Court File and Parties

COURT FILE NO.: FS-20-16486-0000

DATE: 20210129

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Linda Jane Roberts, Applicant

AND:

Frank D’Amico, Respondent

BEFORE: Kimmel J.

COUNSEL: John G. Cox, for the Applicant/Responding Party

Cheryl Goldhart, for the Respondent/Moving Party

HEARD: January 21, 2021

ENDORSEMENT

[1] The respondent, Frank D’Amico, seeks in this proceeding to change his spousal support obligations under the consent order of Miller J., made July 3, 2018 (the “Support Order”). He seeks by this motion a without prejudice temporary-temporary change order pending the final adjudication of the issues raised.

[2] Mr. D’Amico is a senior pilot with Air Canada. He seeks to reduce his monthly spousal support obligations as a result of the effects of the COVID-19 pandemic on the airline industry and, in turn, on his employment. The Support Order requires him to pay $10,283.00 per month in spousal support, calculated based on his then agreed annual income of $300,000.00 and the respondent’s then agreed annual income of $53,000.00.

[3] The Support Order provides that the spousal support obligation is “fixed and non-variable” and can only be reviewed if there is a “catastrophic change in circumstances in the respondent’s employment, including the respondent’s termination from Air Canada, or the respondent failing the Air Canada medical examination.”

[4] Mr. D’Amico claims that the COVID-19 pandemic has been catastrophic to the airline industry generally, to his employer Air Canada, and to his circumstances of employment specifically. He claims to have suffered a material reduction in his employment income and seeks a corresponding adjustment in his support obligations. I am satisfied that a without prejudice temporary, temporary order reducing Mr. D’Amico’s monthly spousal support obligations is appropriate in the circumstances, but I have concluded that the amount of the reduction should be less than he has asked for at this time.

Background

[5] The Support Order was based on Minutes of Settlement that were entered into after acrimonious litigation. The acrimony between the parties continues.

[6] After attending two case conferences before Moore J., the respondent’s motion for a without prejudice, temporary-temporary reduction in his spousal support obligation came on for a hearing before Akbarali J. on June 9, 2020. At that time, the respondent was projecting that based on a Memorandum of Agreement (“MOA”) entered into on March 24, 2020 between Air Canada and its pilots’ union, his annualized income would be reduced effective May 1, 2020 to $185,000.00 based on a projected 55 hours of flying time per month, with some prospect for the hours to increase after June. That MOA expired at the end of September and it was anticipated that there would be further negotiations and a further MOA.

[7] In June of 2020, Akbarali J. concluded that the significant uncertainty that existed about how the respondent’s income would be affected over 2020 rendered the motion premature because she was not in a position to assess whether the respondent had a strong prima facie case for variation at that time. She accordingly adjourned the respondent’s motion until after the next round of negotiations between Air Canada and the pilots’ union when a new MOA had been entered into. It was thought that this would allow for greater certainty about the respondent’s 2020 income and possibly more information about his income prospects going forward. Certain disclosure was also ordered by Akbarali J. about the applicant’s business and her annual income, which was thought might also be relevant to the issues to be decided on the motion. That disclosure has been made.

[8] A second MOA was entered into that became effective on October 1, 2020, which did increase the monthly block hours for senior pilots such as the respondent from a minimum of 55 to a minimum of 63 (with a corresponding increase in his annualized income). The second MOA is set to expire in March of 2021, and it is again expected that there will be another round of negotiations between Air Canada and the pilots’ union and another MOA.

[9] The respondent’s 2020 income is now ascertainable. The applicant contends that the outcome was not as dire as the respondent had predicted back in June of 2020, although the parties continue to disagree about certain inclusions in, and exclusions from, the respondent’s income that lead to different final income numbers. The applicant argues that the parties and the court are in basically the same position today than they were in June 2020 when the matter first came before Justice Akbarali, in that there is expected to be another round of negotiations and another MOA and that it is not known whether the respondent’s income levels will improve.

