COURT FILE NO.: FS-20-18542

DATE: 20211108

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

D.A.S.

Harold Niman, Richard Niman, and

Karen Law, for the Applicant

Applicant

– and –

P.S.

Bryan Smith, for the Respondent

Respondent

HEARD at Toronto: September 20, 21,

22, 23, 24 and October 5, 2021

REASONS FOR JUDGMENT

C. HORKINS J.

A. INTRODUCTION

[1] This is a review of child and spousal support that the Applicant (“father”) has been paying the Respondent (“mother”) pursuant to a Separation Agreement dated April 27, 2012.

[2] The parties began to cohabit in May 1995. They were married on May 19, 1996 and separated on July 30, 2010. They have three children ages 21, 19, and 16. The 21- year-old (“BCS”) has special needs. BCS was born on […], 1999; AKS was born on […], 2002; and JLS was born on […], 2004.

[3] The Separation Agreement required the father to pay monthly child support of

$5871, 80% of the after-tax cost of s. 7 expenses, and monthly spousal support of $6270. This support was non-reviewable until the spring of 2013.

[4] The review of child and spousal support as provided in the Separation Agreement did not take place until the trial, more than nine years after the parties signed the Separation Agreement.

[5] The review will consider the following questions:

1. Should the review of support be retroactive to July 1, 2013, to some other date, or should support be varied going forward?

2. Should spousal support be terminated and if so, when?

3. Has the mother complied with her obligation to become self-sufficient as set out in the Separation Agreement?

4. Did the father engage in “blameworthy conduct” and if so, what flows from this conduct?

B. POSITION OF THE PARTIES

[6] It is the father’s position that neither party took any steps to meaningfully conduct a review of support as set out in the Separation Agreement. As a result, he states that they have effectively waived their right to a review as of July 1, 2013.

[7] While the father states that the mother is underemployed, it is his position that her income and net worth enable her to be self-sufficient. He seeks an order terminating spousal support as of June 30, 2018.

[8] The father does not seek a retroactive adjustment for any overpayment or underpayment of child and spousal support. However, he seeks reimbursement of

$44,528.56 from the RESP for the first, and second year university expenses that he paid for the second child and seeks an order adding him to the children’s RESP accounts.

[9] Going forward, the father asks that child support reflect the change in the parenting schedule. For 2021, child support should be based on the father’s income of $576,000. An income of $390,000 should be imputed to the mother. This consists of $80,000 of employment income and $310,000 of investment income.

[10] The mother seeks a retroactive variation of child and spousal support to July 1, 2013 in the amount of $1M. She also seeks $33,855 that she says the father owes for his share of past s. 7 expenses.

[11] Given the special needs of BCS, the mother states that spousal support should not be terminated. It is her position that entitlement to spousal support continues.

[12] Going forward, the mother’s position is that child support and spousal support should be based on the father’s income of $576,000 and her imputed income of $145,752.

Section 7 expenses should be shared (68.1% and 31.9%). Effective October 1, 2021, she seeks monthly child support of $6208 based on the current parenting schedule. She also seeks monthly spousal support of $7019.

[13] Each party argues that the other is not a credible witness. They submit that the other was evasive, combative, and/or argumentative during the trial. The mother also argues that the father misled the mother and misled the court (this is a serious allegation that I reject as explained in these reasons). The parties ask the court to prefer their evidence. These submissions are surprising and unjustified.

[14] Most of the evidence was uncontested. A lengthy agreed statement of facts was filed. The parties cooperated in reaching this agreement. The father’s expert accounting evidence was not challenged by a responding expert. Most of the substantive facts were agreed upon before trial. On occasion, the parties did not answer the question put to them, or they answered and then supplemented with evidence that went beyond the question. Neither party was combative or argumentative. This case primarily focuses on what flows from the facts.

[15] A court can accept all or some of a witness’s testimony. I have rejected some evidence as set out in these reasons. Like many, the parties are very committed to their view of what should happen going forward and the orders that this court should make. They have different views and respectfully advanced these views in their evidence at trial.

C. THE FACTS

[16] The facts as I find them are set out in these Reasons. As noted, many of the facts were agreed to before trial.

i. The Separation Agreement

[17] The parties signed a comprehensive Separation Agreement dated April 27, 2012. The father was represented by Richard Halpern and the mother was represented by Philip Epstein. The following provisions of the Separation Agreement are relevant to this review. The parties did not always follow this Separation Agreement as explained in these Reasons.

[18] Under the Separation Agreement the parties agreed to joint custody and a parenting schedule. Section 4.8 states that the parents “will make important decisions about the children's welfare together.” If they cannot agree, they will jointly retain a mediator.

[19] For the purpose of determining child support, s. 5.2 states that the father’s income is $370,792 and the mother’s income is nil. Section 5.4 states that “[e]ffective January 1, 2011, and continuing on the 1st of each month thereafter, [the father] will pay to [the mother] … $5,871 per month, as base child support; and 80% of the after-tax cost of the

children's special or extraordinary expenses … with [the mother] to pay the remaining 20%.” Section 5.5 lists the children’s “current” s. 7 expenses.

