COURT FILE NO.: FC-15-284-1

DATE: 20210726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Barbara Sherman

Applicant

– and –

Michael Donohue

Respondent

Rebecca Rosenstock, for the Applicant

Jonathan Richardson, for the Respondent

HEARD: May 25, 2021 and June 29, 2021

REASONS FOR JUDGMENT on motion to change

Laliberté J.

Introduction

[1] The Court is dealing with a Motion to Change in which both parties are seeking a retroactive and prospective review of the child and spousal support paid by the Respondent, Michael Donohue to the Applicant, Barbara Sherman. The existing provisions of support sought to be varied are set out in the final order of Justice Roger dated September 17, 2015. This order was granted on consent and incorporated the terms of the parties’ June 11, 2015 separation agreement.

[2] On July 10, 2020, the Respondent commenced these proceedings asking the Court to terminate spousal support as of July 1, 2020. However, he has since expanded his position and provided an alternative, namely the reduction of the amount payable as spousal support through the imputation of income to the Applicant in the amount of $28,500.

[3] In her September 3, 2020 Response to Motion to Change, the Applicant opposes the relief sought by the Respondent and asks for the retroactive and ongoing increase of child support in accordance with the Respondent’s income, the maintenance of spousal support and a term whereby she would be able to incur sec. 7 special and extraordinary expenses up to $500 without the Respondent’s prior consent. She also seeks a review of the parenting provisions, but this is not raised in the present hearing.

[4] Properly articulated, the issues to be decided by the Court are as follows:

(1) Should the Court terminate spousal support as of July 1, 2020?

(2) If not, should the Court retroactively and prospectively impute an income of $28,500 to the Applicant?

(3) If income is retroactively imputed to the Applicant thereby resulting in overpayment of spousal support, should such overpayment be credited against the Respondent’s underpayment of child support?

(4) Should the Court make an order abling the Applicant to incur sec. 7 special and extraordinary expenses up to $500 without the Respondent’s prior consent? Should the Respondent be liable for 80% of such expenses?

Facts

[5] Dealing first with the undisputed facts gathered from the material filed, the parties cohabitated for a period of six years from November 2008 to December 2014. The Applicant is presently 50 years old and the Respondent is 42. There are two children of the relationship, namely Alora, born on January 17, 2010 and Ella, born January 27, 2012. While the parties appear to disagree as to the severity and consequences of the children's medical conditions, both agree that Alora was diagnosed with Attention Deficit Hyperactivity Disorder and anxiety and that Ella has Down Syndrome and is delayed. As will be discussed, the discord revolves around the extent of care required to be given to the children and the impact of this on the Applicant's ability to be gainfully employed. Both children attend school on a full-time basis.

[6] The parties had agreed that the Applicant would stay at home following Ella's birth. She has been out of the workforce since then. She had previously worked as a Registered Massage Therapist and aesthetician. According to the Respondent’s undisputed affidavit evidence of November 6, 2020, she earned approximately $46,000 to $55,000 in 2010 and 2011.

[7] The children had remained under the Applicant's primary care since separation with parenting time to the Respondent every second weekend from Friday to Sunday. The Court notes that the child Alora has been resisting parenting time with the Respondent. Ella started school full-time in September 2017.

[8] The Respondent is employed with the federal government. His historical line 150 income is as follows:

2017: $119,000;

2018: $130,120 • includes $1,067. He is required to add to his income by reason of withdrawal of RRSP funds in 2009 to make the down payment under the first-time home buyer’s plan and not having fully repaid the funds in his RRSP;

2019: $138,905 • includes a bonus of $3,461, retroactive pay of $1,416 and RRSP funds;

2020: $140,046 • includes bonus and RRSP funds.

[9] The parties separated on December 17, 2014. All of the issues were resolved through a separation agreement dated June 11, 2015. The terms of the agreement where incorporated on consent in a final order granted on September 17, 2015 by Justice Roger.

[10] The terms of the said order which are relevant to this motion are as follows:

CHILD SUPPORT

21. Beginning on June 1st, 2015, the Respondent will pay to the Applicant $1,648.00 in basic child support for the two children, in accordance with the Guidelines and based on the Respondent’s income of $119,000.

