minicounsel

COURT FILE NO.: FC-FS-155/14-01

DATE: 2021/11/03

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Laurie Ann Shortt

Karen King, for the Applicant

Applicant

and -

Paul Shortt

Sarah Ronbeck, for the Respondent

Respondent

HEARD: September 14, 15, 16, 17, 2021

T. PRICE J.

1On October 23, 2017, with the consent of both parties, Justice K. Gorman made a final order pursuant to which, commencing November 1, 2017, the Respondent, Paul Shortt (hereinafter referred to as Paul) was to pay spousal support to the Applicant Laurie Ann Shortt (hereinafter referred to as Laurie) in the amount of $1,850.00 per month, based on Paul’s annual income of $70,420.00 and Laurie’s annual income of $20,381.00.

2The order included an obligation that the parties exchange income tax returns yearly by June 1, commencing June 1, 2018, “in light of the Respondent’s claim that he is medically unable to work the overtime that he has in previous years during the marriage and after separation.”

3The order further provided that either party could apply to vary the order “based on a material change in circumstances, which shall include any increase in the Respondent’s income.”

4On August 21, 2019, Paul commenced a Motion to Change the order of Justice Gorman. In his motion, he requested that spousal support be terminated effective January 1, 2018 or, in the alternative, that the court determine a different level of spousal support as of January 1, 2018.

5At trial, Paul’s counsel informed me that her client had modified his request for relief. He is now requesting that whatever relief he might be granted take effect as of September 1, 2019 rather than January 1, 2018.

6Paul takes the position that Laurie has achieved economic self-sufficiency. His counsel cites the fact that Laurie’s income now meets her budget and that the parties’ younger daughter, who lives with Laurie, contributes to household expenses. Laurie is said to have a good employment position which provides both benefits and a pension.

7In the alternative, Paul seeks a reduction in spousal support on the basis that his income has diminished since the order was made by Justice Gorman, and Laurie’s income has had a corresponding rise.

8Laurie responded to the Motion to Change, initially seeking an increase in spousal support based upon the increases in Paul’s income after 2017. She abandoned that claim at trial, so the only issue upon which I need to adjudicate is whether Paul should be granted any of the relief sought by him in his now modified Motion to Change.

9Laurie’s primary position with respect to Paul’s claim is that Justice Gorman’s order was based on the parties having been in a long-term traditional marriage, with the agreed-upon spousal support amount, which she claims should not be changed, being primarily compensatory in nature.

10Laurie submits, in the alternative, that if there is to be a reduction in her spousal support, it should only be for a limited time, given the reasons why Paul is claiming that his income will be reduced in 2021 and, perhaps, 2022.

11This case raises the following issues:

Issue #1: Has the legal prerequisite to a change in Justice Gorman’s spousal support order been met in this case?

Issue #2: Should I be satisfied that there has been a material change in circumstances since the making of the previous order, what change is appropriate in the circumstances?

12For the reasons that follow, I have reached the following conclusions:

Issue #1:

13There has been a material change in circumstances since the order of Justice Gorman, based on increases in Laurie’s income over the time since.

Issue #2:

14Commencing September 1, 2019, Paul shall pay monthly support to Laurie in the following amounts:

2019: $1,682.00

2020: $1,467.00

2021: $1,116.00

2022 and beyond, until there has been a further material change in circumstances: $1,270.00.

15The repayment by Laurie of overpaid spousal support since September 1, 2019 is addressed in the operative terms of the order at the end of these Reasons.

Issue #1: Has the legal prerequisite to a change in Justice Gorman’s spousal support order been met in this case?

Issue #1: Law and Analysis

16Because the parties were married and the support order of Justice Gorman was made in their divorce proceedings, the Respondent’s Motion to Change is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), as amended.

17A variation request “involves the application of both s. 17(4.1) and s. 17(7) of the Divorce Act”. (L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at para. 48)

18 Section 17(4.1) of the Divorce Act requires that the court to which a request for the variation of an existing support order has been made be satisfied, before making a support variation order, that a change has occurred in the condition, means, needs or other circumstances of either former spouse since the making of the order under review.

19It is clear that I am not to consider events that occurred before the date of the order to determine whether or not a material change in circumstances has occurred. (Gray v. Rizzi, 2016 ONCA 152, [2016] O.J. No. 958 (C.A.), citing L.M.P., at para. 31, citing Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, at p. 688.)

Paul’s Circumstances at the Time of Justice Gorman’s Order

20Paul’s circumstances on October 23, 2017 germane to this matter which remained unchanged when he commenced his Motion to Change on August 21, 2019 included:

a. having been employed at Formet Industries in St. Thomas since 1998;

b. having a base hourly rate of pay which had not decreased;

c. having resided in the same 2-bedroom apartment since May 2014 with his current partner and her daughter;

d. having shared with his current partner the costs of their cohabitation since May 2014, some of which were borne disproportionately by Paul because he earns a higher income; and

e. being subject to the terms of a consumer proposal made by him under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B.3, in January 2016 which required that he pay the sum of $17,400.00 at the rate of $300.00 per month for 58 months.

21All of those circumstance continued to apply to Paul when this matter was tried in September 2021, except that he had successfully complied with the terms of his consumer proposal and been discharged from it in March, 2021. He is no longer obliged to make the payments of $300.00 per month under the proposal. Accordingly, none factor into whether there has been a material change in Paul’s circumstances since October 23, 2017.

22Paul’s stated income in Justice Gorman’s order was $70,420.00.

Laurie’s Circumstances at the Time of Justice Gorman’s Order

23Laurie’s circumstances on October 23, 2017 germane to this matter which remained unchanged when Paul commenced his Motion to Change on August 21, 2019 included:

a. having resided in the same 2-bedroom apartment since mid-2017; and

b. being an undischarged bankrupt since approximately mid-2017, obliged to pay $200 per month for a 54-month period ending in February 2022.

24Those circumstance continued to apply to Laurie when this matter was tried in September 2021. As with Paul, none factor into whether there has been a material change in Paul’s circumstances since October 23, 2017.

25At the time that Justice Gorman made the consent spousal support order on October 23, 2017, Laurie was employed as a receptionist at an insurance agency, supplementing her salary by cleaning the office after hours. Her stated income in the order was $20,381.00.