[10] While there is some continuing uncertainty, much more is generally known and appreciated about the COVID-19 pandemic, its persistence and implications. Justice Akbarali had no difficulty concluding that the COVID-19 pandemic was a catastrophic event for the airline industry. She said that whether it was a catastrophic event for the respondent remained an open question, that she anticipated could be informed by knowing what would happen to his income over the course of 2020. We now have that information.

The Test for an Interim Variation of the Support Order

[11] The parties agree that the test to be applied on this motion is that laid down in Berta v. Berta, 2019 ONSC 505, at para. 40, where it was held that, to make an interim order varying a final support order, the court must be satisfied that:

a. There is a strong prima facie case for variation;

b. There must be hardship;

c. There must be urgency; and

d. The moving party has come to court with clean hands.

[12] I will consider each of these requirements in turn.

a) Is There a Strong Prima Facie Case for Variation of the Support Order?

a. Has there been a catastrophic change in the respondent’s circumstances of employment?

[13] This case is different from the typical motion to change in that the Support Order specifies that the agreed upon fixed and non-variable spousal support obligation can only be reviewed if there is a “catastrophic change in circumstances in the respondent’s employment.”

[14] The respondent must demonstrate a strong prima facie case that there has been a catastrophic change in the circumstances of his employment with Air Canada as a result of the COVID-19 pandemic. The applicant says he has not done so. He continues to have job security and seniority. He has income earning potential at pre-pandemic levels and he is only temporarily suffering a reduction in his income (which the applicant also argues is not material, in any event).

[15] The Support Order does not require the respondent to have lost, or be at risk of losing, his job with Air Canada to suffer a catastrophic change in the circumstances of his employment.

[16] No one can say when the airline industry will recover from the COVID-19 pandemic and drastic reduction in air travel. Air travel remains suppressed and the vaccine roll-out projections extend at least to the end of 2021 if not beyond for Canada and other countries where Air Canada flies. The fact that Air Canada and the union are only prepared to negotiate in six month intervals is indicative of the future uncertainty. After ten months, it would not be a big leap to consider the drastic reduction in air travel and devastating effects that the pandemic has had on the airline industry and Air Canada to be a catastrophic change in the employment circumstances of the pilots of the grounded airplanes. The respondent has satisfied me that he has a strong prima facie case on this threshold question.

b. Material change in condition, means needs or other circumstances?

[17] While a catastrophic change in the respondent’s employment circumstances could also lead to a material change in his condition, means or other circumstances, that will not necessarily be the case in every instance. For example, the Support Order expressly contemplates that if the respondent failed the Air Canada’s medical examination that would be a catastrophic change in his employment circumstances. That would not necessarily mean that his income would be materially reduced as that would depend on his alternative job prospects at the time, within or outside of Air Canada.

[18] The applicant challenges the materiality of the respondent’s income reduction in the circumstances of this case. I agree that, beyond demonstrating a strong prima facie case that there has been a catastrophic change in his employment circumstances, the respondent must still demonstrate a strong prima facie case for varying the Support Order based on the usual criteria. Section 17(4.1) of the Divorce Act, R.S.C. 1985, c.3 ( 2nd Supp.) requires that:

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

[19] The parties referred in passing to the cases of Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 and Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, both of which were, in turn, considered in the leading authority in this area from the Supreme Court of Canada : L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. In that decision (at paras. 29-39 and 44), the following guidance is provided that is relevant to this case:

a) The onus is on the moving party (respondent in this case) to establish that there has been a change in the “conditions, means, needs or other circumstances of either former spouse since the making of the [Payment Order].”

b) The identfied change must be material, meaning that “if known at the time, [it] would likely have resulted in different terms.”

c) A material change must have some degree of continuity, and not merely be a temporary set of circumstances.

d) What amounts to a material change will depend on the actual circumstances of the parties at the time the Support Order was made.

e) The approach is the same whether the support order was adjudicated or the result of an agreement: deference should be given to the prior support order in both circumstances, it being presumed that it was determined to have been in compliance with the support objectives of the Divorce Act when it was made.

f) A support order may expressly contemplate and provide for a particular set of circumstances and that may inform the analysis of whether those circumstances constitute

a material change.

g) If the matter that is relied upon as constituting a material change was known at the time of the [Support Order], it cannot be relied upon as a basis for variation.

