in Milton. Ms. Ghent’s mother babysat for a short time until he returned from work or a friend helped out.

[25] When Ms. Ghent took the family dog to a local obedience school in Guelph, she was soon able to obtain employment training dogs once per week at $10 per class. This employment started in Rockton and then moved near Flamborough in the mid-1990s.

[26] The family stayed in Guelph for two or three years and then moved to Morriston, perhaps in 1993. Ms. Ghent continued to work at the university, dog training, maintaining the home property, and caring for their daughter. Mr. Busse was still teaching school in Milton.

[27] When they moved to Morriston, there were tenants on the top floor and, for a year, Ms. Ghent took care of the tenants until they left. At that point, she was working 15 hours a week at the university and three to six hours a week at dog training. Mr. Busse was home when she was away working. She worked for the Guelph food services for seven years at minimum wage. She received a raise when she became a short order cook.

[28] H. was born in 1996 and Ms. Ghent had concerns of his safety as the Morriston home was on a busy road. After their son was born, she found that her fine arts degree did not help her with employment. She became more interested with her work with animals.

[29] After five years at Morriston, they moved to Bellwood. The Bellwood property was a seven-acre rural property with four bedrooms. When they moved there, they took their five dogs and three sheep with them.

[30] Ms. Ghent did not apply for work when she first moved to Bellwood because of grief from the recent death of her brother and to be home with her son. The family could not afford daycare for a minimum wage job and she did not have a vehicle.

[31] While in Bellwood, Ms. Ghent applied to the Pet Value store in Fergus but did not get the job. There were no other pet stores in Guelph, Kitchener, or Waterloo. She was unable to find employment near Bellwood and, therefore, stayed home to take care of the home, the children, and the animals. To her, Mr. Busse appeared to be “okay” with this plan or, at least, did not object.

[32] As of 1999, Ms. Ghent was home full-time while Mr. Busse worked in Milton, but she did some obedience teaching at the Flamborough dog school on Saturday mornings and two evenings per week when Mr. Busse was at home.

[33] She earned some other money by illustrating books but that earned her only approximately $50 per illustration. She illustrated her sister’s book and earned approximately $250-$300. She also illustrated for another publishing house, but they then turned to using in-house illustrators. She and Mr. Busse set up a website to pursue illustration work but that generated little work.

[34] They brought the sheep to Bellwood to assist with training dogs to herd sheep. She also wanted to breed the sheep to sell the lambs to pay for some of the costs of the dogs. The sheep business also allowed them to spend time with the children and the children enjoyed the work. Mr. Busse appeared to be okay with this venture so long as it was not a financial burden to the rest of the household.

[35] They then purchased horses because their daughter and son spent time riding and competing with both the dogs and the horses. It was a family activity. Sometimes both parents were with the children and sometimes only one. If a horse needed to be trailered, Mr. Busse was always involved.

[36] Ms. Ghent registered the sheep with the Canadian Livestock Corporation. She was also involved with the Australian Shepherd Association. She went to herding trials and hosted a trial at the Bellwood property in August 2009, shortly before the separation.

[37] The sale prices of the sheep depended on the market and the time of year. Her sheep are a rare breed of “Jacob” sheep. They are a heritage breed and not for commercial use. She could sell the heritage sheep to like-minded purchasers for $200-$300 per sheep, but she was paid less if the animal was sold for consumption. She also charged less if individuals purchased more than two sheep.

[38] Ms. Ghent became a dog herding judge in 2009, but she was only paid her expenses when she judged.

[39] She also bred approximately 12 litters of Australian shepherd puppies over 25 years. Over that time, she earned between $350 and $800 per puppy. However, out of that income came the costs of stud fees, registration, training and a variety of testing. Her profits depended on the size of the litter but if there were only two puppies, there was no profit.

[40] She last sold an Australian shepherd 12 ½ years ago. She is not sure what they sell for now but agrees that the sale price may be more than $1,500.

[41] Essentially, the sheep and the dogs were a “passion rather than a business.” It was part of the rural life for her and she thought that the children benefited from the discipline and education. Mr. Busse made kennels and the children helped with training. There was also some income for the household. That income was spent on expenses for the dogs or purchasing other items for the family.

[42] She was not aware of any financial problems for the family caused by expenses for the animals. She did agree that if the couple argued about anything, Mr. Busse raised the cost of the animals, but she did not take him seriously about the animal expenses. She did agree that he complained about the animal expenses.

[43] Ms. Ghent initially said that she was not aware of running close to the line financially before separation. She said that she had no idea of any debt problems. She was unaware of any chronic financial problems. She denied Mr. Busse took extra employment because of a serious financial problem. She denied that he took extra employment because she was spending too much money.

[44] However, while she could not remember, it is possible that there was a debt reconciliation in 2004. She agreed that she was surprised in 2008 when they could not afford to pay a Sears bill.

[45] She is not sure, but Mr. Busse might have taught night school because of family debts. She understood that he worked summers because he was excited to get the job. She agreed that he took a milking job after the Sears bill problem. She thought that the extra employment was to pay for extras and to help with the cash flow but not because of any debts. She did agree that financial stress was the problem in the relationship for him.

[46] In 2008, she obtained a job as a school supervisor in Fergus. She worked approximately two hours per day and earned just above minimum wage. She earned $500 per month when school was in and if she worked five days per week.

[47] When H. started school, she and Mr. Busse may have spoken about a family financial plan, but she has no recollection of the details. Mr. Busse did not suggest that she should find other work. She elected to stay home, and they agreed to that.

[48] She continued to take care of the home, the children, the meals, the gardens, and was caregiver to the sheep, horses, and dogs. At the time of separation, the family had 30 or 40 sheep, three horses, and eight dogs.

[49] She had no other employment prior to separation.

[50] When the parties separated, she remained in the matrimonial home with her son in Bellwood. Their daughter was in college in Guelph and was 22 at the time. H. was 13 and in grade 7.

[51] After separation, Ms. Ghent continued with the school supervisor job.

[52] Ms. Ghent testified with respect to her past and present health.

[53] While they were together, she hurt her left knee when she fell from a hay bale. She had physio then and still has problems with her knee when she has overworked. She takes medications, ice, or heat to deal with that.

[54] When they agreed to sell the Bellwood home in 2011, they also agreed that it needed repairs. They decided to re-shingle the roof themselves. After days of shingling, she had pain in her back. That developed into pain that immobilized her. She went to her doctor who referred her to a back specialist. She had an MRI and was diagnosed with a herniated disc in her low to middle back. She was treated with physiotherapy and anti-inflammatory medication. She was also given exercises to do at home. As a result of that injury, she is unable to stand for long or do repetitive motions. Accordingly, she does not believe that she can do factory work. She has also been told not to lift weights, which has reduced the type of work that she can do.

[55] She went to a spine specialist. They talked about her having surgery, but Ms. Ghent was not in favour. When she told the specialist about her treatments and exercises, he told her to continue with that therapy. She does not remember talking to her doctor about what she was doing on the farm property at the time.

[56] She avoids back pain when caring for her animals by not lifting any heavy weights. She has changed how she feeds the animals. While she agreed that a bag of feed might be 55 pounds, her son was able to move feed bags for her. Despite the pain, she continued riding her horse. On one occasion, she fell while trying to get on her horse when she lost her balance. She has continued with the herding trials. She agreed that she was able to control a sheep by sitting on it in July 2013.

[57] Ms. Ghent has had no physiotherapy, massage therapy, or chiropractic treatments in the last 12 months. That is partly because she has no employment medical benefits to pay for them. She has not been to a specialist again. She does not wear a back brace but has continued to do her exercises and take anti-inflammatories. She is also careful about her activities to avoid stressing her back.

[58] Ms. Ghent has arthritis in her right hand and fingers that worsens when she is at work; however, she takes medication for that.

[59] To continue with Ms. Ghent’s employment history, when the Bellwood property was sold in 2011, she purchased a rural property in Harriston and obtained similar school supervision employment in the Harriston area. She bought a smaller property than in Bellwood and sold or gave away some of the animals. She then had two horses, 20 sheep and five dogs in Harriston.

[60] Ms. Ghent had some hesitation about moving to a farm property because of her back pain but she wished to maintain the same lifestyle as her son had in the past. She also wanted to keep active in order to avoid further disability.

[61] In 2017, she bred one litter of Border Collies at her home in Harriston. She earned approximately $1000 from that after vet bills. Because of the emotional stress, her lost work time, and high vet bills, she does not intend to do that again.

[62] She also did some dog training in Harriston. In 2011, she earned approximately $1000 for the year; however, that work has gradually reduced over time. It is also income that she cannot depend on. Rather, she simply enjoyed the work.

[63] While she was in Harriston, she sold five or six lambs at approximately $300 each until her son went to school. In 2015, when he left for school, she only sold three lambs. She needed her son to do some of the physical work.

[64] She also sold fleeces from time to time. She sold them for $20 to $30 each, and sold seven, at most, in any particular year. These were cash sales to offset the cost of shearing.

[65] She did register with an employment agency in Mount Forest in 2011. She made a number of applications but did not obtain employment.

[66] Her son worked at the Harriston Toyota plant during the summer. She did not believe that she could do the physical work there, although she did not in fact apply to Toyota. She agreed that it was possible that there was other light work that she could have carried out, but she did not apply.