[20] Section 5.6 set out a process for payment and reconciliation of the actual after-tax cost of the s. 7 expenses as follows:

5.6 The monthly payments contemplated under paragraph 5.4(a) above shall be provided once yearly by way of post-dated cheques. The payments contemplated under paragraph 5.4(b) shall be provided by way of post- dated cheques, where the cost of the expense can be readily ascertained in advance. The parties shall meet each May, commencing 2012, to address a reconciliation of the actual after-tax cost of the s. 7 CSG expenses (following any medical/dental plan reimbursement) incurred the previous calendar year, to determine whether [the father] has made an overpayment or underpayment on account.

[21] The parties did not follow s. 5.6. They did not meet “each May, commencing 2012, to address a reconciliation of the actual after-tax cost of the s. 7 CSG expenses (following any medical/dental plan reimbursement) incurred the previous calendar year, to determine whether [the father] has made an overpayment or underpayment on account.”

[22] Section 5.9 and 5.10 deal with the review of child support:

5.9 For the period to and including 5.8 above, the child support provisions herein are non-variable to July 1, 2013 unless one of the parties experiences a catastrophic change in their financial circumstances.

5.10 The child support provisions will become reviewable in the spring of 2013 and will determine the level of child support payable, effective July 1, 2013. The parties will make disclosure at least three months before the scheduled review date and the disclosure will include all of the relevant material required under the Child Support Guidelines and any other reasonable request. The child support provisions of this agreement will continue until this review has been completed with right of the court to retroactively adjust the child support back to July 1, 2013.

[23] While child support was “reviewable” as of July 1, 2013, the parties never scheduled a “review date” and no review happened until this trial. The father has continued to pay the child support amount set out in the Separation Agreement.

[24] Section 5.11 deals with the children’s RESP accounts, the value of each account as of December 31, 2010, and an agreement to jointly share in this benefit when assigning the parties’ respective financial obligations for the costs of each child's post-secondary education expenses. Going forward, each party receives sole credit for what each party contributes. The parties have not followed s. 5.11. The father has paid for post-secondary

expenses for the second child and has not been reimbursed from the RESP account. He has made 100% of the RESP contributions since the Separation Agreement was signed.

[25] Section 6 deals with spousal support. This section provides that the father will pay

$6270 a month effective January 1, 2011 and acknowledges that he had paid this amount since this effective date. The issue of review is set out in ss. 6.3, 6.4, and 6.13 as follows:

6.3 The payments contemplated in paragraph 6.1 above shall be non- variable to and including July I, 2013, pending a catastrophic change in either party's financial circumstances, subject to paragraph 6.15.

6.4 The spousal support provisions of this Agreement shall be reviewed in the spring of 2013 in accordance with paragraphs 5.10 and 9. The parties acknowledge that by the spring of 2013, [the father] will have paid spousal support since July 30, 2010, ie: since the parties separated. The review of spousal support shall determine the quantum and duration of spousal support from July 1, 2013. Pending such a review, [the mother] agrees that she shall make reasonable efforts based on her vocational background, educational background, and child care responsibilities (based on the children's needs and any care assistance which [the mother] receives) to become financially self-sufficient. The spousal support provisions of this agreement will continue until this review has been completed with right of the court to retroactively adjust the spousal support back to July 1, 2013.

6.13 [The mother] knows that she must contribute to her own support and will make reasonable efforts to support herself. She will make reasonable efforts to find a job or become self- employed.

[26] Section 6.5 states that the father has also paid monthly spousal support of $4129 from August 1, 2010 to December 1, 2010.

[27] The father made some effort to proceed with the review of support as explained below. The mother did not seek any review of support until she filed her Answer in this Application on October 8, 2020.

[28] The father has continued to pay child and spousal support every month.

[29] Section 9 provided for “Dispute Resolution” and states:

9.1 If [the parties] disagree about a reviewable or variable term of this Agreement, they will try to resolve the dispute through negotiation, either between themselves or with their respective counsel. This term includes, but is not limited to, the child and spousal support review contemplated to occur in the spring of 2013 and to be effective July 1, 2013.

9.2 The parties will agree on the mediator, and failing agreement, either party shall be at liberty to have the individual named by the Court on an application.

9.3 The parties will share the costs of mediation on an equal basis.

9.4 lf [the parties] cannot resolve an issue that has been the subject of mediation, either will be at liberty to commence a Court application.

[30] The parties did not comply with the Dispute Resolution section.

[31] Finally, ss. 10 and 11 deal with property. The father paid the mother equalization of $1,564,801. It was acknowledged that the mother is the sole owner of the matrimonial home and “shall continue to own the home.” She assumed sole responsibility for the joint line of credit secured against the home in the amount of $153,000.

ii. Parties Education and Employment

[32] Both parents are highly educated. The father is a chartered accountant. He has a

B.A. in economics from York University and an MBA from the University of Toronto. The mother has a B.A. in economics from Western University and an LLB/MBA from York University – Osgoode Hall Law School and the Schulich School of Business.