[20] The Support Order, made in July 2018, clearly states that the monthly support payable by the respondent to the applicant of $10,283.00 was based on an annual income of $300,000.00 attributed to the respondent and an annual income of $53,000.00 attributed to the applicant. Although the Separation Agreement and Support Order do not state or refer to the basis upon which the spousal support was calculated, the respondent has provided the DivorceMate calculation that illustrates that, based on the income attributed to each spouse at the time, this amount of support corresponds with a 50% sharing of the parties’ Net Disposable Earnings (“NDI”).

[21] The respondent contends that he has made out a strong prima facie case that there has been a material change in his condition, means and circumstances since the Support Order because of his reduced income and earning capacity in 2020 that he anticipates will continue for the foreseeable future, due to the COVID-19 pandemic and its negative impacts on airline travel. There is no suggestion that this could have been foreseen at the time of the Support Order.

[22] The parties do not agree on what the respondent’s income and earning capacity was in 2020 or what it can reasonably be expected to be in 2021.

The Respondent’s Approach and Assumptions

[23] The respondent uses an “annualized” income number for 2020 of $185,000.00 at the low end and $212,000.00 at the high end, based on the guaranteed hours of flying time under each of the MOAs. The higher estimated annualized income begins under the October MOA and is based on the guaranteed 63 hours at his average rate of $280.35. These 63 hours translate to an annual amortized gross income of approximately $211,944,69, which is calculated as follows: 63 hours x $280.35 = $17,662.05 (this is a gross figure) $17,662.05 x 12 (amortized annually) = $211,944.69 (this is also a gross figure).

[24] Neither of the respondent’s annualized income calculations include his pre-COVID-19 income from the first quarter of 2020 (nor does the respondent seek to alter his support payments prior to March 2020).

[25] The respondent compares his income of approximately $350,000.00[^1] in 2019 to an estimated annualized income in 2020-2021 of $185,000.00 based on the March MOA, increased to an adjusted annualized income of approximately $212,000.00 based on the October MOA. These translate into an income reduction of between 40% and 50%.

[26] However, I do not accept the respondent’s 2019 income to be the appropriate benchmark for comparison. The comparison that I must consider is the reduction in the respondent’s annual income in 2020 relative to the benchmark annual income attributed to him at the time of the Support Order, which was $300,000.00. Using the respondent’s annualized income numbers for 2020-2021 against that lower benchmark translates into a 30% to 40% income reduction.

[27] The respondent argues that his reduced annualized income will carry over into 2021. The October MOA is in place until April 1, 2021 and he expects further income restrictions will continue under the next MOA which will likely extend for a further six months (and beyond until the Airline industry recovers, which he predicts could take three years).

The Applicant’s Approach and Assumptions

[28] The applicant does not agree with the annualized income numbers that the respondent has suggested. The respondent is a T4 employee of Air Canada and, while he does not yet have his 2020 T4, he does now have his 2020 pay stubs. His December 17, 2020 pay statement has two different income numbers on it: (i) his total gross income from Air Canada up to that date is indicated to be $278,918.87; and (ii) his CIT taxable gross income is indicated to be $253,398.63.

[29] The applicant uses the higher of these income numbers, from which she concedes that the respondent can properly deduct $8,918.87 in crew expenses[^2], but to which she argues he must add back $4,535.86 in monies that were clawed back by Air Canada in 2020 due to overpayments of salary in 2019.[^3] These adjustments result in 2020 earnings of $274,865.01 in 2020, according to the applicant.

[30] The respondent says that his actual 2020 income is the lower number on his pay stub for 2020 of $253,398.63. The applicant says that the CIT Taxable Gross earnings for 2020 are not representative of his gross earnings in 2020. In any event, the applicant maintains that neither of these 2020 gross income figures constitute a prima facie material change from the $300,000.00 annual income attributed to the respondent at the time of the Support Order. These represent, respectively, income reductions of only between 9% and 16%.