[67] She considered training for an educational assistant when she was supervising children both before and after separation. However, that is a three-year program and was too expensive for her. She also found that it could be a very physical job and she was unable to do that work.

[68] She did not investigate being a veterinarian technician nor look into being employed at the University of Guelph veterinarian college.

[69] In 2014, she obtained part-time employment at a Tim Horton’s. When her hours increased at Tim Horton’s, she left the school supervision job. Her typical Tim Horton’s shift was 2 p.m. to 10 p.m., three days per week but she was soon able to obtain other shifts. She has been able to work up to 35 hours per week, but she is guaranteed only 24 hours. She was earning $14 per hour by the time she left the Harriston Tim Horton’s.

[70] She continued to look for other employment opportunities, but there was little to find in that area. There is a chicken processing plant nearby, but she did not wish to work there.

[71] When Mr. Busse told her that he was retiring, she “panicked” and put her house in Harriston up for sale in order to reduce her expenses. The house was sold November 1, 2019, and she bought the Norwich property in December 2019. She sold the Harriston house for $385,000 and purchased the new house for $275,000. As a result of that move, Ms. Ghent was required to pay expenses for storing her belongings, giving up her sheep and horses and doing repairs to the home.

[72] In order to cover her expenses, she took out a $30,000 line of credit of which she has used just over $22,000.

[73] Ms. Ghent is now employed at Tim Horton’s in Norwich at $14.25 per hour. She is unable to lift the heavy coffee urns above her shoulders. She continues to work; however, she requires Tylenol and pain inhibitors to maintain her employment. As a result of her injuries, she cannot do regular eight-hour shifts and certainly not a steady week of them.

[74] She is not aware if there are pet stores in Brantford or Woodstock, but she needs to have employment close to her residence due to the life of her 14-year-old car. She has applied to a veterinarian clinic in Simcoe on two occasions but did not get a call back.

[75] Presently, Ms. Ghent is a member of the Canadian Kennel Club. She has to pay $60 a year for that membership. She maintains that membership so that she can continue to be a judge. In the last five years, she has judged at five or six trials.

[76] Ms. Ghent denied making a living breeding dogs now. She has no intention of doing so since she is 60 years of age and lives alone. She would not be able to tend to their care. She does not know if she could make more than what she does at Tim Horton’s. She agreed that some people earn a living from breeding and selling dogs, but she can only have three dogs on her property. Even if she has more time available to her since she is not taking care of the sheep, more hours are not available to her at Tim Horton’s.

[77] In cross-examination, she first disclosed that she moved to her present location near Norwich to be close to her friend, Alene Schultz and Ms. Schultz’s husband. Both she and Ms. Schultz moved to the area at the same time. She knew Ms. Schultz while she lived in Morriston before 1999. They became friends and they now live about 15 minutes apart.

[78] Ms. Ghent’s horses are boarded at the Schultz property. She has maintained her four dogs on her own property. Ms. Ghent gave Ms. Schultz the sheep that she had since Ms. Ghent did not have the space to keep them on her property. In return for the sheep, Ms. Ghent is not required to pay for board or feed for the horses, but she does check on all of the animals in the morning when the Schultzes have left early for work.

[79] The Schultz property is 34 acres. Both Ms. Ghent and Ms. Schultz have advertised as dog breeders. Ms. Ghent takes her dog “Spinner” for herding trials. That dog is owned by both she and Ms. Schultz.

[80] When Ms. Ghent sold the property in Harriston, the dog kennels were not included in the sale. Some were left behind, and some were taken with her to keep her dogs because there was no fencing at the new property. She denied that the kennels were kept for breeding purposes.

[81] Ms. Schultz provided Ms. Ghent’s deposit for the purchase of that property.

[82] When Ms. Ghent gave her sheep to Ms. Schultz there was no paper transaction between them. Those sheep are still registered in Ms. Ghent’s name because it costs money to register the change and she did not want to spend that money.

[83] Ms. Ghent testified that Ms. Schultz can sell the sheep if she wants and they are all on her property. Ms. Schultz had no sheep before this but wanted to increase her herd; Ms. Ghent was happy to be a mentor for her.

[84] In 2018, Ms. Ghent was given a ram in return for advice that she gave to the owners of that ram. She then gifted the ram to Ms. Schultz and Ms. Schultz sold the ram in late 2020.

[85] Ms. Ghent denied that she has discussed going into business with Ms. Schultz. They have not discussed any income producing venture together.

[86] In early 2020, Ms. Schultz had a litter of two Australian Shepherd puppies, and both were sold, but Ms. Ghent was not sure of the price.

[87] Ms. Ghent’s plan is to remain where she is for the future.

[88] Ms. Ghent has not ever carried out a cost-benefit analysis of her sheep business. It costs about $125-$200 per year to raise one sheep. It would take about “roughly” two hours a day to take care of that sheep. That would increase during lambing or if there was special care required. The sale of lambs might offset the cost of the sheep, but she did not test that out. In order to make a living, she understands that one would need 200 to 300 sheep. She only had sheep to train her dogs and not to make money. Neither raising dogs nor sheep are a viable business for her now.

Evidence of Dr. Karen Alexopoulos

[89] Dr. Alexopoulos prepared an affidavit of her involvement with Ms. Ghent and attended for cross-examination. It was agreed that she gave her opinion as a treating physician.

[90] In November 2010, an MRI showed a large disc herniation in Ms. Ghent’s back. Dr. Alexopoulos diagnosed this condition and that diagnosis was confirmed by Ms. Ghent’s surgeon. Dr. Alexopoulos prescribed antibiotics and recommended physiotherapy. She understood that Ms. Ghent went to physiotherapy with some benefit to her.

[91] Over the period 2010 to 2017, the herniation has repaired itself and that has reduced Ms. Ghent’s pain. However, Ms. Ghent continues to have pain from degenerative disc disease and facet arthropathy. This causes back pain and pain to her left hip. These conditions will not get better; they may stay the same or may get worse.

[92] Ms. Ghent also has arthritis in her right hand. This was diagnosed in August 2014. Dr. Alexopoulos recommended anti-inflammatories. This condition will be chronic and may be more severe in the future.

[93] Dr. Alexopoulos has continued to monitor Ms. Ghent’s condition and changed her medication from time to time to deal with her reports of pain caused by her work at Tim Horton’s. She continues to recommend physiotherapy and home exercises.

[94] Dr. Alexopoulos also diagnosed Ms. Ghent with symptoms of depression and anxiety, low back pain, and osteoarthritis in her right hand. She suggested that Ms. Ghent should continue with part-time employment that allows her to take breaks as needed and does not involve repetitive bending, heavy lifting, prolonged sitting, or standing.

[95] Overall, Ms. Ghent has been managing her work and pain effectively and using the therapy as suggested. That said, Dr. Alexopoulos was not aware of Ms. Ghent’s requirements on the three rural properties upon which she has lived since the injury.

[96] When Dr. Alexopoulos rejected “full-time employment” for Ms. Ghent, Dr. Alexopoulos was thinking of a job that would require some physical activity. Ms. Ghent might be able to do full-time employment; however, it would depend on the type of employment. She would not be able to stand or sit in one place too long. Ms. Ghent will continue to have pain regardless of her work or lifestyle.

Evidence of Aleen Schultz

[97] Ms. Schultz has been a good friend of Ms. Ghent for the last 21 years. They met when they were involved with an Australian Shepherd dog club together. She loaned Ms. Ghent $5,000 to buy her house.

[98] Ms. Schultz presently lives in Brant County and has been there since June 2019. Her property has 39 acres. Ms. Schultz has 11 Jacob sheep, five of another kind of sheep, and three dogs. She received all of the sheep from Ms. Ghent as a gift. Before that occurred, Ms. Schultz had studied the breed online and had seen that they were an “easy keeper.” She had always wanted sheep.

[99] Ms. Ghent keeps her two horses on the Schultz property. Ms. Schultz allows her animals to live there and, in return, Ms. Ghent attends to check on the animals in the morning five days a week. Ms. Ghent waters and feeds the animals and checks them for “wellness.” She said that it does not take much effort to water and feed the animal as she has hoses and carts for the feed. Although Ms. Ghent may come to visit on weekends, she does not care for the animals on the weekends. The work is approximately five hours a week.

[100] Ms. Schultz has bred the sheep and sold five lambs for $250 each. She did not give any of the money to Ms. Ghent. Any vet bills are hers since she owns the sheep. With respect to the five lambs, the expense would appear to be $6,000 worth of hay costs over the year. The price of hay is up this year because of the drought.

[101] She has also had a litter of two Australian shepherds at $1,000 each. The net profit might be $500 for the two after one deducts feed, training, “health stuff,” veterinary expenses, and registration

[102] She has no other arrangements with Ms. Ghent with respect to the animals.

Evidence of Mr. Busse

[103] With respect to Ms. Ghent’s income, Mr. Busse did not deny much of the early history. He agreed that in 2009, Ms. Ghent was working as a lunch monitor for minimum wage and had no other income. Although she was doing some dog training, that income went into training her own dogs.

[104] On the property in Bellwood, they had two horses, a miniature horse, 50 to 60 sheep, geese, ducks, and six dogs. The dogs were Australian shepherds or Australian cattle dogs. Ms. Ghent made all decisions with respect to the animals as it was her enterprise. The expenses for those animals came out of the joint account. He built the runs and pens and cleaned the property.