ANNUAL REVIEW OF CHILD SUPPORT

24. To ensure that the child support payments remain commensurate with the Guidelines, the child support payments shall be subject of an annual review and adjustment if necessary, on June 1st of each year, commencing June 1st, 2016. To facilitate this review, the parties shall provide each other with such reasonable evidence of income as may be requested and required by the Guidelines. Upon receipt of this information, the child support payments shall be adjusted forthwith in accordance with the payor’s income and the Guidelines as they may be amended from time to time. The Respondent shall commence paying the new amount of child support as of July 1st of each year.

MATERIAL CHANGE IN CIRCUMSTANCES RELATING TO CHILD SUPPORT

25. Either party may seek a change in child support arrangements if there is a material change in the condition, means, needs or other circumstances of either of them, or of the child, that would affect child support…

26. A material change in the condition, means, needs or other circumstances of the parties or the children may be foreseen or unforeseen, foreseeable or unforeseeable, and may include:

a. a material change in either party’s financial position,

b. a change causing undue hardship for either party or the children,

c. a change in the children’s special or extraordinary expenses,

f. a change in the children’s need for support,

SHARING OF THE CHILDREN’S EXPENSES

30. As long as spousal support is payable for the Applicant by the Respondent, the parties shall share equally any special and extraordinary expense for the children…

31. No special and extraordinary expenses exceeding $100.00 (per expense) shall be incurred by either party without first seeking the other’s consent to the expense in advance of the expense being incurred. Neither party shall unreasonably withhold their consent…

32. The parties shall review their proportionate share contribution to the children's special and extraordinary expenses once the Respondent’s spousal support obligation towards the Applicant is terminated and on an annual basis thereafter.

[11] The order provides that “camps, sports and other recreational activities for the children shall not exceed $1,500.00 per child, per year, unless otherwise agreed to by the parties.”

SPOUSAL SUPPORT

35. Beginning on June 1st, 2015, the Respondent shall pay to the Applicant spousal support of $1,712.00 per month.

36. The amount and duration of spousal support shall be reviewed when one of the following event occurs, whichever comes first:

a. On the second anniversary of the separation agreement dated June 11, 2015;

b. When Ella begins full-time attendance at primary school;

c. When the Applicant becomes employed or resumes self-employed work;

f. When the financial circumstances of either the Applicant, the Respondent, or the children changes significantly.

[12] The Court's understanding is that neither of the parties sought to review the amount and duration of spousal support prior to the commencement of the Motion to Change by the Respondent on July 10, 2020. The Court wasn't provided with any indication that attempts were made to resolve the issue of spousal support through the dispute resolution process set out in the separation agreement and ultimately, in Justice Roger’s order.

[13] The Court also understands that neither party provided the other “with such reasonable evidence of income as may be requested and required by the Guidelines” as mandated in the separation agreement and said final order. The only evidence of the Respondent’s income having been raised was marked as Exhibit F to the Applicant’s December 29, 2020, sworn affidavit. The Exhibit consists of the following email exchanges between the parties:

November 20, 2018

Respondent: “Barb, as I mentioned I started a new job last week at Agriculture Canada. Here is my contact info at my new office… I also have an admin assistant. Her name is… she can be reached at… Michael.”

Applicant: “Hi Michael, Thank you for the updated information. Congratulations on your new position! I wish you all the best. I will let you tell our girls. I am sure Alora will be excited for you as well. Do you have a different title now? I hope they made you a Director! Have a good day, Barbara”

Respondent: “Thanks. I have a new title now and more staff. But I don’t actually get any more money. Yes, I’m a Director now. But I’m a bottom level Director, which means I get paid the same as a top level economist which is what I was before.

Still, the title will look good on my resume.

Michael.”

[14] The evidence is that the Respondent has been paying the Applicant spousal support in the amount of $1,712 per month since June 1, 2015.

[15] It is also uncontested that the Respondent has been paying child support in the amount of $1,648 per month since June 1, 2015. He acknowledges that he has not paid child support in accordance with his income and as such, has under paid as follows:

2018: Should have paid $1,827 but paid $1,648; results in a $2,148 underpayment;

2019: Should have paid $1,934 but paid $1,648; results in a $3,432 underpayment;

2020: Should have paid $1,960 but paid $1648; results in a $3,744 underpayment;

2021 (January to August): Should have paid $1,932 but paid $1,648; results in a $1,988 underpayment.