The Court’s Approach to Calculating the Respondent’s Reduced 2020-2021 Income

[31] The difference between these two “gross” income numbers that appear on the respondent’s 2020 pay stub is not entirely clear to me. What is clear is that both of these numbers include three months of pre-COVID salary (January 1, 2020 to April 1, 2020). The respondent also says they include his 2019 bonus of $20,467.06 received by him in the 2020 calendar year.

[32] I agree with the respondent that for comparison purposes in the particular circumstances of this case that are focussed on a change in the respondent’s circumstances that occurred in March of 2020, the annualized income numbers post the catastrophic change in his employment circumstances would be most relevant for comparison purposes, which would exclude his pre-pandemic earnings in 2020.

[33] I also agree with the respondent that the bonus he received in 2020 should not be included in his income for comparison purposes since it was earned in 2019, even though paid and therefore included by Air Canada in his 2020 income for income tax purposes. When considering whether to include a bonus in income for family law support calculation purposes, it is appropriate for the court to consider whether there is any immediate prospect of similar payments: Van Boekel v. Van Boekel, 2020 ONSC 5265, at para. 137. Unlike in the cases relied upon by the applicant, where bonuses were an integral part of the payor spouse’s compensation arrangement (such as Ross v. Ross, 2010 ONSC 3590, 92 R.F.L. (6th) 159 and Eccles v. Eccles (2003), 2003 CanLII 57410 (ON CA), 43 R.F.L.(5th) 321 (Ont. C.A.)), the respondent’s bonuses have always been discretionary and it is unlikely, given the circumstances, that any bonus will be payable for 2020. No bonuses are provided for in either of the MOAs.

[34] The inclusion of bonuses in determining a payor's income is a discretionary decision by the court. One of the many factors a court must consider in determining whether to apply its discretion is whether the nature of the bonus is akin to income for work done for that year. The court has the discretion to elect the fairest method or take whatever steps it determines are appropriate to arrive at an income figure that is fair for the purposes of support: Van Boekel, at paras. 132, 137.

[35] For purposes of the rough assessment of the respondent’s 2020 and anticipated 2021 income that I must come up with to evaluate his request for the without prejudice temporary- temporary variation of his support obligations I do not consider there to be a realistic prospect of the respondent earning a bonus in either 2020 or 2021. I would therefore exclude it from his income for purposes of the issues that I must decide on this motion.

[36] I do agree with the applicant that the payroll deductions that she has calculated to be $4,535.86 in 2020 and that are estimated at $900-$1,000 per month for 2021 should not be deducted from the respondent’s income for purposes of my calculations and comparisons. Even though these clawed-back amounts are being deducted from the respondent’s pay, the clawed back amounts were earned in 2020. He is simply paying back monies he owes to Air Canada from prior years’ overpayments.

[37] Netting out the expenses (deduct $8,900.00), bonus (deduct $20,500.00) and the claw-back (add $4,500.00) would result in an approximate $24,900.00 reduction from the applicant’s gross income figures on his pay statement for 2020 (either $274,865.00 or $253,398.63). This, in turn, translates into income reductions for 2020 when compared to the benchmark of $300,000.00 of between 17% (at an estimated reduced income of $250,000.00) and 24% (at an estimated reduced income of $228,500.00). However, these reductions are based on the pay stub income numbers that include the pre-COVID-19 earnings in the first quarter of 2020 that are not representative of the situation after the event that gave rise to the catastrophic change in the circumstances of the respondent’s employment. I can therefore fairly assume that the respondent’s annualized income reduction post-March 2020 was greater than this range of 17-24%.

[38] The respondent contends that the reduction is actually between 30-40% based on the guaranteed flying hours under the MOAs. I do not need to make a finding as to the precise percentage by which the respondent’s income has dropped. I estimate the respondent’s income reduction in 2020 (after March) and projected for 2021 to be somewhere between 20% and 30%. It is sufficient for purposes of this motion that the ranges of the respondent’s income reduction post-March 2020 are estimated to be more than 20% when compared to his benchmark income of $300,000.00.