Material Change in Circumstances Defined

Paul [Commencing January 1, 2019]

26The order of Justice Gorman contained a provision which authorized a request for a variation “based on a material change in circumstances.” The order included in that term “any increase in [Paul’s] income.”

27Paul’s income in 2018, 2019 and 2020 was greater than the amount attributed to him by the order of Justice Gorman. (Details are set out below)

28Therefore, based solely on the terms of Justice Gorman’s order, there was a material change in circumstances when Paul sought the variation, a conclusion which Laurie did not dispute.

29That, however, is not the basis on which Paul has brought this motion to change.

30Rather than relying on the increase in his own income as a reason to vary the order of Justice Gorman, Paul cited Laurie having secured full-time employment at the St. Thomas Elgin General Hospital on or about January 1, 2018 as the reason for requesting the elimination or reduction of spousal support. He claimed both a belief that Laurie’s income had “greatly increased since the Order was made,” and a belief that Laurie had become self-supporting as a result and no longer required spousal support.

31Paul claimed that he could not establish the truth of his beliefs about Laurie’s circumstances when he commenced his motion to change because she had failed to comply with the income disclosure obligations contained in Justice Gorman’s order.

32Laurie denied Paul’s allegation. She testified that she had diligently mailed him her income tax returns and T4s each year. There was evidence, however, that she may have inadvertently neglected to include Paul’s apartment number on the annual mailings.

33In the end, I find that the only issue which would have turned on whether or not Laurie had provided Paul with evidence of her annual income is the date, if any, on which changes to Paul’s spousal support obligation might occur. Given, however, that Paul has now modified his claim to request that any relief afforded him by my order take effect on September 1, 2019, a date after the motion to change was issued, the dispute about Laurie’s alleged failure to provide financial information fades to irrelevance for the purposes of this trial.

34Paul is further relying on a reduction in his income in 2021 and, perhaps, 2022, as a further reason for there to be a change in Laurie’ spousal support, although that claim was not made in his Motion to Change form.

35The Supreme Court addressed the concept of a “material change in circumstances”, in L.M.P. v. L.S., supra, writing:

44 In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J. described in Willick, namely:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [p. 688]

36However, as the Supreme Court also noted in L.M.P. v. L.S., citing its decision in Hickey v. Hickey,

48….As with the variation of child support orders, this change must be material, and cannot be trivial or insignificant.

37Surely, the order of Justice Gorman, or the agreement of the parties upon which it was based, could not have intended that the parties would be heading off to court every time Paul’s income increased, even by the smallest amount. That, however, is the literal effect of the words “any increase in [Paul’s] income” constituting a material change in circumstances.

38Paul certainly did not see it that way, since he never brought a motion to change based on his increased salary in 2018, 2019 or 2020. Neither did Laurie.

39As the Supreme Court also wrote in L.M.P. v. L.S.,

35 … Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material…

40The fact that neither Paul nor Laurie sought to change spousal support based on Paul’s increases in income suggests, in my view, that what they had agreed on was that only Laurie could rely upon the specific provision of Justice Gorman’s order that increases in Paul’s income would constitute a material change in circumstances.

41In my view, further evidence that this interpretation of the order of Justice Gorman is correct is found in the reason listed by Paul for seeking to vary Justice Gorman’s order: his belief that Laurie had become self-sufficient based on increases in her own income resulting from her change of jobs.

42This stands to reason. In 2016, Paul had suffered a reduction in income, due to injury, and he had been told by his physician that he should work less overtime. It is not likely that Paul would later seek to increase his spousal support based on his subsequent, post-recovery increases in income.

43Until this proceeding, Laurie had not sought to rely on increases in Paul’s income to vary the order of Justice Gorman. Then, having initially claimed an increase in spousal support based on the increases in Paul’s income since 2017, Laurie ultimately made clear during the trial, after consulting with her counsel, at my request, that she was abandoning her claim for an increase in spousal support.

44I find that Laurie was content to continue receiving the spousal support upon which the parties agreed in 2017, despite knowing of the increases in Paul’s salary in subsequent years. She simply did not want her spousal support to reduced or, worse, eliminated.

Do the increases in Laurie’s income after 2017 constitute a material change in circumstances upon which Paul can rely in bringing his motion to change?

45This question lies at the heart of Paul’s motion to change.

46Laurie left her former employment with an insurance agency as a result of a restructuring following its sale. She commenced employment at St. Thomas Elgin General Hospital on January 8, 2018. She works in the housekeeping department and, apart from a 6-month period in 2020 when she worked full-time hours due to Covid-19, and a Leave of Absence in 2021 to assist her parents, she has worked regular part-time hours, which are assigned over rolling 6-week periods, since her date of hire. She supplements her regular part-time hours with as many call-in shifts as she can secure. When the call-in shifts are included, she typically works 4 to 5 days per week.

47She is a member of a union and has been enrolled in the HOOPP pension plan since her date of hire. She does not receive benefits. Instead, her base salary is increased by a percentage “in lieu” of benefits.

48In 2018, 2019 and 2020, her income from the hospital exceeded that which she was earning at the insurance agency. Whether that will occur again in 2021 is uncertain, but more probable than not.

Laurie’s Employment Income Since January 1, 2018

2018

49Laurie’s employment income (after deduction of union dues) in 2018 was $28,154.57, an increase of 38% over her income noted in Justice Gorman’s 2017 order.

2019

50Laurie’s employment income (after deduction of union dues) in 2019 was $37,642.99, an increase of almost 85% over her income noted in Justice Gorman’s 2017 order.

2020

51Laurie’s employment income (after deduction of union dues) in 2020 was $46,721.78, an increase of 129% over her income noted in Justice Gorman’s 2017 order.

52According to Laurie, the large increase in her wages between 2019 and 2020 was due to the Covid-19 pandemic. The hospital created special “Covid lines”, making as many hours as possible available to members of the cleaning staff. Laurie was able to secure a six-month full-time position. The special “Covid lines” ended on October 15, 2020. Laurie returned to the part-time pool with an increase in seniority, which provides her with better opportunities to bid on full-time jobs, since the successful competitors for such positions are usually the part-time employees with the seniority.

2021

53In 2021, Laurie took a six-month leave of absence to care for her parents in Sarnia. Her father required 35 radiation treatments for inoperable tumors. As a result, he could no longer care for her mother, who has dementia and whose health has been failing for 18 months. As a result of the leave, Laurie succeeded in getting her mother into a long-term care home, and she arranged palliative care for her father at his home. She returned to work at the end of July.