[16] So that the Respondent has underpaid child support in the amount of $11,312 from 2018 to August 2021.

[17] Dealing now with the disputed facts, these revolve mainly around the Applicant’s and the children's health and how this impacts on her ability to be gainfully employed.

[18] The Respondent’s evidence with respect to the Applicant's ability to work is found in his November 16, 2020 and June 18, 2021 sworn affidavits and can be summarized as follows:

Respondent’s November 16, 2020 affidavit

• As far as he knows, she has made no efforts to date to resume employment;
• She is an educated and talented woman; she has a Bachelor of Arts degree and is certified as a Registered Massage Therapist;
• She has a fairly long work history;
• He believes she has every capacity of working at a full-time minimum wage job and earn an annual income of $28,500; she is capable of earning more than a full-time minimum wage position; she is fully capable of being employed back to 2018.

Respondent’s June 18, 2021 affidavit

• There is no objective evidence or medical reports to suggest her claim, it is mostly based on her beliefs;
• She has never added “depression” to her initial list and provides no evidence in support;
• COVID-19 is no longer a concern since she has received, to his knowledge, her first dose and perhaps a second; her evidence is limited to one sentence from her family doctor indicating that she is at a higher risk due to asthma.

[19] The Applicant's evidence on this subject matter is found in her December 29, 2020 and June 7, 2021 sworn affidavits which can be summarized as follows:

Applicant’s December 29, 2020 affidavit

• Most of her prior career paths are no longer viable options, due to the following medical conditions, namely Fibromyalgia, arthritis and Carpal tunnel injury on both wrists; this is confirmed by her doctor, P. Cain, in a October 9, 2020 letter;
• She has not been able to search for employment in any viable opportunities since March 2020, by reason of the COVID-19 situation;
• She has been investigating a new career path that would require schooling but this is not viable during the COVID-19 crisis and there is enough support at home for Ella and Alora.

Applicant’s June 7, 2021 affidavit

• Her health issues include Fibromyalgia, arthritis, Carpal tunnel on both wrists, asthma and depression;
• She provided a letter from her doctor, P. Cain MD, dated February 19, 2021, indicating that she “cannot work due to COVID-19 concerns” and that she is at risk with moderate asthma. The doctor refers to the two children being at risk; the child Alora by reason of Asthma and the other child by reason of the Down Syndrome which is a “very high risk for COVID complications”;
• She cannot work as a massage therapist due to her physical ailments;
• She has experienced various periods of depressive moods; she battles emotional issues as her children's needs are sometimes difficult to deal with and she struggles and feels for the difficulties they face on a daily basis;
• She wishes to work eventually but would require more schooling as she has been investigating new career paths.

[20] With respect to the Children's health and how this impacts on the Applicant's ability to work, the Court notes the following evidence of the parties in their affidavits:

Respondent’s November 16, 2020 affidavit

• The child Ella suffers from Down Syndrome and is profoundly delayed;
• Both children are in school and while Ella has medical appointments, these are well known in advance and last for approximately 30 minutes; he is also able to take Ella to her appointments but these are booked by the Applicant without consulting him and refuses that he attend;
• The child Alora has been diagnosed with Attention Deficit Hyperactivity Disorder and Anxiety; these mental health issues in no way preclude the Applicant from working full time;
• The children's school offers a before-care/after-care program in which the children could be enrolled if the Applicant was working full-time.