[105] They received income from the dogs when they sold eight or nine puppies for $850 per puppy about 12 or 13 years ago. They had a litter every two years. Feed was $300 a month plus veterinarian bills. Although the business could have been profitable, that would take two or three litters per year.

[106] The money from the sale of the puppies went back into the business and paid for other expenses. The business was registered and advertised. Ms. Ghent went to trials with her dogs. He described it as a “business, passion, and hobby” all rolled in one. But it was her business.

[107] Overall, the family was out of money because of the dog business. When he discussed expanding the business to make a profit, they argued but Ms. Ghent did not agree to expand.

[108] With respect to the sheep breeding, he was involved in building fences, mangers, and feed troughs. He was also involved with difficult lambing. At that time, sale prices were $200 to $300 per sheep but, at the stockyard auctions, they might get $130 to $150 per sheep. Expenses relating to the sheep fluctuated because they were less in the summer and more in the winter for feed and hay. Hay expense could be $6,000 a year, and four or five lambs would get $250 per each. It was not a profitable business, although the money earned went back into the general expenses for the household.

[109] When their son went to school, he suggested that Ms. Ghent get other work. However, she did not want to leave the property for other work.

[110] As set out below, if there had been more income, he would not have taught night school or taken on relief milking.

Analysis

[111] Ms. Ghent submits that, for support purposes, I should rely on her income tax returns to determine her income. Mr. Busse submits that I should impute $30,000 to her an annual basis. For the following reasons, I accept Ms. Ghent’s submission.

[112] By and large, I accept the evidence of the parties. Since they have been separated for so long, it is not unusual that they have little knowledge of the other’s current circumstances. They essentially agree or take no issue with their past when together.

[113] As set out below, I have some doubts about some parts of Ms. Ghent’s evidence, but those concerns do not affect the overall analysis.

[114] Although Mr. Busse submits that Ms. Ghent could earn more from the combined dog and sheep business, she has never been able to earn significant income from those enterprises in the past. Indeed, she has lost money. I accept Mr. Busse’s evidence that the family finances were harmed by Ms. Ghent’s passion. I reject Ms. Ghent’s evidence that she was not aware of the reality of Mr. Busse’s concern and the reality of their situation.

[115] Ms. Ghent was clear and truthful in her evidence until cross-examined about the state of the family finances prior to separation. In that area, she often hesitated, gave qualified answers, or attempted to avoid answering the question. She eventually admitted that the family had refinanced its debts and was still short at the end of the month. All parties agreed that the dog and sheep business could not sustain itself. As set out below, Mr. Busse was essentially working four jobs and getting very little sleep to manage them. No one would carry on that life unless they had significant financial problems. Ms. Ghent’s failure to admit the obvious hurt her credibility in this area.

[116] However, Mr. Busse allowed the business to go on.; he cannot rewrite history about Ms. Ghent’s ability to earn more than she does in the dog-breeding and sheep-selling business.

[117] I have doubts about the truth of the business relationship between Ms. Ghent and Ms. Schultz. The coincidence of their residence and animal care duties is unlikely. The sheep are still in Ms. Ghent’s name and she is helping for part of a day taking care of them. It is not credible that her friend, with no experience with sheep, would decide to take on approximately 20 sheep. Further, Ms. Ghent has a passion for sheep and dogs; she is not likely to give them up so quickly. She needs the money and obviously has good reason to hide any extra income from Mr. Busse.

[118] I do not believe that Ms. Ghent did not know what Ms. Schultz earned from the sale of the two dogs in 2020. This topic has been a passion of Ms. Ghent for many years. She would want to know the result to know, at the very least, how her mentee was doing in her business.

[119] However, there is no way for me to determine what, if any, income is being generated by that effort. Given the historical evidence in this case, that income is unlikely to be significant. Although both lawyers talked about gross dollars from sales, I have little evidence of the amount of expense necessary to earn those funds. There has been little discussion of the extent of veterinarian bills.

[120] In cross examination, it was suggested that if Ms. Ghent had three litters per year of four puppies, she would earn 12 times $1,500 each or the same amount as her spousal support. However, as Ms. Ghent pointed out, she had never done that before. Only once did the family business have two litters in one year. It also leaves out the expense of caring for the dogs, buying the dogs, and the capital costs to care for that many animals. On this evidence, it is not realistic to suggest that Ms. Ghent can earn a substantial living in the dog and sheep business given her age and circumstances.

[121] Throughout the marriage and since separation, Ms. Ghent has never made $30,000 per year. On her efforts, she now makes more with part-time employment than she ever has in the past. There is no evidence to suggest that she is forgoing any likely employment that would earn more.

[122] Both before and after separation, Ms. Ghent has made efforts to obtain employment at minimum wage and with some sacrifice to her health.

[123] Ms. Ghent’s evidence of her health is corroborated by Dr. Alexopoulos. While I must be cautious about Dr. Alexopoulos’s area of expertise, there is no evidence denying her corroboration. Dr. Alexopoulos relies to some extent on Ms. Ghent’s history, but the doctor also relies on her objective tests and observations to render her opinion.

[124] Both in Bellwood and Harriston, Ms. Ghent has maintained two part-time jobs and continued to search for work. Now, in Norwich, she continues to look for extra shifts to maintain herself despite her health challenges.

[125] I do not accept that Ms. Ghent is as unable to work as Dr. Alexopoulos suggests. Ms. Ghent is still doing limited farm chores while working at Tim Horton’s. She now has benefits from Tim Horton’s and thinks that physiotherapy is covered but does not know for certain. This seems odd since both Ms. Ghent and Dr. Alexopoulos believe that she has benefited from physiotherapy. If Ms. Ghent were in as much pain as she suggests, one would think that this would be the first benefit to identify and use.

[126] However, I do accept that, given her age, education, and physical limitations, Ms. Ghent is doing all she can to support herself. Throughout the marriage, she has had a history of minimum-wage jobs. She has been working through some amount of pain both for her passion and for her employment. She is doing everything she can to support herself and is still in need of support.

[127] Accordingly, for the purposes of my spousal support analysis, I shall apply Ms. Ghent’s income tax records to determine her income in each of the years in issue.

What is Mr. Busse’s Income?

[128] Ms. Ghent submits that Mr. Busse’s income, both past and future, should be imputed at $99,000 per year or approximately what he earned as a teacher until his retirement in 2019.

Statement of Facts

[129] It is agreed that Mr. Busse was employed as a high school teacher with the Halton Board of Education throughout most of the parties’ marriage.

[130] For 2009, Mr. Busse’s line 150 income was $104,114.05 from the Halton District School Board and from Murray and Suzanne Schnarr.

[131] For 2010, Mr. Busse’s line 150 income was $103,817.64 from the Halton District School Board.

[132] For 2011, Mr. Busse’s line 150 income was $106,592.83 from the Halton District School Board.

[133] For 2012, Mr. Busse’s line 150 income was $109,412.98 from the Halton District School Board.

[134] For 2013, Mr. Busse’s line 150 income was $108,512.70 from the Halton District School Board.

[135] For 2014, Mr. Busse’s line 150 income was $104,873.71 from the Halton District School Board.

[136] For 2015, Mr. Busse’s line 150 income was $95,116.10 from the Halton District School Board.

[137] For 2016, Mr. Busse’s line 150 income was $95,585 from the Halton District School Board.

[138] For 2017, Mr. Busse’s line 150 income was $96,872.04 from the Halton District School Board.

[139] For 2018, Mr. Busse’s line 150 income was $95,842.35 from the Halton District School Board.

[140] For 2019, Mr. Busse’s line 150 income was $96,286.22 from the Halton District School Board.

[141] Filed in evidence was Mr. Busse’s 2020 income tax return, which showed an annual pension income of $55,823.

Evidence of Mr. Busse

[142] Mr. Busse is 56 years of age. He is presently married to Ms. Costa-Busse who is aged 43. They were married in July of 2011.They have twins who are now eight.

[143] Mr. Busse started teaching in Milton in September 1989. He taught summer school from 1991 and for the next 26 years to help pay bills. Summer school was in south Oakville for the month of July from 8 a.m. to 1:30 p.m. He last taught there two or three years before he retired in 2019.

[144] He commuted to Milton from Bellwood, which was approximately 50 to 55 minutes. When they moved to the property in the early 2000s, they had to build a barn and pay for fencing and hydro to the barn. As a result, he taught night school on Mondays and Wednesdays from 6:30 p.m. to 9:30 p.m. in Oakville. He then drove one hour and 20 minutes back to Bellwood.

[145] He started milking cows in 2008. He did this for 2 ½ to 3 years from 5:45 p.m. until 10 p.m., although it sometimes went longer during calving season. He did this on the nights that he was not teaching night school and on Saturdays and Sundays. He earned about $5,000 per year from milking cattle. He continued to do this when he was commuting from his parent’s residence in Etobicoke after separation.

[146] Mr. Busse testified that in the last three or four years leading up to their separation in 2009, the relationship between he and Ms. Ghent was difficult. He felt that he was being treated as a “worker drone.” He was berated and not respected by Ms. Ghent.

[147] One of the issues that led to the separation was the financial strain that the family was under because of the number of animals on the property: “the expense for the animals was huge.” Because of the large expenses, Mr. Busse borrowed money from his father to cover all other expenses. They were always behind on property taxes and paid them from their income tax refund.