54Because of her leave of absence, Laurie earned $2,608.97 up to January 17, less union dues of $32.30. She received $5,240.00 in employment insurance during her leave. As a result, her total income up to July 28, 2021 amounted to $7,848.97.

55Now that she is again working her regular hours, and assuming that she will again earn, per month, what she was earning in 2019, pre-Covid, it is probable that, by the end of 2021, she will have an employment income for 2021 of approximately $24,000.00, which is more than the income attributed to her in 2017.

Analysis of Effect of Change in Laurie’s Income after 2017

56In order to represent a material change, the change relied upon “must have some degree of continuity, and not merely be a temporary set of circumstances.” (L.M.P. v. L.S., supra, at para. 35, citing Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, at para. 49).

57The increases in Laurie’s income over what she was earning in 2017 appear to be established and ongoing. Except for 2021, each year has seen a greater increase over 2017 than the year before.

58The Ontario Court of Appeal has held that a year-over-year increase of 20% in a party’s income constitutes a material change in circumstances. (Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40).

59In Rathwell v. Rathwell, [2018] O.J. No. 4926, Justice C.U.C. MacLeod held that a 50% increase in a payor’s income (from $60,000.00 to $90,000.00) constituted a material change in circumstances. Laurie’s increase in salary surpassed that percentage in 2019. I see no reason why similar increase in a payee’s income would lead to a different conclusion.

60I was provided with no evidence that Paul had known in 2017 that Laurie might be changing jobs early in 2018, so the increases in her income after 2017 could not have been contemplated by the parties in October 2017. Neither party testified that they had been.

61Had that information been known to Paul in late 2017, I find that it is probable that a different support order would have been agreed upon by the parties, and made by Justice Gorman, in October 2017.

62Based on the foregoing, I am satisfied that, when Laurie secured her new job at St. Thomas Elgin General Hospital in 2018 and began to earn an increased salary – a salary which, but for 2021, has increased more each year since – there was a material change in circumstances allowing for Paul to seek a variation in the order of Justice Gorman.

Paul’s Income Since January 1, 2019

63I heard evidence from Paul during the trial, without objection by Laurie’s counsel, about alleged reductions in his income since 2017. Paul was also cross-examined on that issue by Laurie’s counsel.

64Consequently, I am of the view that I can also consider whether any claimed reduction in Paul’s income since 2017 constitutes a material change in circumstances on which he could base his motion to change, despite him not pleading it as a basis of a change to the order of Justice Gorman.

2018

65Because Paul seeks to change support as of September 1, 2019, his income in 2018 is not relevant to this analysis.

2019

66Paul’s employment income in 2019 was $73,706.45. In addition, he had RRSP income of $15,371.53. Factoring in a very small lump sum payment of $77.61. Paul’s Line 15000 income in 2019 was $89,155.59.

67From that income, Paul made an RRSP contribution of $3,865.52 in 2019.

68In 2019, not including Paul’s RRSP income, both his employment income, and his gross income, were greater than the income attributed to him in the October 2017 order of Justice Gorman. Accordingly, there was no reduction in Paul’s income in 2019 over 2017 on which he can rely in support of his motion to change.

Effect of the RRSP Withdrawal on Paul’s 2019 Income

69Paul’s counsel submitted, however, that when I determine Paul’s income for support purposes in 2019, I ought not include no part of the RRSP amount that was included in his Line 150 (or 15000) income.

70She relied on a number of cases for this submission. They are:

Dillon v. Dillon, 2005 NSCA 166

71In this case, the Nova Scotia Court of Appeal held that it was not a “a fair calculation of [the support payor’s ] income for child support purposes” to count RRSP income withdrawn in the same year that an equivalent amount is deposited into the RRSP. This case has been cited three times in Ontario, twice neutrally and once negatively.

Horowitz v. Nightengale, 2015 ONSC 190

72In this case, the support payor regularly withdrew funds from his RRSP and had done so over a period of years. The court averaged the RRSP withdrawals and included the average in the payor’s income for support payment purposes.

73In this case, the court considered some Court of Appeal decisions on this issue. They were:

Fraser v. Fraser, 2013 ONCA 715, [2013] O.J. No. 5347, where the Court of Appeal held that “subject to ss. 17-20 of the Guidelines, RRSP income received in a particular year is presumptively part of a spouse's income for child support purposes.” The court held that the use of the RRSP funds for a house purchase by the unemployed father was not a reason to exclude his RRSP income from income for support purposes.

Ludmer v. Ludmer, 2014 ONCA 827, [2014] O.J. No. 5565, where the Court of Appeal upheld the trial judge’s decision to not include the parties’ RRSP withdrawals in their income for support purposes. The court held that “[t]he inclusion of RRSP proceeds is not mandatory, however, and the court has the discretion in appropriate circumstances to do otherwise”, with Section 17(1) of the Guidelines providing “flexibility”. The Court of Appeal upheld the trial judge’s determination that including the RRSP proceeds in the parties' incomes "would not be the fairest determination of [the spouses' incomes]" for support purposes, and that in excluding them, he was arriving at an amount that was "fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount".

74Before I review the uses that Paul has made of his RRSP withdrawal in 2019, I note again that Laurie abandoned her claim for increased support from him. In light of her having done so, I conclude that, should I include the RRSP income, or part thereof, in Paul’s income in 2019, the only effect of doing so will be to attenuate the effect of any increase in Laurie’s income in 2019.

75Firstly, I accept and apply the principle set out in Dillon v. Dillon, supra, and reduce the amount of the withdrawal from Paul’s RRSP in 2019 by the amount he contributed the same year, thereby reducing the maximum amount of the RRSP withdrawal that is available to be added to Paul’s income to $11,506.01.

76Of that amount, Paul gave $6,000 to his girlfriend because she was on layoff. He also purchased a wedding dress for her daughter, paid legal fees to his lawyer and paid $3,500.00 by way of a down payment for his girlfriend’s daughter destination wedding which is to occur in 2022.

77I was not provided with the amount paid to Paul’s lawyer from the RRSP funds, nor the amount paid to purchase his girlfriend’s daughter’s wedding dress.

78I do know, however, that $9,500.00 was paid by Paul to his girlfriend and for a trip to her daughter’s wedding. Because it is my view that the spousal support payment in favour of Laurie was compensatory in nature, I am adding into Paul’s income for the year 2019 the sum of $9,500.00 and will be imputing an income to him for spousal support purposes in 2019 of $83,284.06.