Respondent’s June 18, 2021 affidavit

• The Applicant is contradicted by the medical records she has attached to her June 7, 2021 affidavit; she refers to what she was told by medical professionals without any supporting documentation or evidence;
• He does not deny that the child Alora has health and mental health concerns; he has never been provided with a copy of the “ADHD management plan” raised by the Applicant which allegedly requires close overseeing at most times of the day; he states that the Applicant's assertion that Alora requires close supervision is contradicted by medical reports attached to her June 7, 2021 affidavit, namely tab C (2018 report of Dr. Gillis), tab D (2018 report of Dr. Babsh);
• The health experts have expressed the importance of Alora attending school; a copy of Dr. Gray's recommendations in his February 2, 2021 report is provided; he states the following: “As much as possible, Alora should remain at school even if she is very anxious and with school supports to help her manage her anxieties”;
• It is untrue to claim that Alora refused to attend school while at CHEO;
• The discharge summary from CHEO states that in-person school attendance is ideal for Alora; it was agreed that there should be a transition plan which provides for virtual school from the mother’s home until March 5, 2021 and virtual school from an office at school; a meeting would be held thereafter to identify the next step; the Applicant refused to follow through with the plan and maintains that Alora will not return to in-person school but may do so in September;
• He is not aware of any doctor having, at anytime in the last four years, suggested that it would be better for Alora to be at home instead of at school; all of the medical recommendations favor Alora being in school full-time;
• As for the child Ella, she has an educational assistant for support when she attends school; this assistant changes her diapers, changes her clothes and washes her;
• He has never been made aware that Ella tries to run away from school as alleged by the Respondent;
• He has never been made aware that Ella chokes on her food, resulting in vomiting and needing to be sent home from school; the Applicant was making such allegations in her previous school but he provides an email exchange with a therapist who states: “… I will ask her to monitor her today and let me know if she sees anything, however when I asked her about previous days she said she hasn’t seen anything apart from coughing occasionally but not a choking cough…”;
• He has never been told that Ella throws items regularly or throws tantrums; this has never been mentioned in any school report cards;
• Ella is capable of playing by herself when she attends his home.

[21] According to the Respondent, there is therefore no reason both children cannot attend school full time.

Applicant’s December 29, 2020 affidavit

• The child Ella is challenged by reasons of her Down Syndrome and medical conditions; this includes: • Incontinence (bladder and bowel); if all spare clothes are soiled, she gets called by the school for immediate pick-up; • Developmental, cognitive delays, fine motor skills delay and significant verbal communications delay; • Behavioural issues.
• The Respondent has not permitted assessments of Ella which would have allowed for a placement into a special needs classroom and offered her more support; this has resulted in the child being behind in her development and is impacting her ability to achieve her full potential and independence in life;
• Alora suffers from ADHD, anxiety and dyslexia;
• Alora would have severe panic attacks before arriving at school and/or could not function at school;
• Alora was seen on November 25, 2020 at CHEO Crisis Centre for suicidal idealization.

Applicant’s June 7, 2021 affidavit

• The child Alora is diagnosed with ADHD, Generalized anxiety disorder and Dyslexia; she also has mental health issues, including depression, suicidal ideations and has attempted suicidal actions; professionals believe that she has outstanding undiagnosed issues such as Oppositional Defiance Disorder and sensory processing disorders;
• Alora's ADHD symptoms are very visible: • She has an extreme resistance to almost every task; • She has extreme difficulty waking up in the morning and being able to concentrate; • She requires to be closely monitored throughout the day; • If not tended to, she will simply lie on the couch all day and listen to music; • She doesn't want to take showers, groom herself, change her clothing or tend to her hygiene; the Applicant must constantly work with her to complete basic day-to-day tasks; • She is not engaging in school; school is causing her much anxiety, mood swings, rage and imbalance; • Her ADHD diagnosis is severe.
• Her Dyslexia causes her to be impatient and to struggle academically; she has difficulty socializing with her peers;
• Alora's anxiety, mood disorders and depression have significant impact on her, including: • She is not easy to manage; it is a constant effort for her to complete the slightest task without negotiation, defiance or argumentation; • Her sister Ella is a trigger to her; • She becomes enraged and destroys objects in the home; • She has recently stabbed a pizza box and other items in the home using a knife; • On November 25, 2020, she was brought to the Crisis Centre at CHEO since she said she would kill herself and run away; the report is attached to her affidavit; • On February 1, 2021, she tried to hang herself; the Applicant saw marks on her neck; the CHEO report is attached to her affidavit; she remained at the CHEO for 15 days; • The team at school is ready to provide her with support but she refuses to return to school.
• When Alora was in school, the Applicant was required to pick her up on a regular basis as she was throwing up, was non-compliant, anxious and unable to function;
• She suffers from migraines and various issues such as panic attacks, stomach aches, headaches, vomiting and feeling ill; she also has asthma;
• The child Ella has special needs as she is diagnosed with Down Syndrome Disorder, has various medical conditions such as incontinence (bowel and bladder), developmental delays and behavioral issues;
• She is still in diapers and has minimal communications;
• It is common for Ella to be unable to remain at school since she soiled herself;
• Ella has attempted to run away from school;
• Ella has a condition called Complete Tracheal Rings which may result in not being able to breathe or clear fluids;
• Her fine motor skills are underdeveloped; she can't use zippers or buttons and requires assistance with getting dressed;
• She is extremely verbally delayed and speaks at a 3-4 year old level;
• She cannot be left alone for a minute; she has started fires, she writes all over herself and the walls, floods toilets; she has harmed the dog and will sometimes just leave the home; there is a lock on her bedroom for security purposes so that she does not leave the home, cause destruction or injure herself;
• She has no friends in her life; She cannot relate to children her age.