[148] In 2004, they consolidated their loans to make ends meet.

[149] Mr. Busse wished to expand the flock, but Ms. Ghent did not agree. At that time, they were spending $900 a month on hay for the months of December to March and had large fuel bills. They were in arrears of realty taxes of $8,000 or $9,000. In order to cover their debts, Mr. Busse’s father cosigned a loan for them. Ms. Ghent did not agree to consolidating the loan again or renegotiating the mortgage. Mr. Busse then obtained the job milking cattle. On top of these jobs, he also took care of the animals in Bellwood.

[150] After the separation, he continued to have his pay go into the joint account and Ms. Ghent took over the payment of the bills until the house was sold. He had no expenses then, except for gas and coffee, because he lived at his parents for free.

[151] He has not milked cattle since the spring of 2011. He needs a hip replacement and cannot physically do the work.

[152] Mr. Busse retired in June 2019 and has had no other employment since then. He is presently not looking for other employment. His annual pension income is $55,823.

[153] Mr. Busse decided to retire because he had got to “the factor of 85” – the point when he could receive his full pension. He spoke with other teachers and his wife and his father about the decision. He had significant debt with his father. He thought that retiring would reduce the expense of wear and tear on his car along with the expense of gas and clothes.

[154] When he spoke with his father to confirm his debt for his financial statement, it was only then that he found out that the debt was in excess of $150,000. Given the debt to his father, the bank would not allow him to refinance his house mortgage.

[155] Mr. Busse found that his work was getting more stressful. As an older teacher, he could not relate to the students as well as younger teachers could. He felt that students now have more energy and make more demands. The “bureaucratic stuff” became a “paper shuffle.”

[156] Mr. Busse also wished to stay home and care for the children and his parents needed more help. By the time he retired, the twins were in school full time. He was able to walk them to school by 8:30 a.m. and come back and pick them up by 3:30 p.m.

[157] With all those considerations, it was not worth the financial benefits to continue working.

[158] After his retirement in 2019, he looked for other work supply teaching in the Oakville/Burlington area. A full day of supply teaching could include three or four classes and lunch supervision. However, he could also be asked to simply work for a third of a day or two thirds of a day. If he obtained a full day, he would be paid $236 gross. Pursuant to his terms of employment, he can only work a maximum of 50 days per year.

[159] Ms. Busse is still in good standing as a teacher. However, with the pandemic, he has stayed at home to teach the twins because there is less availability for supply teaching. He does not know what the future will hold. Presently there is no other teaching available. He has no other sources of income.

[160] While he could find work as a supply teacher in Wellington County, Halton region teachers know him better and he believes that he would likely get a lower priority in Wellington county. Although he could have been on an emergency supply list, he lives too far away from the Halton school board to be practical.

[161] Mr. Busse is also a paint artist of some renown. He has sold some his paintings. He testified that it takes about 100 hours for one piece. He might complete ten a year. He paints five days per week when the others in the house are asleep.

[162] The sales of his art are inconsistent. He has sold five or six pieces since 2016. He has a website and has shown in galleries and locations such as Langdon Hall. The prices of his art run in the thousands of dollars. He typically receives 50% of the sale price from the gallery or show.

[163] The separation agreement sets out the debts that he took on and he has been trying to pay those down with some help from his father. He is only paying the minimum payment on some of those debts.

[164] Mr. Busse agreed that he had not always provided his financial information as required by the separation agreement.

[165] Mr. Busse agreed that he had a vasectomy after his son was born and reversed it in the winter of 2011. He acknowledged that he was aware of his spousal and child support obligations at the time that he had his vasectomy reversed.

[166] Mr. Busse purchased a home with his new wife in October 2010 before the separation agreement was signed in January 2011. He believes that his father loaned him the money for the down payment, but it may also have come from Ms. Costa-Busse.

[167] When Ms. Costa-Busse returned from maternity leave, they felt it did not make sense for her to return to her job because, after daycare, they would not earn more than about $200 a month. She also did not want the children in daycare because of circumstances for her own childhood.

[168] Ms. Costa-Busse had a business, but it was closed in 2019. Accordingly, in the fall of 2019, both were able to be home with the twins. During that time, Ms. Costa-Busse applied to work at various retail outlets but was not successful until December 2019 when she returned to part-time employment.

[169] Ms. Costa-Busse is now employed part time at a feed supplier. She works 25 hours per week on Mondays, Wednesdays, and Thursdays. When she is at work, Mr. Busse takes care of the children. With the pandemic, he has been teaching the children virtually from the school.

[170] Mr. Busse’s present income is $3,500 net per month from his pension. He currently owes his father a total of $151,318. This includes the house deposit as well as regular monthly shortfalls for groceries over the last eight years.

[171] The agreement sets out that the amount of support can be reviewed when he retires, and he gave Ms. Ghent notice that he was planning to retire. He asks that spousal support be terminated or reduced because it has been difficult to make ends meet for his children over the last eight years. Specifically, he asks that support end July 1, 2019.

Evidence of Claudette Costa- Busse

[172] Ms. Costa-Busse is 43 years of age. Since December 2020, she has been employed part time at a feed store. She earns $17 per hour at a maximum of 28 hours per week.

[173] From 2014 to 2019, she was self-employed putting her artistic designs on such things as clothing and cell phone covers for the equestrian market. She was able to start her business with the assistance of some investors. Ms. Costa-Busse produced her profit and loss statements for the years 2015 to 2019. The business lost money most years, except 2019 when she liquidated her inventory. She closed the business in October of 2019. When she liquidated the business, she paid back some of her investors but did not take any money for herself. Her income tax returns for 2015 to 2019 show that at no time did she make more than $5,000 per year.

[174] Ms. Costa-Busse looked after the children until Mr. Busse retired. They then decided that she should go to work but she could not find any work until she got part-time work in December of 2019.

[175] Ms. Costa-Busse agreed that she and Mr. Busse discussed his retirement with his parents. They all decided that it was beneficial for him to retire.

Evidence of Ms. Ghent

[176] Ms. Ghent testified that, when Mr. Busse was working, he taught art and English from 9:00 a.m. until 3:00 p.m. He also had some after-school responsibilities and he coached sports. He taught summer and night school English. The summer courses were two weeks in length, and he taught two of them in July. This occurred when they were in Bellwood and continued until the time of their separation. The evening classes were two days per week for approximately three hours. She thought that they were from 4:00 p.m. to 7:00 p.m. or from 5:00 p.m. to 8:00 p.m. The night school classes were throughout the normal school year.

[177] Ms. Ghent agreed that Mr. Busse also did relief milking at a local dairy farm. He attended the evening milking along with cleaning and feeding calves. He did this two times a week and sometimes on weekends.

[178] Ms. Ghent estimates Mr. Busse’s income to be $99,000 because of his income that was not declared including the relief milking. She thought that $99,000 was close to what he was earning.

Analysis

[179] On this evidence, I impute an income of $96,286 (the amount he earned in 2019) to Mr. Busse going forward. I accept Mr. Busse’s evidence as to his reasons for retiring, but they do not assist his case.

[180] Mr. Busse’s cash income from milking came to an end many years ago. Given the family debts and expenses, it was necessary for Mr. Busse to take on four jobs, but that is no longer sustainable and reasonable – if it ever was.

[181] Like Ms. Ghent’s business, I have no ability to determine what income Mr. Busse might make from his art. While he has sold some pieces and has shown them in significant places, he has made little profit on them. I cannot impute a particular figure for that income.

[182] Ms. Costa-Busse has been candid about her lack of income; there is no reason to reject her evidence and I accept it for my analysis.

[183] As pointed out in Lavie v. Lavie, 2018 ONCA 10, there is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: at para. 26, citing Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[184] Mr. Busse has made a dreadful decision to retire when he did. He did not have to retire; instead, he chose to do so. On that basis, Ms. Ghent has established that he is under employed. Indeed, Mr. Busse conceded as much in argument.

[185] In Hickey v. Princ, 2015 ONSC 5596 (Div. Ct.), at para. 1, the court asked:

[I]s a former spouse, who chooses to retire at age 51 on a full pension but is still able to work and earn an income, entitled to reduce and ultimately discontinue paying spousal support to his former wife, who is disabled from working and is almost totally dependent on those spousal support payments to provide for her needs?

[186] In that case, the court answered that Mr. Hickey could not. I answer the question in the same way to Mr. Busse.

[187] On Mr. Busse’s evidence, when he decided to retire, he knew all of his obligations: to Ms. Ghent, his son in college, his new wife, his new family, and his father’s debt. He knew that Ms. Costa-Busse’s business was closing. The only person to benefit from Mr. Busse’s retirement was Mr. Busse. His decision is neither reasonable nor responsible.

[188] A parent’s desire to spend more time with his or her children is something to be encouraged and valued, but that has to be balanced against the parent’s obligation to provide financial support: see Horbas v. Horbas, 2020 MBCA 34. And Mr. Busse has two families to support.

[189] Ms. Ghent submits that the debt to Mr. Busse’s father has not been proved and that I should consider it a gift. I need not make that determination on this evidence. What I do know is that Mr. Busse discussed this debt with his father, and they all agreed that he could reduce his income. Debt or not, Mr. Busse’s father does not appear to be worried about being paid back.