2020

79Paul’s employment income in 2020 was $69,960.34. He also had Employment Insurance (CERB) income of $4,500.00 and “Other income” of $2,053.76. Paul’s Line 15000 income in 2020 was $76,514.10. I find that to be his income in 2020.

80Unlike 2018 and 2019, Paul’s employment income was lower in 2020 than the income attributed to him in 2017. However, when the employment-related E.I. (CERB) is added in, both Paul’s employment-related income, and his gross income, were greater than the income attributed to Paul in the October 2017 order of Justice Gorman.

81Even if I were to exclude the E.I. (CERB) addition to Paul’s employment income in 2020, the reduction in 2020 employment income, when compared to his 2017 attributed employment income, amounts to less than 1%. This, in my view, does not constitute a material reduction in Paul’s income over 2017.

82Accordingly, I find that there is no reduction in Paul’s income in 2020 over 2017 on which he can rely in support of his motion to change.

2021

83Paul expects his 2021 income to be lower than in previous years because Formet has suffered a production slow-down due to a shortage of computer chips necessary for the production of automobiles.

84Paul testified that the main impact that the slow-down has had on him, and is likely to continue to have into 2022, is that he will have fewer opportunities to work overtime hours. Since he recovered from his 2016 injury, and prior to Covid-19, he has consistently worked approximately two overtime shifts per month - but they have always been available to him. He expects that the reduced overtime hours, resulting in a lower income, will continue until the chip shortage is resolved.

85Paul estimated that his 2021 income will be between $66,000 and $67,000. The 2021 year-to-date income statements produced by Paul suggest that his 2021 income is likely to be around $68,000.00.

86However, despite the slowdown, Paul’s base hourly rate of pay has not changed, and his shift premiums remain the same. He took a voluntary two-week layoff in 2021, for which he utilized two of his five weeks of vacation, meaning that he was paid for the two-week layoff.

87Paul testified that, as was the case in 2020, he has no intention of withdrawing funds from his DPSP or RRSP in 2021.

88The amount that Paul estimates he will earn in 2021 represents a reduction of 3.45% when measured against the income attributed to him by the October 2017 order of Justice Gorman.

89Paul’s counsel relies on Raaflaub v. Gonosch, 2020 ONSC 1578 to support her submission that the reduction in Paul’s income in 2021 is “material.”

90In Raaflaub, the reduction in the payor’s income was 15.7%. The reduction resulted from a loss of overtime and on-call hours. The loss of both was confirmed by the evidence to be “eliminated with no future availability.” In other words, permanent.

91Justice McDermot considered the effect of the reduction in the payor’s income on support under the Spousal Support Advisory Guidelines (SSAGs) and found that the amount that he was paying under the existing order was beyond even the highest amount of support that would be payable under his reduced income.

92As a result, he found not the reduction in pay to be material, but the $500.00 reduction in spousal support to be. More significantly, he also held that he could not justify a departure from the application of the SSAGs, as he would be required to do if he were to not apply them, based on the Court of Appeal decisions in Fisher v. Fisher, 2008 ONCA 11 and Slongo v. Slongo, [2017] O.J. No. 4564.

93I find that Raaflaub is distinguishable on its facts. The reduction in the payor’s hours was confirmed to be permanent. In this case, I cannot conclude on even a balance of probabilities that the chip shortage which is having an impact on Paul’s overtime hours is other than “a temporary set of circumstances” not having “some degree of continuity.”

94Paul’s evidence was to the effect that his hours at Formet have been reduced for much of 2021, a situation which may continue into 2022, but the reduction is clearly tied to a shortage of computer chips slowing automobile production at the manufacturers supplied by Formet.

95The availability or lack thereof of automobile computer chips in 2022 is a conjectural future event. “A decision to vary must not be made in accordance with events which may or may not occur.” (Schulstad v. Schulstad, 2017 ONCA 95, [2017] O.J. No. 513, at para. 21 (C.A.), citing Messier v. Delage, 1983 31 (SCC), [1983] 2 S.C.R. 401 at p. 416.)¹

96As a result, I conclude that Paul has not experienced a material change in circumstances pertaining to his income in 2021. I will be attributing an income of $68,000.00 to Paul in 2021.

Conclusion on Issue #1

97The only material change on which Paul can rely in support of his motion to change the amount of spousal support that he pays to Laurie is Laurie’s post-2017 increases in employment income.

98However, when considering the SSAGs, I will be averaging Laurie’s income for the years 2019, 2020 and 2021, and using an estimated income based on, but slightly higher than, the averaged amount as Laurie’s income 2022.

99I consider that averaging Laurie’s income over the period 2019-2021 will provide “the fairest determination” of her income “in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.” (SSAGs s. 17(1)).

100In 2019, she was working her way up the seniority list and beginning to make progress in securing additional hours. Covid had not yet set in, and her parents’ conditions had not reached the point where she had to take leave of her job to help them. In calculating spousal support for that year, however, I will use the actual (higher) income earned by Laurie in 2019 ($37,624.99), rather than the averaged amount.

101In 2020, her income increased substantially because of Covid-19. However, the increased income was lost with the removal of the “Covid lines” of work at the hospital.

102In 2021, she has been required to leave work for a period and rely on government benefits which have reduced her income.

103In my view, the best way to “smooth out” the fluctuations of 2020 and 2021 is to average Laurie’s incomes over the 3-year period (2019, 2020 and 2021) and to use the averaged figure for 2020, 2021 and 2022. That averaged income amounts to $36,121.59., i.e., ($37,642.99 + $46,721.78 + $24,000.00)/3))

Issue #2: Should I be satisfied that there has been a material change in circumstances since the making of the previous order, what change is appropriate in the circumstances?

Issue 2: Law and Analysis

104Upon being satisfied that a change has occurred in the condition, means, needs or other circumstances of either former spouse since the making of the spousal support order under review, “the court must consider the four objectives of spousal support enumerated in s. 17(7) of the Divorce Act.” ((L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at para. 48, citing Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para. 20)

105 Section 17(7) of the Divorce Act provides as follows:

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

106As the Supreme Court of Canada held in L.M.P. v. L.S., 2011 SCC 64, at paragraph 50 (citing its decision in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518), “once a material change in circumstances has been established, the variation order should "properly reflec[t] the objectives set out in s. 17(7), . . [and take] account of the material changes in circumstances" (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.”