[22] With respect to the sec. 7 expenses, the Court notes that the Applicant’s position has changed through the proceedings. As noted at the outset, the relief sought in her September 3, 2020 Response to Motion to Change was to allow her to incur such expenses up to $500 without the Respondent’s prior consent. She was also seeking the payment of sec. 7 arrears by the Respondent.

[23] The Court is now being asked to order the following:

• That the proportionate share be set at 80/20 with the Respondent paying the highest share;
• That the amount of $2,000 per year be set for each child for camp fees during the summer;
• She is foregoing arrears in sec. 7 expenses.

[24] The Respondent’s position is that he has no problem paying for sec.7 expenses as long as he is consulted, and they are appropriate for the children. He has always paid for swimming lessons, day-camps, art programs and theater programs.

[25] He objects paying for expenses on which he is not consulted and are inappropriate for the children or which they cannot afford such as horseback riding. His counsel noted in submissions that he opposes any changes to the sec. 7 expenses provision in the final order as there is no material change in circumstances.

The Law

[26] In deciding this matter, the Court is guided by the following principles:

A) Family Law Act

Sec. 30: Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

Sec. 33(8): An order for the support of a spouse should, (a) Recognize the spouse’s contribution to the relationship and economic consequences of the relationship for the spouse; (b) Share the economic burden of child support equitably; (c) Make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) Relieve financial hardship, if this has not been done by order under Parts I (Family Property) and II (Matrimonial Home).

Sec. 33(9): In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (a) The dependant’s and respondent’s current assets and means; (b) The assets and means that the dependant and respondent are likely to have in the future; (c) The dependant’s capacity to contribute to his or her own support; (d) The respondent’s capacity to provide support; (e) The dependant’s and respondent’s age and physical and mental health; (f) The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take these measures; (h) Any legal obligation of the respondent or dependant to provide support for another person; (i) The desirability of the dependant or respondent remaining at home to care for a child; (j) A contribution by the dependant to the realization of the respondent’s career potential; (k) repealed (l) If the dependent is a spouse, i. The length of time the dependant and respondent cohabitated. ii. The effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, v. Any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (v.1) repealed vi. The effect on the spouse’s earnings and career development of the responsibility of caring for a child ; and (m) Any other legal right of the dependant to support, other than out of public money.

B) Entitlement to Spousal Support

1. Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420

[15]…the law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory. These three bases of support flow from the controlling statutory provisions and the relevant case law, and more broadly animated by differing philosophies and theories of marriage and marital breakdown.

2. Thompson v. Thompson, 2013 ONSC 5500

[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse… a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage…

C) Amount and Duration of Spousal Support

1. Fisher v. Fisher, 2008 ONCA 11

[83] This assessment must be completed in the context of the legal principles carefully reviewed by the trial judge, including the factors relevant to whether support should be indefinite or limited-term.

[84] The factors and objectives require a balancing of the parties' circumstances, including the duration of the parties' cohabitation, their ages, their incomes and prospective incomes, the effects of equalization, the stages of their careers, contributions to the marital standard of living, participation in household responsibilities, the absence of child-care obligations, the respondent's increased cost of living arising from his new employment, the parties' reasonable expectations, the respondent's rapid pre- and post-separation increases in income, the appellant's limited claim for compensatory support and her greater need for transitional support.

D) Imputation of Income

1. The principles that apply in determining whether to impute income are the same in both child and spousal support cases.

• see: Crowe v. McIntyre, 2014 ONSC 7106

2. Sec. 19 – Child Support Guidelines

Sec. 19(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) The parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent of spouse;

2. Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. no 3731 (Ont. C.A.)