[39] On this basis, I am satisfied that the respondent has made out a strong prima facie case that there has been a material change in his conditions, means and circumstances. The respondent’s change in employment circumstances were clearly involuntary. I am further satisfied that there is a strong prima facie case that the respondent’s income reduction is not just temporary – it has persisted now for nine months and is expected to continue for the foreseeable future.

[40] My estimates will be subject to review, testing and potentially expert assessment in the context of the final adjudication and any necessary adjustments can be made at that time. In the meantime, the respondent has made out a strong prima facie case that justifies some relief pending that final adjudication.

b) Will the respondent suffer hardship if the temporary-temporary order is not granted?

[41] The respondent’s evidence is that if he continues to pay the monthly support under the Support Order, he will be left with far less than half of the parties’ net disposable income (how much less depends on what income is allocated to the applicant). As a practical matter, if he is required to continue to pay the monthly amounts prescribed by the Support Order the respondent’s monthly expenses will far exceed his net monthly income. While the respondent has other assets, such as his condominium and his pension and RRSP, these are not readily accessible or liquid assets that can be accessed without consequences.

[42] The impact of the COVID-19 pandemic on air travel is a circumstance that was beyond the respondent’s control and he should not bear the entirety of the burden that his reduced flying hours and salary have created. While it will no doubt create a hardship on the applicant to be in receipt of less monthly spousal support, the applicant has focussed primarily on challenging the respondent’s position and has not identified specific hardships that she will suffer if the spousal support payments are reduced. The respondent has suggested that the applicant has the ability to draw more from the retained earnings in her company to support herself.

[43] In these circumstances, it is my view that the hardship should be shared and not borne entirely by the respondent.

[44] I find this aspect of the Berta test to have been satisfied by the respondent.

c) Has the respondent demonstrated urgency?

[45] The respondent’s motion was brought on an urgent and timely basis. Disclosure was ordered to be made by the applicant and the parties agreed to wait to come back until after the second MOA had been negotiated and the respondent’s 2020 income could be established with some greater certainty. Hardship has been demonstrated here, where the the timing of the final adjudication is uncertain but realistically will not be until later this year at the earliest. That delay is partly a function of normal course procedure and scheduling, but is also impacted by the uncertainty of the circumstances that have given rise to this motion. The combination of hardship and the prospect of some delay gives rise to the urgency in this case for some form of temporary relief.

[46] I find this aspect of the Berta test to have been satisfied by the respondent.

d) Did the respondent come to court with clean hands?

[47] The applicant raises various arguments about alleged “lies” by the respondent regarding his pension valuation and income predictions, dating all the way back to the $300,000.00 annual income attributed to him for purposes of the Support Order. These alleged lies have not been proven and will no doubt be the subject of some controversy if pursued by the applicant. These allegations have not been established to a sufficient degree to lead me to make a finding now that the respondent has not come to court with clean hands.

[48] The applicant argues that the respondent’s failure to pay the support payment due under the Support Order on January 1, 2021 and his unilateral reduction of the amount paid to that which he asks the court to reduce his obligations to (at $4,600.00 per month) is contempt of court and justification, in and of itself, for denying his motion.

[49] The court does not condone self-help remedies. However, the respondent undertook through his counsel, and made it clear at the hearing, that he will pay whatever is owing for January 2021 before the end of the month, whether it be the amount due under the Support Order if no decision has been made or if the motion is denied, or the amount of the difference owing if the court reduces the support obligation to something other than what the respondent has asked for. If the short-payment of support had been persistent or recurring I might have viewed this differently, but I am not going to deprive the respondent of the temporary-temporary reduction in his support obligations because he has paid the lower amount that he contends is the appropriate amount during the month in which the hearing was scheduled to determine the very question of whether his support obligations should be reduced.

What Quantum of Spousal Support Should the Respondent Pay on a Temporary-Temporary Basis?