107As the Supreme Court also wrote in L.M.P. v. L.S, supra, at paragraph 34, its prior decisions in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), 1995 65 (SCC), [1995] 3 S.C.R. 370 “make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order”.

108I have already noted those circumstances, supra, at paragraphs [20] and [23].

Analysis of the Section 17(7) Objectives

109Paul’s counsel focused her submissions almost entirely on the factor enumerated in s. 17(7)(d) – Laurie’s economic self-sufficiency.

110She submitted that, with Laurie’s income increases since 2017, Laurie is now economically self-sufficient. As a result, counsel submits, Paul’s obligation to support Laurie should end as of September 1, 2019.

111Laurie’s counsel, on the other hand focused much of her argument on the factors in s. 17(7)(a) and (c), rejecting the contention that Laurie is now economically self-sufficient, primarily due to her bankruptcy and how it came about.

112As the Supreme Court noted at paragraph 49 of L.M.P. v. L.S., supra:

49 Julien D. Payne and Marilyn A. Payne observed that "[t]here is nothing in the Divorce Act to suggest that any one of the objectives [in s. 17(7)] has greater weight or importance than any other objective" (Canadian Family Law (3rd ed. 2008), at p. 253). Rather, the objectives "operate in the context of a wide judicial discretion" and "provide opportunities for a more equitable distribution of the economic consequence of divorce between the spouses".

Economic Advantages or Disadvantages Arising from the Marriage or its Breakdown

113I am satisfied that Laurie suffered an economic disadvantage as a result of both the marriage and its breakdown, and that both were recognized in the original order, which I find was primarily compensatory in nature.

114Paul’s counsel submitted that I could not make a finding about the nature of the original support order made by Justice Gorman. I disagree. (Menegaldo v. Menegaldo, 2012 ONSC 2915, [2012] O.J. No. 2186 at para. 43)

115Support orders can be compensatory, non-compensatory or contractual in nature, and an order may comprise elements of the different models. Identifying the nature of the order of Justice Gorman is essential to determining what changes, if any, are to be made to that order based on the parties’ circumstances since it was made. (Schulstad v. Shulstad, at para. 51)

116The facts that existed prior to 2017 do not change, and it is in order to review them to understand why I have found Justice Gorman’s order to be primarily compensatory in nature.

117 Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order. The first two objectives match the first two objectives set out in s. 17(7).

118I am aware that I am neither setting an original support order nor am I to approach my task as if I were (L.M.P. v. L.S., supra, at para, 50). However, given that Paul seeks to terminate entirely his obligation to support Laurie after supporting her for 23 months following a 29-year marriage, 24 years of which preceded the separation, it is, in my view, necessary to consider the facts that existed when they agreed that Laurie should be receiving spousal support of $1,850.00 per month.

119I note that Paul did not dispute the following evidence given by Laurie.

120The family moved from Sarnia to St. Thomas in 1998 for Paul’s employment with Formet. Laurie gave up her job in Sarnia when the parties moved. After moving to St. Thomas, Laurie stayed home with the parties’ 2 daughters, by agreement with Paul. Once the children were in school, Laurie took a job, working days at Dollarama. After discussions with Paul, Laurie elected to not seek a better job at Formet in the early 2000’s, when new jobs were available, because she and Paul would have had to rely on third-party childcare providers.

121On their separation in February 2013, the parties agreed that, in lieu of paying support, Paul would continue to pay such expenses related to the matrimonial home as the mortgage and taxes, together with maintaining some insurance policies.

122Despite their separation, the parties continued to cohabit in the matrimonial home until December 2013, when Paul moved in with his current partner.

123After leaving, Paul told Laurie that he could no longer maintain her on his benefits through work. She has not had any benefits since then.

124In January 2014, the parties refinanced the matrimonial home. Paul handled the transaction because he had always managed the family finances. The effect of the refinancing was to reduce each party’s equity in the matrimonial home.

125The parties planned to sell the matrimonial home once their daughters finished school, with the equity to be divided equally between Paul and Laurie. While the house was eventually put up for sale and they received a couple of offers, it did not sell. It was a buyer’s market and, according to Laurie, Paul rejected the few offers that they did receive in the belief that they should try to get a higher price than had been offered because he wanted to retire his debts.

126Laurie and the children left the matrimonial home May 2015 after Paul’s payments of the utility bills and, eventually, the mortgage fell into arrears.

127After moving out, Laurie maintained the property by cutting the grass, doing the gardening, and checking the house for insurance purposes. She also cleaned out the house and packed Paul’s personal effects, which their daughters delivered to him.

128Paul continued to pay the expenses associated with the matrimonial home until December 2015, when he stopped doing so. In January 2016, he made a consumer proposal under the Bankruptcy and Insolvency Act, pursuant to which his unsecured creditors were to receive approximately 24% of the amount owed to them. The proposal noted that the matrimonial home was to be sold under power of sale. Paul did not tell Laurie, nor was she notified by his Trustee, of this fact, since she was not one of Paul’s unsecured creditors. Paul excluded from his unsecured creditors his girlfriend’s daughter, to whom he owed $9,000.00, and who he later paid in full.

129On April 25, 2016, the solicitors for the mortgagee sent a Notice of Sale under mortgage to the parties. Laurie testified that she did not believe she received the notice because she was no longer living in the matrimonial home. As a result, the matrimonial home was lost to the parties under power of sale proceedings.

130On June 8, 2016, the mortgagee commenced an action against only Laurie for the balance owing on the mortgage. The claim was for $222,450.19. By the time the mortgagee obtained a default judgment, the mortgage debt owed amounted to $222,923.73 plus $1,255.50 for costs.

131No claim was made against Paul because of the protection afforded him under the Bankruptcy and Insolvency Act for the unsecured portion of the mortgage debt.

132On April 18, 2017, Laurie received notice from the mortgagee’s solicitors that she remained indebted to the mortgagee in the amount of $18,123.31 after disbursement of the proceeds of sale of the matrimonial home. This prompted her to speak to a trustee in bankruptcy about making a proposal of her own. However, when she was told the amount of the payments that she would have to make under the proposal, Laurie concluded that she could not afford them. Instead, she elected to make an assignment in bankruptcy. Even then, she was required to pay $200 per month for 54 months. She will remain in bankruptcy until February 2022.