• The relevant principles set out by the Court of Appeal in Drygala v. Pauli can be summarized as follows: • The first question which the court must address in deciding whether to impute income pursuant to sec. 19(1)(a) is whether the spouse is intentionally under-employed or unemployed; the court must consider the party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities; • A finding of deliberate under-employment or unemployment does not require evidence of bad faith; a party is intentionally unemployed when they choose not to work when capable of earning an income; • Even if it is determined that the party is deliberately under-employed or unemployed, the court has the discretion to decide whether or not income should be imputed; this decision will turn on the court’s overall assessment of the reasonableness of the party’s decisions and actions in relation to their income; • The onus is on the party seeking imputation of income to establish intentional under-employment or unemployment; if this hurdle is crossed, the court must turn to the question of whether the under-employment or unemployment falls within the exceptions set out in sec. 19(1)(a); the party against who imputation is sought bears the onus of showing that falls within an exception; • In determining the amount of income to impute on the basis of deliberate under-employment or unemployment, the court must consider what is reasonable in the circumstances of the particular case.

DISCUSSION

1. Should the Court terminate spousal support as of July 1, 2020?

[27] The Respondent's primary position in this matter is that the Court should terminate spousal support as of July 1, 2020.

[28] This issue revolves around the Applicant's prospective entitlement to spousal support following July 1, 2020. Having considered the circumstances and relevant principles the Court is of the view that her entitlement to ongoing support should be maintained on both compensatory and non-compensatory bases.

[29] This finding is based on the following considerations :

(i) Fundamental to the Court’s finding is the effect on the Applicant's earning capacity of the responsibilities she assumed during cohabitation and the responsibility of caring for the children. As noted by the Respondent in his affidavit evidence, the Applicant was earning $46,000 to $55,000 in 2010 and 2011. He describes her as an educated and talented woman.

Following Ella's birth in 2012, it was agreed that the Applicant would stay home and leave the workforce. The logical inference is that she would stay home in order to care for the children. There is no question that the child Ella had special needs and that the child Alora was still fairly young.

So that the Applicant having left the workforce is grounded on an agreement between the parties while they were cohabitating. In turn, the Respondent remained employed with the federal government.

This arrangement which excluded the Applicant from the workforce was maintained during the rest of the cohabitation which came to an end in December 2014.

Following the separation, it was agreed that the children would remain in the Applicant's primary care with parenting time to the Respondent every second weekend from Friday to Sunday. This again vested the Applicant with the main responsibility of caring for the children.

This has remained true since separation. The Applicant is still the primary caregiver for the children. The care needed for the two children has been historically compounded and continues to be so by reason of the children's special needs as will be discussed later. Much to his credit, the Respondent’s career with the federal government has continued to flourish.

The continued payment of spousal support by the Respondent to the Applicant is found to be part of an equitable distribution between them of the economic consequences of the marriage.

(ii) The present reality is that the Applicant remains outside of the workforce and, as such, is not self-sufficient. She is unable, on her own, to maintain her basic needs and a reasonable standard of living.

While the Court is mindful that the reasonable expectation is that she should have strived and continue to strive towards self-sufficiency, her inability to do so is found to be rooted in the nature of the parties’ relationship during cohabitation and their mutual decision that she would leave the workforce in 2012 and care for the children. This decision would inevitably heighten her financial dependency on the Respondent during cohabitation. Her income was reduced from $46,000- $55,000 to nil in 2012. Her dependency was extended post-separation and remained unchallenged until July 10, 2020, when the Respondent commenced this Motion to Change. Her present reality is that she is 50 years old and outside of the workforce for close to 10 years.

In contrast, the Respondent's income with the federal government has increased steadily through the years and he has shown to have the means to provide support to the Applicant.

The Applicant's continued need for spousal support is also grounded on her medical ailments and the children's significant special needs. These are found to impact on her present ability to be employed and become self-sufficient.

While the significance of these are challenged by the Respondent, the Court finds that the Applicant has shown, on a balance of probabilities, that she has been subject of a number of medical conditions, namely Fibromyalgia, arthritis, Carpal tunnel on both wrists, asthma and depression. Save for depression, these are confirmed in her medical doctor’s reports. Dr. Cain has also confirmed that she is unable to work by reason of her asthma and the risks associated to the COVID-19 pandemic. He also raises related concerns for the children being exposed to COVID-19. He speaks of a very high risk for COVID complications for the child Ella by reason of her Down Syndrome.