[50] The respondent asks me to consider the ranges calculated by DivorceMate using the spousal support guidelines for support calculations, and to adopt the mid-range of the resulting calculations to determine a reduced temporary amount of monthly support payable by him. This is the approach that was adopted by the court in Roberts v. Roberts, 2020 ONSC 2935, at paras. 43-44.

[51] On an interim motion such as this, the court is not expected to determine conclusively or exactly income amounts for each spouse. Rather, interim motions for variations of spousal support are based on “rough justice”, and estimates of income for both spouses: See Raaflaub v. Gonosch, 2020 ONSC 1578, at para. 28. To do this, I need to determine not only the respondent’s income but also the appropriate amount of income attributable to the applicant in 2020.

[52] Based on the conclusions outlined above, the respondent’s 2020 income could be determined based on annualized income earned under the MOA’s (that do not include his 2019 bonus or higher income paid during Q1 2020 pre-COVID-19 pandemic). The respondent suggests $185,000.00 or $212,000.00 based on the MOAs. The 2019 income overpayment claw-backs should not be deducted from the respondent’s 2020 income for support purposes but expenses may be deducted and there may be other deductions at source. I am not able to calculate a precise annualized income number at this time. The applicant’s estimates of the income that should be attributed to the respondent, adjusted for expenses, bonus and claw-backs (but before any adjustments for the pre-March 2020 higher income levels), would work out to be approximately $228,500.00 or $250,000.00. Within the ballpark of these four possible numbers (ranging from $185,000.00 to $250,000.00), my rough estimate for purposes of this motion leads me to attribute annualized income to the respondent of $220,000.00.

[53] Next, I turn to the number to be used for the applicant’s income for support purposes. After the Support Order the applicant retired, began drawing on her pension and continued to pursue her business interests through a corporation that has and continues to accumulate profits and retained earnings. This was the subject of some of the disclosure that was ordered by Akbarali J. in June 2020, from which I am being asked by the respondent to impute the applicant’s annual income to be $90,000.00 based on adverse inferences sought from her unwillingness to provide certain information about expenses charged through the company that the respondent suspects are personal.

[54] The respondent suggests that, at a minimum, the applicant should be attributed income at 80% of the annual gross profits of her business, which is the level at which she drew gross profits in 2017 (the last year end prior to the Support Order), which would put the applicant’s annual income, when combined with her pension income, at $75,000.00. The applicant contends that she is doing exactly what the parties anticipated and foresaw at the time of the Support Order would be done with her business income: that is, retain the earnings in the company so that it would be available to supplement her income after the respondent retires and is no longer paying her spousal support.

[55] I agree with the applicant that this motion to change is predicated on the respondent’s employment circumstances and the reduction in his income and not a change in the applicant’s needs or means to support herself: Haworth v. Haworth, 2018 ONCA 1055, 21 R.F.L. (8th) 15, at paras. 19, 21. For that reason, I do not consider it to be necessary or appropriate at this stage to impute income to the applicant beyond the $53,000.00 annual income that was attributed to her at the time of the Support Order. I have reached this determination for purposes of the without prejudice temporary-temporary change order, but without intending to foreclose a further exploration and the development of an evidentiary foundation that might support the imputation of greater income to the applicant at the final hearing.

[56] None of the DivorceMate calculations that I have been provided with use the income numbers for either the respondent or the applicant that I think are appropriate estimates for purposes of this motion. The appropriate calculation based on my findings should attribute $220,000.00 as the respondent’s income and the same $53,000.00 attributed to applicant at the time of the Support Order. When I input these numbers and other information into the DivorceMate software consistent with the calculations provided by the respondent (which allowed for $4,600.00 in union dues as an expense), this results in a monthly support payment obligation payable by the respondent to the applicant in the range of $4,263.00 to $5,684.00 with $4,974.00 as the mid-range. However, the scenario of a 50/50 NDI split (consistent with the DivorceMate calculation that was prepared by the applicant’s counsel at the time of the Support Order) produces a monthly support obligation of $6,738.00 based on these inputs. I will provide the parties with a copy of this DivorceMate calculation for their reference. For purposes of this without prejudice temporary-temporary relief, I am ordering a reduction in spousal support to the 50/50 NDI split number of $6,738.00 per month.