[190] Mr. Busse acknowledges that he has abilities to carry on teaching and he should have continued to do so. In July of 2016, the parties were before Emery J. with respect to H.’s post-secondary expenses. Mr. Busse’s counsel noted that Mr. Busse was not retiring in the foreseeable future – “he can’t afford to retire…. He’s going to teach until I guess they throw him out maybe.” I do not suggest that such a comment is binding on Mr. Busse, but it is strong evidence that he was aware of his finances and obligations.

[191] Mr. Busse raises the argument that Ms. Ghent will receive support from his pension that has already been paid to her from the equalization. However, the court in Hickey referred, at paras. 56-60 and 64, to the noted case of Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, at para. 61:

The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown. There is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision. On retirement, the pension-holding spouse may apply to vary the support order if his ability to pay support is compromised. The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s. 37(2) of the Family Law Act.

Far from supporting the proposition that a support order should be routinely varied when a payor retires, Boston instead holds that there is no reason why a spousal support order cannot continue past the date of retirement. The pension-holder is entitled to vary only if he is able to demonstrate that his ability to pay support is compromised and therefore a material change in circumstances has occurred.

Evidence that a payor voluntarily retired in order to frustrate a support order is clearly an important fact militating against a finding of a material change. In such a case, it would be open to the court to impute income to the payor up to an amount he would have earned if he had not retired.

However, it does not follow that the absence of such evidence means that the dependent spouse, and the court, must accept voluntary retirement as giving rise to an automatic right to vary the support order to an amount commensurate with the payor’s pension income. As Boston noted, the issue is whether “his ability to pay” has been compromised. The payor’s ability to pay is not necessarily restricted to his pension income alone, and may include his capacity to earn income, either from the job he has chosen to leave or from other employment following retirement. This is consistent with s. 17(4.1) of the Act, which requires the court to determine whether “a change in the condition, means, needs or other circumstances of either former spouse” has occurred, before making a variation.

In our view, the “means” of the Respondent to pay support is not restricted to his pension income, since he is fully capable of earning income from some other source, and is of an age where it is reasonable for him to continue earning employment income. His capacity to earn income from some other source should have been considered by the motion judge in determining whether a material change in circumstances had occurred.

[Citations omitted.]

[192] Mr. Busse’s pension income is almost $56,000. I am confident that he can use his teaching and artistic skills to find other income at more than minimum wage to correct his error in retiring too early.

[193] On that basis, I find that Mr. Busse’s income in past years is as set out in his annual income tax returns. However, for the year 2020 and ongoing (until agreement in writing or further court order), Mr. Busse shall be imputed to earn an income of $96,286.22.

Is Ms. Ghent owed funds with respect to retro-active spousal support?

[194] The evidence set out above is equally relevant to this analysis without needing to be repeated here.

[195] The agreement states:

15.1 Norman will pay to Cindy the sum of $1,500.00 per month for spousal support commencing March 1, 2011 and continuing on the first day of each month thereafter. The spousal support amount is based upon Norman’s annual earnings of $99,000.00

15.4 Upon the written request of either party, Cindy’s entitlement to support and the amount of support may be reviewed by the parties:

(a) on the five year anniversary of the Separation Agreement; and/or

(b) as of Norman’s 65th birthday; and/or

(c) upon Norman’s retirement.

[196] Although the agreement foresees an annual change in child support to Mr. Busse’s income, spousal support remains the same until it is reviewed.

[197] As the parties have agreed that support may be reviewed, a material change is not required to vary the support. More than five years have passed since the agreement, and Mr. Busse has retired. No one asks that the agreement be set aside. Pursuant to the terms of the agreement, I have authority to review the spousal support term.

[198] In Verkaik v. Verkaik, 2020 ONSC 7993, the Divisional Court summarized the following, at paras. 21-22:

Canadian law has, for some time, recognized a clear distinction between a “motion to change” and a “review.” A review involves an application for support without the need to prove a material change in circumstances. And, importantly for this case, unless the review is restricted to a specific issue (which, in this case, it is not), a “review” of support payable is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum…

As Prof. James G. McLeod said in his annotation to Trewin v. Jones, under a review, either party may return the matter to court at a fixed time. On the return, the court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies.

[Citations omitted.]

[199] Pursuant to the terms of the agreement, spousal support cannot be reviewed until five years after its execution. Accordingly, my review must start February 1, 2016 and not in 2011 as submitted by Ms. Ghent.

[200] Ms. Ghent’s application was issued in June of 2015. At that time, among other demands, she requested Mr. Busse to comply with the separation agreement and to provide his three most recent income returns. In June 2020, the application was amended to claim spousal support arrears based on the information that had been provided by Mr. Busse.

[201] Mr. Busse has certainly been aware of Ms. Ghent’s request for financial information since the agreement was signed. He has admitted to being, at the very least, extremely slow in living up to his production obligations pursuant to the agreement. I find it reasonable to commence the review as of February 1, 2016.

[202] When contemplating a spousal support order, I must take into consideration the condition, means, needs, and other circumstances of each spouse, including (1) the length of time the spouses cohabited, (2) the functions performed by each spouse during cohabitation, and (3) any order, agreement, or arrangement relating to the support of either spouse.

[203] Any order for support should: recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown; apportion between the spouses any financial consequences arising from the care of any child of the marriage; relieve any economic hardship of the spouses arising from the breakdown of the marriage; and, so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time.

[204] It is agreed that the marriage was 23 years in length and Mr. Busse has been paying support for ten years. That supports an ongoing obligation for support.

[205] Ms. Ghent stayed home to care for the children in what amounted to a mutual enterprise to carry on a rural lifestyle. That made it difficult or impossible for her to maintain a career other than as she did.

[206] Ms. Ghent is 60 years of age and her health is somewhat compromised.

[207] As set out above, given her age, education, and physical limitations, Ms. Ghent is doing all she can to support herself. Throughout the marriage she has had a history of minimum-wage jobs. She has been working through some amount of pain both for her passion and for her employment. She is doing everything she can to support herself and is still in need of support.

[208] Ms. Ghent is of limited means. She is still hindered by her role in the marriage to obtain self-sufficiency. She has been reasonable in her expenses.

[209] In determining support, I must consider Mr. Busse’s abilities and income since separation. As set out above, he has a past and continuing ability to support Ms. Ghent.

[210] Taking all of the circumstances into consideration, I find that Ms. Ghent is still entitled to support on both a compensatory and non-compensatory basis.

[211] Relying on the Spousal Support Advisory Guidelines and using the annual income figures set out above, the range of spousal support (with child) is:

YEAR	LINE 150 EARNINGS Mr. Busse	LINE 150 EARNINGS Ms. Ghent	S.S.A.G.
2016	$95,585	$17,900	$1,453 - $1,928
2017	$96,872	$17,176	$1,589 - $2,074
2018	$95,842	$18,540	$1,681 - $2,222
2019	$96,286	$18,607	$1,685 - $2,229
2020 (to June)	$96,286	$16,898	$1,724 - $2,270
2020 (after July 1)	$96,286	$16,898	$2,282 - $3,043

[212] As set out below, Mr. Busse paid substantial amounts towards H.’s post-secondary expenses for 2016 and 2017. That substantially affects his spousal support advisory guidelines figures.

[213] As set out below, child support came to an end June 30, 2020. Accordingly, spousal support as of July 1, 2020 would be within the range of $2,282 to $3,043 when the child support obligation was removed.

[214] For the following reasons, spousal support shall be fixed at the low end of the ranges set out above commencing February 1, 2016 (the fifth anniversary of the agreement). That amount shall increase to $2,300 as of July 1, 2020 when child support came to an end.

[215] In Gray v. Gray, 2014 ONCA 659, the Court of Appeal for Ontario used the low end of the range, in part, because of second family obligations for the payor husband: at para. 50.

[216] While the law requires me to impute a significant income to Mr. Busse, I cannot ignore the financial demands place upon him by this order. However, the case law is clear that family support obligations are in priority to second family support obligations.

[217] Some of Mr. Busse’s financial problems are caused by the amount of debt he took on as part of the settlement. Those debts, as I have found above, resulted from Ms. Ghent’s passion for sheep and dogs that led to the family’s financial undoing. In her evidence, Ms. Ghent agreed that she settled for less support than she was entitled to because of the amount of debt taken on by Mr. Busse. While that reduced his equalization payment, those debts remain a burden to him. In contrast, Ms. Ghent has no mortgage on her home and only a small line of credit.

[218] There is often confusion over the terms “retroactive support” and “arrears of support.” By either term, I mean the reviewed amount of support for the past years since this application was brought.

[219] At this point, I need further submissions with respect to the arrears of spousal support for the following reasons.

[220] It is agreed that Mr. Busse began to pay periodic spousal support to Ms. Ghent in the amount of $1,500 per month under the agreement commencing March 1, 2011.

[221] The Family Responsibility Office records confirm that Mr. Busse has paid spousal support in the amount of $1500 per month to the date of trial but is in arrears of $10,190 as at the time of trial. Some, if not all, of those arrears relate to his failure to pay the outstanding child support order. Those arrears will be influenced by my determinations below. My determination of spousal support will also affect what the arrears might be. Counsel will need to recalculate those figures based on these findings.