With respect to depression, the Court notes that there is no report confirming same. However, in one of the reports filed, the Applicant refers to Zoloft which is used to treat depression. The Court also notes her sworn evidence on how she has experienced various periods of depressive moods and battles emotional issues in dealing with the children's needs. Such impact on her is not an unreasonable proposition and is supported by common sense and life experience. She remains the primary caregiver for the two high need children of the marriage. The Court also notes that the November 26, 2020 CHEO report raises the probability that the Applicant has been trying to support the child Alora for several years with longstanding mood struggle and “may be experiencing caregiver burnout” (page 8).

A good part of the Applicant's need for continuing spousal support is linked to the level of care she is required to give to both children.

The Court finds that the evidence establishes that the children's special needs are mostly unpredictable and not easily manageable. They are not restricted to a set period of time during the day. Collectively, these children require near full-time commitment which transcends beyond school hours.

The medical reports filed by the Applicant which cover the period from 2017 to 2021, disclose longstanding and severe mental health issues with the child Alora. The common themes in these reports are suicidal ideations, anxiety disorder, mood dysregulation, temper tantrums, depression and difficulties following through on tasks. On February 1, 2021, she followed through with her suicidal ideations and tried to hang herself.

With respect to the child Ella, the evidence shows that she has Down Syndrome and various medical conditions. She is very delayed and requires constant supervision. This is reinforced by the Respondent’s own evidence that Ella has an educational assistant for support when she attends school.

It is not reasonable nor realistic to expect that the Applicant can manage full-time employment as sought by the Respondent over and above her present responsibilities with the two children. All of this in the context of having been out of the workforce for close to 10 years.

[30] The Court's view in the present matter finds support in the Spousal Support Advisory Guidelines. One of the exceptions noted in Chapter 12 to the formula ranges in cases where these seem to produce intuitively “wrong” outcomes for amount or duration as identified as “special needs of child” and is explained as follows:

A child with special needs can raise issues of both amount and duration of spousal support issues that often, but not always, be accommodated within the ranges. In some cases, the duration of spousal support may have to be increased above the upper end of the range.

[31] Support is also found in the following cases which deal with the interaction between spousal support and special needs of children:

• Andrews v. Andrews, [1990] O.J. no 3578 (Ont. C.A.)
• Brophy v. Brophy, 2004 25419 (ON CA), [2004] O.J. no 17 (Ont. C.A.)
• Ruffalo v. David, 2012 ONCA 698
• Rémillard v. Rémillard, 2014 MBCA 101

(iii) While subject to review, the Applicant’s entitlement is also grounded on a contractual basis. The June 11, 2015 separation agreement which was incorporated in the consent final order of Justice Roger dated September 17, 2015 provides for the payment of $1,712 per month beginning June 1, 2015. This is the amount claimed by the Applicant in these proceedings.

[32] For the reasons set out herein, the Court's ruling is that spousal support should not be terminated as of July 1, 2020 as claimed by the Respondent.

2. Should the Court retroactively and prospectively impute an income of $28,500 to the Applicant?

[33] The Respondent's claim is that the Court impute the yearly income of $28,500 to the Applicant as of 2018. This amount is based on the present yearly minimum wage.

[34] The Court is of the view that the circumstances are such that it is not appropriate to impute the income sought by the Respondent. The essence of the Court's decision on this issue is that it has not been shown, on the whole of the evidence, that the Applicant is intentionally unemployed. The Court rejects the suggestion that she is choosing not to work when capable of doing so. Her ability to earn an income as of 2018 cannot be looked at in a vacuum. It must be assessed in the context of the circumstances discussed earlier in these reasons on the issue of entitlement based on her needs for spousal support. Specifically:

• She has been out of the workforce for a period nearing 10 years;
• She has been financially dependent on the respondent since 2012 when she left the workforce as agreed upon by the parties;
• According to the evidence provided in this motion, the Respondent did not challenge spousal support until July 10, 2020 through this Motion to Change;
• The Applicant's documented medical conditions;
• The children's collective special needs which require near full-time commitment;
• She is providing the majority of the care to the children as the Respondent’s parenting is every second weekend from Friday to Sunday; it is noted that there has been limited parenting of the child Alora by the Respondent during the last few years as she refuses to have contact with him; he indicates in his affidavit that things had improved recently.