133As a result of Paul’s proposal and Laurie’s bankruptcy, the parties’ net family properties were never equalized. All of the equity in the matrimonial home was lost.

134Consequently, Laurie was left with no asset base other than the RRSP she had accumulated at Gamble Insurance once she went bankrupt in mid-2017.

135She was clearly economically disadvantaged by the marriage breakdown. Like the payee wife in Schulstad v. Schulstad, supra, Laurie “has a very strong compensatory claim. This was a long-term traditional marriage where she made significant sacrifices for the respondent.” (at para. 55)

Apportionment of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage

136No evidence was called on this issue. Both of the parties’ children are now adults.

Relieving the economic hardship of the former spouses arising from the breakdown of the marriage

137In assessing this factor, I need to first consider the degree, if any, to which the parties are suffering from economic hardship arising from the breakdown of their marriage.

138Both parties continue to reside in 2-bedroom apartments. Neither owns a home and their need to each seek relief under the Bankruptcy and Insolvency Act, albeit by different mechanisms, means that neither is likely to again own a home, especially in the current market.

Paul

139To his credit, Paul has consistently paid his spousal support. He is not in arrears, and I heard no evidence that he ever has been. To his further credit, he moved forward to September 1, 2019 from January 1, 2018 the date at which he seeks to either terminate or reduce Laurie’s spousal support.

140He had no significant debts at the time of trial because he had been denied access to credit under his recently terminated consumer proposal.

141At the time of trial, Paul’s financial assets consisted of his DPSP in the amount of $168,972.85, and his RRSP in the amount of $8,657.13.

142According to Paul’s most recent financial statement, he has monthly expenses of just over $4,000.00, not including spousal support. If one were to include his spousal support payments, Paul’s annual expenses are close to $70,000.00, an amount which he admitted left him feeling “very strapped.”

143He is, however, no longer paying the $300.00 per month under his consumer proposal.

144His expenses are broken down between those that he is personally obliged to pay (other than the spousal support) and an amount that he pays to his girlfriend by way of contribution to joint expenses, such as the rent and a car loan in her name on a vehicle which they own jointly.

145The joint expenses are not shared equally in all cases. For example, the rent on the apartment is $765 per month, of which he pays $500.00. Similarly, he pays $400 of the $464 monthly payment on the jointly owned motor vehicle.

Laurie

146At the time of trial, Laurie had approximately $20,000 in locked-in retirement funds invested with Sun Life. The money was received from her former employer, Gamble Insurance, on its sale, which ultimately led to her job being phased out.

147Laurie also has a pension through her employment at the hospital.

148I was provided with a statement showing that, at December 31, 2019, she had contributed, between 2018 and 2019, with interest, the sum of $3,806.65.

149Based on the information in the document provided, it seems that her 2020 contributions to the pension plan would have been in the range of $3,300.00, meaning that her pension contributions by December 31, 2020 would likely have been close to, but less than, $7,500.00.

150She claims no other significant assets as a result of her bankruptcy.

151In addition to the expenses shown on her Financial Statement, Laurie testified that, because of her support payments, she typically pays between $5,000.00 and $7,000.00 per year in income tax over and above what is deducted from her employment income.

152As a result, she has set up a bank account into which she deposits a percentage of her support payments so that she can pay the taxes. She has recently been told by CRA that because she is paying so much annually over and above what is remitted by her employer, she must pay the additional tax quarterly.

153Paul’s counsel questioned Laurie at length about her financial statements. She suggested that Laurie was hiding assets.

154Some of the matters about which Laurie was questioned were:

a. her failure to include the value of her hospital pension, an amount that Laurie testified she was unaware of when she completed the statement;

b. the unchanging value of several entries over the course of a number of statements, to which Laurie responded that she only made changes when asked by her counsel, and failed to note that other entries might also need changing;

c. her undervaluing by approximately $1,600.00 the value of her locked-in RRSP with Sun Life, an error she acknowledged;

d. her failure to list a bank account which she acknowledged, testifying that it likely contained about $500.00; and

e. her listing of a debt in the amount of $8,000.00 on her most recent financial statement, when the actual value of the debt is approximately $1,200.00, a fact acknowledged by Laurie, attributing the entry to her failure to have diligently updated her entries when asked by her counsel for an updated statement.

155Paul’s counsel vigorously cross-examined Laurie on a number of other matters, making suggestions that she had understated her income in her financial statements, based on entries written by others in collateral documents. Laurie deflected and responded that her income was disclosed in her income tax returns and that she could not account for information provided by third parties, such as HOOPP, which estimated her income for pension purposes.

156Counsel also suggested that Laurie could have obtained payment for her leave of absence for a longer period if she had made a claim under a different government program, but Laurie claimed to know nothing of that, and counsel provided me with no evidence to support her suggestion.

157I am satisfied that Laurie was being candid in providing her evidence on these points. She apologized when acknowledging her errors. She did not seem or appear to be trying to evade the disclosure of her financial circumstances in order to gain an advantage over Paul. This, in my view, is borne out by the fact that she discontinued her claim for increased spousal support.

158I take note that, being bankrupt, Laurie has obligations to keep her trustee apprised of changes in her financial circumstances (Bankruptcy and Insolvency Act, s. 158) , and there was no suggestion that she has failed to do so, which is an offence under the Act. (ss. 198(1)(c): 198(2)).

159As for other suggestions put to Laurie by Paul’s counsel, I also note that counsel called no reply evidence to refute Laurie’s denial of those suggestions.

160Laurie’s Financial Statement sworn September 2, 2021 discloses the Sun Life Mutual Funds referred to earlier in these Reasons, but not her HOOPP pension.

161Paul’s Financial Statement sworn July 13, 2021 discloses the assets I have noted earlier in these Reasons – his DPSP and RRSP.

162Even accounting for the assets not included by Laurie in her Financial Statement, she is far worse off financially than Paul.

163She has no significant asset base on which to build for the future or work towards economic self-sufficiency. She also does not have Paul’s earning capacity.

164Consequently, on all of the evidence, I am satisfied that Laurie suffered greater economic hardship from the breakdown of the marriage than did Paul.