[222] The law is clear that any lump sum spousal support must be discounted for tax: see Samoilova v. Mahnic, 2014 ABCA 65, 41 R.F.L. (7th) 83; Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016; Hume v. Tomlinson, 2015 ONSC 843, 59 R.F.L. (7th) 169; Robinson v. Robinson, 2012 BCCA 497, 40 B.C.L.R. (5th) 108; and Patton‐Casse v. Casse, 2011 ONSC 6182, 8 R.F.L. (7th) 393 (supplementary reasons to Patton-Casse v. Casse, 2011 ONSC 4424, 8 R.F.L. (7th) 343).

[223] The rate of tax and how it should be applied was not argued before me. What was before me, of course, was not based on the findings that I have now made. While the DivorceMate calculations are of assistance to carry out those calculations, I am not comfortable imposing that on the parties without their submissions.

[224] Further, I will need the parties to file DivorceMate calculations based on my income findings for the years 2016 to 2020. I can foresee arguments about how the arrears ( if any) and tax calculations should be done. I do not rule out that I have made errors in my DivorceMate calculations or simple arithmetic.

[225] It may also be that the parties can resolve this arrears calculation based on my income findings. If not, they shall provide written submissions within 30 days as to their views on the tax impact and the calculation of arrears to May 1, 2021. Any responding submissions will be provided within 15 days thereafter. Those submissions will include each party’s DivorceMate calculations for each year in issue.

Should Ms. Ghent’s spousal support be terminated or reduced?

[226] For the reasons set out above, spousal support shall continue until there is a variation based on a material change in the circumstances of either party. During the marriage, Ms. Ghent stayed home to care for the children and the parties’ rural lifestyle. She has not obtained self-sufficiency despite reasonable efforts to do so.

[227] I note that the DivorceMate calculations do not determine a duration for spousal support; on these facts, I do not either.

[228] I have not been asked to set aside the agreement. Accordingly, it would appear to me that pursuant to the agreement, the amount of support may be reviewed by the parties as of Mr. Busse’s 65th birthday if that was thought beneficial.

Is Ms. Ghent owed funds with respect to retro-active child support?

[229] There are two issues here. What amount should Mr. Busse have been paying in child support each year and when should it come to an end?

Statement of Facts

[230] It is agreed that commencing March 1, 2011, Mr. Busse began paying child support for H in the amount of $869 per month.

[231] The agreement sets out that:

Norman will comply with Section 21 of the Child Support Guidelines and will provide financial disclosure including Income Tax Returns, Notices of Assessment and a current pay statement by May 1st of each year. Cindy and Norman will then consent to a variation of support in accordance with the Child Support Guidelines by July 1st of each year.

Evidence of Mr. Busse

[232] Mr. Busse has been paying child support of $869 per month according to the agreement. That support was changed to $906 per month by the order of Lemay J. on August 11, 2015, and then reduced to $869 per month by the order of Emery J. on August 22, 2016. The support order has not changed since then.

[233] As of February 1, 2021, Mr. Busse is in arrears of $10,190. He has been in discussions with the Family Responsibility Office about those arrears. He has been paying spousal support; however, because child support is disputed in this action, the Family Responsibility Office has not yet enforced the child support order. He does not know how long that situation will last since Ms. Ghent has not been cooperating to bring the child support to an end.

[234] Mr. Busse agrees that he did not send the financial information to Ms. Ghent for 2015. He points out that she did not provide her information to him either. It appears that he has provided the records for the other years within this litigation.

[235] Mr. Busse last spoke with his son in the spring of 2015. He has received little information about his education since then.

[236] Mr. Busse understood that H. graduated in April 2020 because, from the records he has received, H. only had two credits left in 2019. He has not received an explanation for why H.’s term was extended to the summer of 2020. He asks that child support come to an end in April 2020.

Evidence of Ms. Ghent

[237] Although the agreement sets out that Mr. Busse was to provide her with his annual income tax returns, he did not do so from 2011 to 2014. She asked for them in 2014 and 2015 but he did not comply. She also asked in 2017. She gave him her income tax returns each year.

[238] While H. was in school, Ms. Ghent paid his rent except for the months of May to August when he resided with her. However, between his last two years, H. remained in Toronto to finish his thesis and was also not employed for that summer. Ms. Ghent was not sure why H. had more credits than necessary and does not know how many credits he needs. She does not know why his schoolwork carried on into the summer of 2020.

[239] Ms. Ghent submits that Mr. Busse’s child support should have ended in June of 2020 when H.’s post-secondary education came to an end. She agrees that Mr. Busse continued to pay support until June of 2020. She acknowledges that, as of the end of the trial, she had not yet advised the Family Responsibility Office that Mr. Busse should not be enforced for this amount after June of 2020.

Analysis

[240] Mr. Busse submits that Ms. Ghent’s application seeks the payment of arrears of child support but not a variation of child support. While that is true, I do not accept that he has been prejudiced by this claim. As set out in the separation agreement, he was to disclose his financial information so that the parties could “consent to a variation of support in accordance with the Child Support Guidelines by July 1st of each year.” Mr. Busse cannot be surprised to find that he needed to negotiate child support in terms of the Child Support Guidelines.

[241] The original application requested the financial information which he admittedly failed to provide. If I were to ignore this claim, the next proceeding could commence immediately with the same result. That would not be to the benefit of anyone involved.

[242] Finally, Mr. Busse’s draft order at the commencement of trial asked that any overpayments of child support be repaid to him. He cannot ask for a recalculation that only benefits him.

[243] The evidence with respect to H.’s last year in school is not very helpful. However, as set out below, Ms. Ghent seeks a variety of s. 7 expenses from Mr. Busse for H.’s post secondary education. Part of that claim is for tuition costs to the end of June 2020. I infer from that evidence that H. finished school at the end of June. So, too, did Mr. Busse’s obligation to pay child support. By then, H. was no longer a dependent entitled to child support. I find that Mr. Busse’s child support obligation ended as of June 30, 2020.

[244] The Supreme Court of Canada in Michal v. Graydon, 2020 SCC 24 has confirmed that a claim for child support may be brought even though the child has become an adult. However, I must still consider the factors set out in the Supreme Court of Canada decision in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231. There, the Court determined that a court should take four factors into account in determining retroactive support applications: at para. 133. Those four factors are:

1. Reasonable excuse for any delay in bringing the application.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

[245] Ms. Ghent testified that she had asked for the information, but Mr. Busse did not respond. Mr. Busse denies that to some extent, but that dispute makes little difference given the terms of the agreement. Mr. Busse’s obligation was clearly set out. Mr. Busse was also ordered to provide the information and delayed. On that basis, Ms. Ghent has been reasonable in her diligence in notifying Mr. Busse of her claims and Mr. Busse has been unreasonable in his conduct.

[246] H. was in school throughout the time in question and, as set out above, Ms. Ghent’s circumstances were such that every dollar of support would have been of assistance to H.

[247] In any event, based on Mr. Busse’s income, the Guidelines in force in those years, and his court orders to date, Mr. Busse’s retroactive calculation does not bring about a substantial payment, if any, depending on the reality of payments and the records of the FRO.

YEAR	LINE 150 EARNINGS	GUIDELINE AMOUNT	SUPPORT PAID	DIFFERENCE	ARREARS
2012	$109,412.98	$953	$869/month	$84	$1,008
2013	$108,512.70	$946	$869/month	$77	$924
2014	$104,873.71	$918	$869/month	$49	$588
2015	$95,116	$872	$869/month	$3	$36
2016	$95,585	$876	$906	($30)	($360)
2017	$96,872	$886	$869	$17	$204
2018	$95,842	$878	$869	$9	$108
2019	$96,286	$881	$869	$12	$144
2020	$96,286	$881	$869 X 6	$12	$72

[248] Accordingly, commencing February 1, 2012, Mr. Busse’s child support obligation is varied in accord with his income as found in this judgment and in accord with the Child Support Guidelines. Such child support ceases as of June 30, 2020.

Is Ms. Ghent owed funds with respect to a retro-active Section 7 Claim?

[249] Ms. Ghent submits that Mr. Busse is required to pay 75% of H.’s gross post secondary school expenses. Mr. Busse submits that H. should contribute a reasonable amount to those expenses before the parents are required to pay their share.

Statement of Facts

[250] The separation agreement refers to this issue as follows:

6.4 Norman will contribute 75% and Cindy will contribute 25% to the special and extraordinary expenses for the child, H, which expenses shall be set pursuant to Section 7 of the Chid Support Guidelines, to include but limited to the Pony Club, karate, healthcare, medical and dental expenses that are not covered by a plan of insurance, post secondary education expenses and such other expenses as agreed upon by the parties.

6.5 Norman and Cindy agree that H. will be deemed to reside with Cindy while temporarily living away from the residence of his mother, Cindy, to attend an educational institution, to pursue summer employment or while on vacation from full time attendance at an educational institution but continues to maintain a residence with Cindy.

[251] H. was accepted to begin his full-time undergraduate studies at the Ontario College of Art and Design in Toronto in September of 2015.

[252] H’s earnings from summer employment during his tenure as an undergraduate student at O.C.A.D. consisted of the following:

Year	T4(s)
2015	$4,117.23
2016	$3,068.35
2017	$3,468.93
2018	$4,835.29
2019	$0.00

[253] For the year 2015, H. designated the transfer of his tuition to Mr. Busse in the sum of $3,401.