[35] In the end, the Applicant’s unemployment is found to be required by the special needs of the children and her health. As noted earlier, it is not reasonable nor realistic to expect that the Applicant can manage full-time employment over and above her present responsibilities with the children.

[36] There is much uncertainty as to if and when the Applicant's commitment to the care of the children will diminish to a level allowing her to rejoin the workforce. There is no question that she must reasonably strive towards being able to contribute to her own support. However, the Court cannot objectively foresee at this time, based on the evidentiary record, when this time will come. The true measure is the care needed to be given to the children.

[37] The general wisdom in the jurisprudence is that set review dates should be avoided by the Court. Such orders are generally discouraged and should be the exception, not the norm.

• See: Fisher v. Fisher, 2008 ONCA 11
• Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. no 25
• Choquette v. Choquette, 1998 5760 (ON CA), [1998] O.J. no 3024, (Ont. C.A.)
• Arnaud v. Chiddenton, 2014 ONSC 5615

[38] The preferred route is a Motion to Change based on a material change in circumstances. In doing so, the Court is following the trial judge’s reasoning in Brophy v. Brophy, op.cit., which was approved by the Ontario Court of Appeal, at paragraph 28:

[28] The trial judge did, however, acknowledge that a time will come when Mrs. Brophy will be expected to work part-time. When that time comes Mr. Brophy can apply to vary spousal support:

The promotion of self-sufficiency is “in so far” as practicable an objective of spousal support... Part time employment for Mrs. Brophy in the future, once the demands of her family have diminished, is indeed expected of her. The matter can always be reviewed by the court at that time. Needless to say, if there is ever a material change in either of the parties’ circumstances, a motion to change may be brought.

[29] The trial judge’s findings are reasonable and fully supported by the evidence at trial. The trial judge was correct in not imputing any income to Mrs Brophy.

[39] The Court will therefore not retroactively and prospectively impute an income of $28,500 to the Applicant.

[40] The end result is that there is no overpayment of spousal support to be credited against the Respondent’s underpayment of child support from 2018 to August 2021 in the amount of $11,312.

[41] The Respondent is therefore ordered to pay the Applicant child support arrears in the amount of $11,312. He is given until January 31, 2022 to pay same.

Should the Court make an order abling the Applicant to incur sec. 7 special and extraordinary expenses up to $500 without the Respondent’s consent? Should the Respondent be liable for 80% of such expenses?

[42] The Court is of the view that there is no material change in circumstances warranting a review of the terms set out in the parties’ agreement which forms part of Justice Roger’s final order dated September 17, 2015.

[43] As it stands, this is a shared decision-making parental regime with both parents having a say in significant decisions. The Court understands that this is subject of litigation but until there is a change, if there is one, both parents should have a say in accordance with the existing order.

[44] With respect to the issue of each party's proportionate share of the sec. 7 expenses, the Court finds that this should remain at 50/50, again as per the final order in place. There is no material change in circumstances justifying the relief sought by the Applicant.

Conclusion

[45] For the reasons set out in this judgment, the Court makes the following orders:

(1) The Respondent shall continue to pay the Applicant spousal support in the monthly amount of $1,712 as per Justice Roger’s final order dated September 17, 2015. This is set for an indefinite period of time but may be reviewed on the basis of a material change in circumstances as discussed in these reasons.

(2) The Respondent shall pay the Applicant child support arrears in the amount of $11,312 for the period of 2018 to August, 2021. These shall be paid on or before January 31, 2022.

(3) The terms governing sec. 7 special and extraordinary expenses shall remain as per Justice Roger’s said final order of September 17, 2015.

[46] The parties are asked to try and resolve the question of costs for this Motion. If unable to do so, both parties are to file brief written submissions not to exceed three pages together with their respective Bill of Costs, on or before August 27, 2021.

Released: July 26, 2021

COURT FILE NO.: FC-15-284-1

DATE: 20210726

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Barbara Sherman

Applicant

– and –

Michael Donohue

Respondent

REASONS FOR JUDGMENT on motion to change

Laliberté J.

Released: July 26, 2021