165His actions under the Bankruptcy and Insolvency Act, and, in particular, his failure to notify Laurie that he was allowing the matrimonial home to go under power of sale, which he knew of in advance, ultimately led to Laurie having to file for bankruptcy in order to be relieved of the burden of a default judgment against her based on the covenant in the joint mortgage.

166Having to take on the responsibility of paying the debts of a spouse who has sought the protection of bankruptcy “comes under the category of "economic hardship ... arising from the breakdown of the marriage". (Cantwell v. Cantwell, [2000] O.J. No. 4439 at para. 23)

167As was submitted by Laurie’s counsel, Paul’s actions ultimately deprived Laurie of any opportunity to obtain an equalization payment, thereby economically disadvantaging her, and delaying any chance she might have at moving toward economic self-sufficiency.

Promoting economic self-sufficiency of each party, in so far as practicable, within a reasonable period of time

168In making this the focus of her submission, Paul’s counsel submitted that the post-separation lifestyles of both parties are quite similar. Apart from similar living accommodations, counsel also pointed to each living with an adult child – Laurie with the parties’ daughter and Paul with the adult daughter of his girlfriend.

169Counsel further suggested that, in fact, Laurie was benefitting financially by having the parties’ daughter Jenna reside with her.

170Presumably, Jenna, was assumed by Paul to be paying some of Laurie’s expenses, thereby freeing up money for Laurie (as he pleaded), or Laurie was helping her daughter, thereby suppressing her own income, either intending to maintain an elevated spousal support, or her action having that effect even if not intended to do so, as one of the cases cited by Paul’s counsel suggested.

171Jenna testified, having been summoned to do so by Paul’s counsel. To say that she was not happy to have been dragged into her parents’ court proceeding would be an understatement.

172Jenna is 26 years of age. She is a hairstylist who rents a chair in the salon.

173Her monthly expenses consist of $678 to rent the chair, $480.25 for bookkeeping, GST/HST, and $500-$700 to purchase product for re-sale to clients.

174She testified that, pre-Covid, she was netting approximately $25,000 per year on a gross income of approximately $39,700. She reports her tips on her income tax return. She has no benefits as she is self-employed.

175At the time of trial, she had only worked four months due to Covid 19. She at first received E.I., followed by the Canada Recovery Benefit of $900 biweekly.

176She has driven Laurie to Sarnia in connection with her compassionate leave and admitted that her mother did occasionally pay her for gas.

177She has been residing with her mother since January 2020, when she left a relationship. She expected to be residing with her mother for the next 2 to 3 years. She has been looking for an apartment in St. Thomas, but a two-bedroom currently rents for $2,000.00 per month, plus utilities.

178She does not pay rent to her mother, but they each contribute to the internet and cable bills. They also share the cost of a storge unit at $110.00 per month and divide the cost of groceries when they shop together.

179Laurie has not given her any money while they cohabit. Jenna is responsible for paying her own personal bills like car insurance.

180Paul’s counsel cited T.C.M.W. v. R.K.W., 2020 ONSC 3554, in support of her contention that Laurie is using some of her resources to support her daughter, which she is under no obligation to do, and is thereby hampering her own progress toward economic self-sufficiency.

181The facts in T.C.M.W. v. R.K.W, are very different. In that case, the father was diverting income from a part-time DJ job to his son who lived with him. He claimed it was to help the son become established in the business when what he was really doing was artificially lowering his own income for support purposes.

182There is no evidence that Laurie is handing over money to her daughter and then claiming that she is in worse financial circumstances as a result in order to keep elevated her spousal support payment. The case is clearly distinguishable on its facts.

183In fact, it is my view that the more appropriate response to the submission of Paul’s counsel on this point is that made by Justice D.J. Gordon at paragraph 158 of Toth v. Toth, 2015 ONSC 1174, where he wrote: “It would not be appropriate to reduce spousal support due to the use of [a parent’s] premises by adult children” who have modest incomes and who are paying their own bills.

184By contrast to the situation with Laurie and Jenna, Paul’s girlfriend’s daughter, like her mother, is a contract employee who also works at Formet, earning approximately $40,000.00 to $45,000.00 per year. She contributes only $200.00 per month to the trio’s expenses, which is applied toward payment of utility costs.

185Paul’s counsel submitted that, because Laurie’s income from employment alone now exceeds the total of her income from both employment and spousal support in 2017, she is economically self-sufficient and no longer requires support.

186In fact, Laurie agreed that her 2020 income, alone, covered her expenses for the year, but she described 2020 as being an “extraordinary” year.

187Laurie’s counsel, on the other hand, submitted that her client was far from being economically self-sufficient. She claimed that to focus solely on Laurie’s income was too narrow, and that her entire “condition, means, needs and other circumstances” must be considered.

188She then pointed to her client having the benefit of a compensatory support order, suggesting that it ought not to be lightly tossed aside.

189She further submitted that having an increased income is not of much use to a person who cannot make use of it because she is in bankruptcy, having no access to credit which would allow her leverage that income to improve her circumstances.

190Laurie’s Financial Statement sworn September 2, 2021 indicates that she has a monthly employment income of $3,283.64 before deductions, and monthly expenses of $4,171.91, suggesting a monthly shortfall of $888.27. When spousal support is added, Laurie’s Financial Statement shows a surplus of approximately $1,000.00 per month.

191Paul’s Financial Statement sworn July 13, 2021 shows him having an estimated 2021 monthly income of $5,416.67 against expenses of $4,070.21, or a monthly surplus of $1,346.46.

Analysis and Conclusions on Issue #2

192My response to Paul’s claim that his spousal support obligation should have ended on September 1, 2019, is best captured in this paraphrasing of the conclusions of the Court of Appeal in paragraph 51 of its decision in Schulstad, v. Schulstad: The evidence establishes that the initial compensatory basis for Laurie’s entitlement to support continue to exist. The disparity in the parties' potential incomes and income-producing assets is indicative of Laurie suffering economic disadvantage arising from her role during the parties' long-term marriage and its breakdown. In contrast, Paul gained a significant economic advantage from the marriage that has not been affected by the marriage breakdown. A finding that Laurie is no longer entitled to support would undermine the objectives under s. 17(7) of the Divorce Act.