Retroactivity

[57] The respondent commenced this application in May of 2020 and seeks an order for retroactive reduction in his support obligations back to the date when the motion was brought. While hindsight suggests that the COVID-19 pandemic was indeed a catastrophic change in the respondent’s employment, that would not necessarily have been ascertainable when the motion was brought in May of 2020. That was the conclusion reached by Akbarali J. in June of 2020 when the motion first came before her, although her adjournment of the motion which was, in part to allow for further disclosure to be made about the applicant’s income, was without prejudice to the respondent’s right to ask for an order retroactive to May 1, 2020.

[58] Delaying the hearing until after the second MOA was in place allowed for greater certainty regarding the respondent’s employment income for 2020 as well as for some more experience with the pandemic and its impacts. That has allowed a more fulsome analysis and appreciation of the respondent’s 2020 income and a better foundation for predicting the persistence of the effects of the pandemic on the respondent’s employment circumstances into 2021.

[59] Retroactivity is a matter of discretion. It is often left to be decided in the final adjudication. In the circumstances of this case, and in the exercise of my discretion, I am ordering the reduction of the respondent’s spousal support to be retroactive to October 1, 2020 when the second MOA was signed that determined the respondent’s income for the balance of 2020. That is what I consider to be fair in the circumstances for purposes of this without prejudice temporary-temporary order. This will be subject to review in the final adjudication and is without prejudice to either party’s position at that time as to any different period of retroactivity.

Temporary Order, Costs and Implementation

[60] Once the final calculations have been determined, a without prejudice temporary-temporary order will go:

a. Varying paragraph 7 of the Support Order (Final Order of Justice Miller dated July 3, 2018) so as to reduce the monthly spousal support payable by the respondent to the applicant to $6,738.00 per month, effective October 1, 2020 and continuing until further written agreement or court order; and

b. Requiring the applicant to pay the respondent back the over-payments of support received from and after October 1, 2020 on a monthly basis starting on February 1, 2021 through minimum monthly installments of $2,500.00 until the overpayments of support by the respondent from and after October 1, 2020 have been repaid.

[61] The intention is that the monthly support payments be tax deductible to the respondent and claimed as income to the applicant. The mechanism for any retroactive adjustments should give effect to that intention.

[62] The parties are both seeking costs of the prior attendances, including two case conferences, the motion before Akbarali J., and the cost submissions that were made following it. They also both seek their costs of this motion. Now that the outcome of the motion is known, the parties are encouraged to try to settle the costs issues. If they are unable to do so, any party who is seeking costs may deliver to the other a brief written submission on costs (not to exceed 3 pages double spaced) with attached cost outlines in respect of any step in the proceeding for which costs are sought and any relevant settlement offer(s) by February 15, 2021. Responding cost submissions of no more than 1.5 pages double spaced may be delivered by February 28, 2021. All such submissions shall be provided to me by email to my assistant, linda.bunoza@ontario.ca.

[63] This endorsement is an order of the court, enforceable by law from the moment it is released without the necessity of formal issuance and entry.

Kimmel J.

Date: January 29, 2021

[^1]: Air Canada subsequently determined that the respondent had been overpaid in 2019 due to an administrative error on Air Canada’s part. Air Canada began to claw-back those overpayments during 2020 through payroll deductions which are continuing, of approximately $900-1,000.00 per month. $14,000.00 remains owing and it is expected this claw-back will continue throughout 2021.

[^2]: I am accepting the applicant’s position on the exclusion of expenses from income for purposes of the income comparisons that I am considering on this motion, but it may still be the subject of further argument and potentially expert testimony at the final adjudication.

[^3]: There is some evidence about some additional investment income, but it is indicated to be less than 1% of the respondent’s income and there is no evidence that it has changed since the time of the Support Order so, for relative comparison purposes I have not factored this investment income into the analysis.