[254] The cost of H.’s rented student accommodations in Toronto while attending O.C.A.D. were approximately $600 per month during his five years of study as an undergraduate.

Ms. Ghent’s Evidence

[255] Although Mr. Busse paid his share of post-secondary expenses in 2015 and 2016, that was because she took him to court to obtain that order; otherwise, he did not pay.

[256] In 2015, Mr. Busse was ordered to pay $7,500 towards his son’s education along with providing his financial disclosure each year. However, Mr. Busse did not provide that information in 2017 or 2018. Ms. Ghent did receive that information in January 2019 when Mr. Busse said that he wanted to end child support.

[257] When H. started school in 2015, she assisted him by paying his board of $600 a month and providing him with $100 per month allowance. She also transferred to him, $1000 from his trust account. She continued to pay the monthly amounts through 2015 to 2018 except for rent from May to August of those years. She agreed that rent was not included in the agreement with respect to post-secondary expenses.

[258] In 2016, Mr. Busse was ordered to pay $6,750 towards the school expense.

[259] Ms. Ghent did not believe that H. should contribute to his education expenses, but H. had to apply for an OSAP grant because Mr. Busse would not contribute.

[260] She agreed that support was to be paid for all 12 months but there had been no discussion of what would happen if her son lived away from home during his post-secondary education.

[261] In the summer between years four and five, H. did not work but, instead, stayed in Toronto to work on his thesis with his school group.

Evidence of Mr. Busse

[262] From the productions in the litigation, he is aware that his son worked at Toyota for summer months. From September to April, H. was in Toronto. He is not aware of whether H.’s income went towards his education. Mr. Busse takes the position that H. should have contributed $1,000 towards his annual expenses.

[263] Mr. Busse was not aware of all the details of his son’s post-secondary expenses and income until three days before the trial when it was provided in full by Ms. Ghent. Although he did get some OSAP information ahead of time, some of it was unreadable.

[264] Mr. Busse has taken the various income and expense documents provided by Ms. Ghent and created a chart of H.’s expenses less his loans, grants and bursaries. From that, it appears to Mr. Busse that H. had more income than expenses. Those expenses do not include the cost of residence or food, but Mr. Busse is of the view that his regular child support should cover that.

[265] As set out above, Mr. Busse has also paid a total of $14,250 pursuant to the two interim orders for school expenses. In short, he believes that he has overpaid but is not asking for H. or Ms. Ghent to pay him back.

Analysis

[266] The parties agree that the separation agreement governs. They do not ask to change the percent of contribution based on their current or past income. They ask only whether H. should contribute to his education. Accordingly, I have not summarized much of the evidence related to Ms. Ghent’s contributions to H.’s education.

[267] The interim order of August 2016 did not require H. to contribute to his post-secondary education. The endorsement in support of that order is somewhat unclear; however, the parties agree that I am not bound by that interim order.

[268] The parties’ agreement confirms that the “expenses shall be set pursuant to Section 7 of the Child Support Guidelines,” so the analysis must start there.

[269] The relevant parts of s. 7 of the Guidelines confirm that, in a child support order, the court may provide for an amount to cover all or any portion of expenses for post-secondary education, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child, and the family’s spending pattern prior to the separation.

[270] Section 7(2) confirms that the guiding principle in determining the amount of an expense is that the expense is shared by the spouses in proportion to their respective incomes after the deduction of any contribution from the child from the child. Further, in determining the amount of an expense the court must take into account any subsidies, benefits, or income tax deductions or credits relating to the expense and any eligibility to claim a subsidy, benefit, or income tax deduction or credit relating to the expense.

[271] In Lewi v. Lewi, 2006 CanLII 15446 (Ont. C.A.), the Court of Appeal for Ontario considered the provisions of s. 7, writing at paras. 42-50:

As a general rule, an adult child should be required to make a reasonable and meaningful contribution towards post-secondary education expenses. The amount of that contribution will depend on all of the circumstances but must include a consideration of the "means" of the parents and the children. In such a consideration, it is appropriate to consider income and savings of both the parents and the child. In fairness, when a child has savings that are being looked to for the purpose of determining the amount of his or her contribution, the savings and comparable assets of each of the parents ought also to be considered.

[Citations omitted.]

[272] Accordingly, pursuant to the plain reading of the legislation and the comments of the Court of Appeal, Ms. Ghent’s submission that Mr. Busse should pay on the basis that H. make no contribution to his education is without merit.

[273] In these circumstances, Mr. Busse’s submission that H. should contribute $1,000 per year from his summer employment is reasonable. That contribution would amount to approximately one third to one quarter of H.’s summer employment income; many cases have imputed a higher percentage.

[274] Further, H. was born in 1996. He was over the age of majority through this period of time and, therefore, s. 3(2) of the Guidelines is also applicable. That section reads:

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[275] As set out above, H. is to be credited with obtaining full table support while away at college. The parties have disputed when the child support would come to an end but not whether it should be payable while H. was in school in Toronto. Further, the agreement stipulates that H. is deemed to be living at home throughout.

[276] While many cases vary monthly child support depending on whether the child is at home or at school, in this case, based on the terms of the contract and the arguments of the parties, I start from the basis that H. receives full table support for all 12 months.

[277] Mr. Busse has not asked for any overpayment on this issue to be returned to him. That makes some of the more detailed analysis unnecessary: see Podgorni v. Podgorni, 2010 ONSC 1070; Gillis v. Gillis, 2013 NSSC 251.

[278] Ms. Ghent submits that H.’s student expenses for the fall of 2015 and spring of 2016 were $17,760.52. Ms. Ghent estimates that $10,300 related to rental costs, transportation, food, and laundry. In his interim ruling (2016 ONSC 5282), Emery J. found that those expenses were “living expenses” that were covered by Mr. Busse’s table support. While I am not bound by that interim ruling, I agree with it.

[279] Further, the agreement stipulates that “H. shall be deemed to reside with Cindy while temporarily living away from the residence…” On Ms. Ghent’s view, Mr. Busse would have to pay for two residences for H. That cannot be correct.

[280] Accordingly, I deduct from Ms. Ghent’s claim for 2015/2016 the sum of $10,300. That leaves a s. 7 expense of $7,460.

[281] From that, one would subtract H’s bursaries of $1,882 and his contribution of $1,000 for an expense of $4,578. (H. had student loans of $4,273). That leaves Mr. Busse with a contribution of $3,433.50 and he has already made a payment of $7,500. Mr. Busse has overpaid even though he received a tax credit in 2015.

[282] With respect to the 2016/2017 term, Ms. Ghent submits that the total expense was $18,116.69. It appears that H. had no grants or loans for this year of school, but I have no evidence of why that was the case. As above, I exclude $10,300 for a total expense of $7,816.70. Mr. Busse’s share is $5,862.52. Mr. Busse has already paid $6,750. Mr. Busse has overpaid.

[283] For the 2017/2018 term, the total expenses were $17,534.33. As above, I exclude the sum of $10,300 for an expense of $7,234.33. That year, H. received grants of $9,096. Mr. Busse has paid nothing that year but neither did Ms. Ghent call upon him to do so. They were correct; there was nothing for Mr. Busse to pay.

[284] For the 2018/2019 term, Ms. Ghent submits that H’s total expenses were $16,271.23. From that should be deducted his living expenses and his grants of $8,101 as well as his $1,000 contribution. There is nothing left for either parent to pay. It appears that H. had money left over at the end of the year.

[285] For the final 2019/2020 term, Ms. Ghent submits that his total expenses were $27,969.29. From that should be deducted: his grants of $4,568; living expenses of $20,600; and H.’s contribution of $1,000. That leaves an expense to be shared of $1,801.29, of which Mr. Busse should have paid $1,350.96. In the circumstances, I do not order Mr. Busse to make that payment. He has already overpaid, and Ms. Ghent failed to provide the appropriate information in a timely manner.

[286] Mr. Busse submits that H.’s student loans should also be deducted from the expense. The case law is divided on the how student loans are to be dealt with and appear to be case specific. Here, I need not deal with that issue, but it does seem to me that, given the family’s financial circumstances, had the parties continued their marriage, H. would have likely had to access student loans to complete his full term of courses in any event. That would have reduced the expense for his parents to share: see Mascarenhas v. Mascarenhas (1999), 1999 CanLII 14642 (ON SC), 44 R.F.L. (4th) 131 (Ont. S.C.).

[287] I find that Mr. Busse does not owe Ms. Ghent anything with respect to retroactive s. 7 expenses.

Ms. Ghent’s Claim for a Further Equalization Payment

[288] When Ms. Ghent and Mr. Busse executed their separation agreement both had counsel. Both counsel executed a Certificate of Independent Legal Advice, which was attached to the agreement. Those certificates confirmed that the parties understood the agreement, thought that it was fair and reasonable, were not under any undue influence or duress and were signing voluntarily.

[289] The equalization payment was settled in that agreement. Part of that calculation relied on a value for Mr. Busse’s teachers’ pension. That value was calculated with a retirement date of age 60. Mr. Busse was 55 years of age at the time of his retirement.

[290] Had the agreement presumed a retirement date of 55, Mr. Busse’s pension would have had a higher value. That would have increased the equalization payment to Ms. Ghent. Since the pension was valued at age 60, Ms. Ghent’s equalization payment was lower. She now seeks the difference.