193I also adopt the following comments of Justice Metivier in Petrocco v. Michalofski, [1998] O.J. No. 200, a case where the payor husband had sought to terminate support because his wife had secured employment:

11… In my view, it is not the intent of the legislature that as soon as a spouse begins to make significant efforts at self-sufficiency, those efforts should be rewarded by immediately reducing that spouse's lifestyle to one which is the most modest possible. This might well interfere with the motivation to achieve complete economic self-sufficiency. Prematurely eliminating spousal support may, in such a situation, be contrary to the legislative objectives…Further, self-sufficiency must be defined not only in the context of the dependent spouse's current means but in that of the dependent spouse's ability, education, experience and reasonable expectations as a result of the roles adopted during marriage and in the context of the lifestyle enjoyed by the spouses during their marriage, to the extent that is possible. (Appeal dismissed at [1998] O.J. No. 5135 (Div. Ct.))

194I prefer the approach taken by Justice R.D. Gordon in Mechefske v. Mechefske, [2009] O.J. No. 2004 about a “quite industrious” support recipient wife who was “likely to find work on a consistent basis in the future”. He had “little difficulty in determining that she continues to be in need of support” in circumstances where her financial statement indicated that she had a monthly surplus after factoring her monthly spousal support.

195Clearly, in my view, this is a case where Paul has a continuing obligation to pay spousal support to Laurie.

196However, Laurie is making valiant efforts at achieving economic self-sufficiency. In doing so, she has confronted the challenges of working in an environment where Covid-19 posed a risk to all employees, then was required to lose time at work in order to care for two aged, very ill parents. Yet, even in the face of those challenges, she is succeeding. She is working hard and taking on as many hours as she can.

197Laurie has shown a strength and resilience in the face of financial adversity which are admirable.

198However, there are financial consequences of her making the effort to obtain economic self-sufficiency. Generally, as Laurie’s income increases, Paul’s support obligation decreases. I find, however, that it is too early to terminate Laurie’s spousal support, given the nature of the original order.

199In setting support, I began by analyzing the amount that the parties agreed on when they settled in 2017.

200Using DivorceMate, I determined that spousal support of $1,850.00 fell between the SSAG mid-range figure of $1,751.00 per month and the high value of $1,957.00 per month. That suggests that the parties had agreed that Laurie was entitled to a slightly higher spousal support payment to reflect the compensatory nature of the support order.

201The resulting payment provided Laurie with 48.7% and Paul with 51.3% of the parties’ net disposable incomes.

202Using those same percentages for the years 2019, 2020 and 2021, with the parties’ input incomes being as set out in Paragraphs [78], [79] and [96] (Paul) and Paragraphs [100] and [103] (Laurie) hereof, yields the following SSAG monthly spousal support payments:

2019: $1,682.00

2020: $1,467.00

2021: $1,116.00

2022

203For 2022 onward, until there has been another material change in circumstances, I am setting Laurie’s income for support purposes at $36,500.00 and Paul’s income for support purposes at $72,000.00 (which is less than the three-year average ($75,932.72) of Paul’s income in 2019, 2020 and 2021). I have reduced to amount below the average to account for the prospect of less or no RRSP income for Paul in 2022.

204This yields ongoing a SSAG monthly spousal support commencing January 1, 2022 in the amount of $1,270.00.

Findings as To Support

205Consequently, I make the following findings:

For the period between September 1, 2019 and December 31, 2019, Paul’s monthly spousal support obligation to Laurie was $1,682.00.
For 2020, Paul’s monthly support obligation to Laurie amounted to $1,467.00.
For 2021, Paul’s monthly support obligation to Laurie amounted to $1,116.00
For 2022 onward, until there is another material change in circumstances, Paul’s monthly support obligation to Laurie will amount to $1,270.00.

Order

206For the reasons noted herein, I make the following order:

For the period between September 1, 2019 and December 31, 2019, the Respondent, Paul Shortt shall pay to the Applicant, Laurie Ann Shortt, monthly spousal support, payable on the first day of each month, in the amount of $1,682.00.
Commencing January 1, 2020, and on the first day of each month thereafter for the year 2020, the Respondent, Paul Shortt shall pay to the Applicant, Laurie Ann Shortt, monthly spousal support in the amount of $1,467.00.
Commencing January 1, 2021, and on the first day of each month thereafter for the year 2021, the Respondent, Paul Shortt shall pay to the Applicant, Laurie Ann Shortt, monthly spousal support in the amount of $1,116.00.
The overpayment of spousal support by the Respondent, Paul Shortt to the Applicant, Laurie Ann Shortt, for the years 2019, 2020 and the months of January to November 2021, inclusive (assuming the reduced amount of ongoing spousal support for 2021 as determined herein begins to be paid on December 1, 2021), amounts to $13,342.00.
Commencing January 1, 2022, and on the first day of each month thereafter for the year 2020, the Respondent, Paul Shortt shall pay to the Applicant, Laurie Ann Shortt, monthly spousal support in the amount of $1,270.00.
Unless the parties agree otherwise, the overpayment of spousal support owed by the Applicant, Laurie Ann Shortt, to the Respondent, Paul Shortt, as a result of this order shall be paid as follows:

a. First: from any tax refund that the Applicant, Laurie Ann Shortt, receives as a result of re-filing her income tax returns for 2019, 2020 and, if necessary, 2021;

b. Second: from any monies remaining from the funds which the Applicant Laurie Ann Shortt has set aside in a bank account for the payment of her income taxes for 2021 on the assumption that she would be declaring spousal support of $1,850.00 per month rather than $1,116.00 per month, but only after she has paid her taxes for 2021 in full; and

c. Third: commencing the first day of the month following the payments made under paragraphs 6a and 6b, but not before March 1, 2022 in any event, the balance shall be paid at the rate of $100.00 per month until the overpayment is repaid in full.

The parties shall continue to exchange their income tax information, including their complete income tax returns, all schedules and Notices of Assessment, annually, by May 15, commencing on May 15, 2023.
Except as modified by this order, the order of Justice Gorman dated October 23, 2017 remains in full force and effect.
Counsel shall submit written submissions on costs, not to exceed 5 pages, Times New Roman 12-point font at a line spacing of 1.5, together with their Bills of Costs and any Offers to Settle, to the Trial Coordinator at St. Thomas within 21 days of the date of this order. Replies of no more than 3 pages, with the same font and spacing requirements, may be filed within a further 7 days. In their submissions, each party shall indicate what they believe to be a reasonable amount of costs that should be paid by their client to the other party should the court determine the other party to have been the more successful party in the trial.

Justice T. Price

Released: November 3, 2021