[291] In the alternative, she asks that she receive lump sum spousal support of the same amount.

[292] The following terms of the agreement are of significance:

1.5 Insofar as it is permissible by law, Cindy and Norman wish by this agreement to settle all their rights and obligations arising out of their relations with each other.

10.2 The parties agree that each is entitled to any pension or registered retirement savings plan in his or her name, and each releases any interest which he or she may have in the pension or registered retirement savings plan of the other to the fullest extent possible in law. Without limiting the generality of the forgoing, Norman hereby releases any interest or claim with respect to Cindy’s RRSP and Cindy hereby releases any interest or claim with respect to Norman’s pension with the Ontario Teacher’s Pension Plan (OTPP).

11.6 Norman will pay to Cindy consecutively from his share of the sale proceeds of the matrimonial home on February 15, 2011, the sum of $101,699.68 in full and final satisfaction of all claims to an equalization of Net Family Property.

[293] The agreement also included a standard half page release of all other property claims.

Evidence of Ms. Ghent

[294] Ms. Ghent said that by the net family property statement attached to the agreement, they agreed that Mr. Busse’s pension was worth $246,787 because they contemplated that he would retire at age 60.

[295] She first heard that he was going to retire early in 2019. At that time, Mr. Busse said something about retiring at 55. He also wrote requesting to stop their son’s support.

[296] Ms. Ghent confirmed that she understood the release paragraphs in the agreement. She agrees that there was no failure to disclose financial information by Mr. Busse during the negotiation of the agreement.

[297] She said that they discussed his retirement at four-way meetings. She understood that there was a report that showed different values depending on when he would retire.

[298] Ms. Ghent also called an actuary to testify as to the pension information and values. For reasons set out below, I need not summarize that evidence.

Evidence Ruling

[299] In her re-examination, Ms. Ghent said that it was possible that there were draft documents referring to Mr. Busse working until 60, but she did not recall. Her counsel then attempted to introduce into evidence a draft net family property statement prepared at some point in the negotiations leading to the separation agreement. Mr. Busse objected to that document going into evidence. I agreed that it was not admissible for reasons to be provided within this judgment. These are those reasons.

[300] Ms. Ghent submitted that the document was relevant to clarify the terms of the contract. However, if that were so, the document should have been produced long before that point in the trial.

[301] The parties agreed on their respective documents to be produced in advance of the trial. Counsel for Ms. Ghent had been her counsel at the time of the separation agreement. As a result, it was clear that Ms. Saini could not be a witness at the trial. She had not disclosed her file from the separation agreement negotiations; nor had she requested such disclosure from Mr. Busse and his counsel. Production of such a document, if relevant, should have been produced long before re-examination.

[302] As set out below, the agreement is quite clear; there was no need for such extraneous evidence.

[303] The document is only pages five to nine of a nine-page document. It is dated December 20, 2010 – well before the agreement was signed. As such, it is only a small bit of a potentially larger evidentiary record. If the document were relevant, it would still need to be placed in its full context.

[304] Further, the document was prepared during settlement negotiations. Mr. Busse did not waive his privilege with respect to the document. In the recent case of Phoa v. Ley, 2020 CarswellAlta 894 (C.A.), the Alberta Court of Appeal stated, at paras. 11-24:

Settlement privilege prevents communications being admissible where: (1) there is a litigious dispute in existence or within contemplation; (2) the communication is made with the express or implied intention that it would not be disclosed to the court in the event negotiations fail; and (3) the purpose of the communication is an attempt to effect a settlement..

The rationale underlying settlement privilege was explained in Bellatrix Exploration Ltd v Penn West Petroleum Ltd,:

Settlement privilege is premised on the public policy goal of encouraging the settlement of disputes without the need to resort to litigation. It allows parties to freely discuss and offer terms of settlement in an attempt to reach a compromise. Because an admission of liability is often implicit as part of settlement negotiations, the rule ensures that communications made in the course of settlement negotiations are generally not admitted into evidence. Otherwise, parties would rarely, if ever, enter into settlement negotiations to resolve their legal disputes.

There are exceptions to the privilege when “a competing public interest outweighs the public interest in encouraging settlement”

The “generally recognized exceptions” to settlement privilege were identified in Bellatrix at para 29:

(a) to prevent double recovery;

(b) where the communications are unlawful, containing for example, threats or fraud;

(c) to prove that a settlement (an accord and satisfaction) was reached, or to determine the exact terms of the settlement.

(d) it is possible that the settlement posture of the parties can be relevant to costs.

The exceptions to settlement privilege are to be construed narrowly.

[Citations omitted.]

[305] Here, the document was prepared as part of the negotiations that led to the separation agreement. While not determinative, it is significant that the document is marked “Without Prejudice.” Barring that settlement, the matrimonial issues would have proceeded to litigation – if they were not already started. The document refers to a number of items in issue related to the equalization payment. On that basis, the document is privileged. None of the exceptions were argued and do not appear to be relevant.

[306] Neither party requested that the agreement be set aside; how it was prepared was now irrelevant.

[307] Accordingly, I did not allow the document into evidence.

Evidence of Mr. Busse

[308] In 2010, Mr. Busse hired his lawyer to start the separation process. His lawyer hired an actuary to value his pension and that is dated July 23, 2010. He did not know when he would retire at that time and there is nothing in the agreement to vary the terms related to retirement.

[309] When the house sold, Ms. Ghent received her share of his pension from the sale proceeds. He thought that this was settled by their separation agreement.

[310] Mr. Busse also called an actuary to testify as to the pension information and values. For reasons set out below, I need not summarize that evidence.

Analysis

[311] This issue can be dismissed for a number of reasons.

[312] In Kyle v. Atwell, 2020 ONCA 476, the Court of Appeal for Ontario confirmed that the limitation periods set out in s. 7(3) of the Family Law Act, R.S.O. 1990, c. F.3 are applicable to these circumstances. That section states that an application to equalize net family property shall not be brought two years after the day the marriage is terminated by divorce or six years after the day the spouses separate.

[313] The parties separated in 2009. Their separation agreement was executed in 2011. This relief was claimed in the amended application in 2020. The claim is clearly out of time.

[314] Ms. Ghent took two approaches to the agreement: that it was valid and binding against Mr. Busse and that should be amended for her benefit. In her Reply, Ms. Ghent pleads “The Applicant seeks compliance of the Separation Agreement not to set it aside,” but then goes on to say “The Applicant requests that the provisions pertaining to the equalization of the Respondent’s pension be adjusted….”

[315] Overall, however, there was no attempt to set aside the agreement; only an attempt to have it interpreted as she wished. She did not plead or argue ss. 56(4) or 33(4) of the Family Law Act. Accordingly, the agreement is valid and binding and is not changed.

[316] In that event, the terms of the agreement are clear and are a complete defence to the claim: see The Estate of Denise Joanne Pynenburg et. al. v. Donald Rocan Salkeld, 2020 MBQB 150. I have no doubt that Ms. Ghent would have been astonished to find a claim against her for a recalculation of the equalization payment if Mr. Busse died before receiving his pension or retired much later than 60. Both of those events would have reduced her equalization claim in hindsight. She cannot have it both ways.

[317] I agree with Mr. Busse’s submission that Ms. Ghent cannot invite me “to look under the hood” of the agreement. While the value of the pension was one issue, I note that the net family property statement attached to the agreement provides a nil value to the animals that Ms. Ghent took with her. In her evidence, she said that she accepted less spousal support in return for his greater debt load. All of the pieces came into one agreement. I cannot pick one out without consideration of them all.

[318] Lastly, a judge cannot transfer property in the guise of support: see Davis v. Crawford, 2011 ONCA 294, at para. 29. The alternative claim is dismissed.

Result

[319] Accordingly, to summarize the above, I order:

a) Ms. Ghent’s spousal support shall be fixed at the low end of the ranges set out above commencing February 1, 2016 (the fifth anniversary of the agreement). That amount shall increase to $2,300 as of July 1, 2020 when child support for H. came to an end.

b) Mr. Busse’s spousal support obligation is subject to variation upon a material change in circumstance or upon review pursuant to the parties’ separation agreement.

c) The parties shall provide calculations with respect to any lump sum spousal support arrears based on my income findings for the years 2016 to 2020.

d) The parties may make further submissions on any errors I may have made in my DivorceMate calculations or simple arithmetic.

e) Those written submissions shall be provided within 30 days of this date. Any responding submissions will be provided within 15 days thereafter. Those submissions will include each party’s DivorceMate calculations for each year in issue.

f) Commencing February 1, 2012, Mr. Busse’s child support obligation is varied in accord with his income as found in this judgment and in accord with the Child Support Guidelines. Such child support ceases as of June 30, 2020.

g) Ms. Ghent’s claim for retroactive s. 7 expenses is dismissed.

h) Ms. Ghent’s claim for a further equalization amount is dismissed.

Costs

[320] The determination of costs will need to await the further submissions set out above.

Justice G. D. Lemon

Released: November 24, 2021

COURT FILE NO.: FS-15-452

DATE: 2021 11 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Cynthia Marie Ghent

Applicant

– and –

Norman Harry Busse

Respondent

REASONS FOR JUDGMENT CORRIGENDUM

Justice G.D. Lemon

Released: November 24, 2021