[33] The father’s ability to earn income, both during the marriage and post-separation, was never compromised due to the role he assumed during marriage and after separation. He has had success in his career and this success continues. The father’s parenting responsibilities have not interfered with his success. The father’s ability to assist with care of the children during the marriage and post-separation was limited by his work and travel commitments.

[34] The father was the past president and CEO of Varicent Software (“Varicent”), a global provider of sale performance management solutions that was acquired by IBM in 2012. He has a proven track record of success in delivering a strategic vision. The father is the current CEO of Blueprint Software Systems.

[35] After law school, the mother began her articles at Goodman and Carr in 1996. From there she went to work at CIBC Mellon, where she worked in the Trust department. This department provided debt financing for companies that were raising money and acted as the trustee. The mother chose this job because she thought it was an environment that would allow her to manage work and raise a family.

[36] When the first child was born in […] 1999, the mother took a six-month maternity leave and then returned to work full-time. The mother worked 9am-5pm. After the second child was born in 2002, the mother took a 12-month maternity leave. In February 2003, the mother returned to work at CIBC Mellon on a part-time basis. She worked in marketing and later compliance.

[37] The mother had a nanny until June 2019.

[38] The mother left CIBC Mellon in August 2004, a few months before the third child was born. By this point the mother was busy dealing with the special needs of BCS. When BCS turned one, it was apparent that he was not meeting the typical milestones for his age. Concerns about his development continued. Over time he was diagnosed with mild cerebral palsy, Autistic Spectrum Disorder, and an intellectual disability (mild range).

[39] After two years at home, the mother decided to return to work. She felt it was important for her to work, but she needed to find a job that gave her flexibility to deal with BCS’s special needs.

[40] In 2006, the mother started to work three mornings a week for a friend who had started a call center in her basement. The mother handled a variety of tasks to help set up the business. Her income was the equivalent of about $20,000 a year.

[41] From January to August 2007, the mother worked three days a week, from 9am- 5pm, in the legal department at CIBC Mellon. She worked on a project cleaning up old agreements. However, she found that managing this job and the needs of BCS was tricky. The mother was working downtown and tried to book BCS’s therapy and medical appointments when she was not working. This was not always possible and if issues came up with BCS at school, the mother had to handle it. The father was busy at work and often travelling.

[42] In October 2007, the mother started to work for a sole practitioner 3-4 mornings a week. She worked on wills and estates, and she assisted the sole practitioner who was ill. This job ended in June 2009 when the lawyer died.

[43] The mother did not work again until November 2010 when she started to work for Debtcare Canada (“Debtcare”). She continues to work at Debtcare today. Debtcare is a small company that assists people who are struggling with debt and who need assistance. Until recently the mother’s salary has been 100% commission based. The mother’s hours at this job have always been flexible. On average, she works 20-25 hours a week.

[44] In 2010, when the mother started at Debtcare, BCS was 11 years old and attended the local public school. The mother took BCS to school and then went to the office. She left work as needed to take BCS to an appointment. Typically, the mother arrived at work at 9-9:30am and left around 2pm if she had to take BCS to an appointment. At work, the mother would take calls from potential clients and if the call resulted in a retainer, the mother would help that client and earn a commission. The mother rarely took calls from potential clients at home because her evenings were filled with helping BCS.

[45] The children have spent their summers at overnight camp. In recent years, BCS has attended camp every summer for 7 weeks as a staff member. As a result, the demands of BCS did not interfere with the mother’s ability to work during the summers.

[46] The mother has never hired a head-hunter to help her look for a job. On one occasion around 2017, she sent her resume to a company when a friend asked that she do so. This was a part-time job that paid around $40-60K. Nothing further happened with this potential job. She has not sent her resume to any other potential employers since this occurred. She has not searched for jobs on her own, nor has she applied for any employment since the Separation Agreement was signed. She has remained at Debtcare because this job gives her the flexibility that she says she needs to manage the needs of BCS. The mother maintains her licence to practice law. Her Linkedin profile as of September 29, 2021 describes her position at Debtcare for the past 11 years as “Financial Restructuring Specialist; Senior Legal Counsel.”

iii. The Special Needs of BCS

[47] There is no dispute that BCS has special needs and that these needs have been and continue to be primarily managed by the mother. BCS’s ongoing need for child support is not disputed. The issue is whether BCS’s special needs have limited and continue to limit the mother’s ability to earn more income, and whether the special needs justify her request for ongoing spousal support.

[48] BCS has made tremendous progress over the years. The mother has devoted considerable time and effort to manage her son’s needs and provide him with the help he requires. While the father was less involved over the years, he too has played a role in helping his son succeed. The parents have always acted in BCS’s best interests. Today, they have different views on what BCS needs and what he might achieve. One view is not better than the other. Either way they agree that BCS cannot live independently.

[49] During his childhood, BCS was followed by the staff at the Holland Bloorview Kids Rehabilitation Hospital (“Holland Bloorview”) and underwent psychological assessments in 2007, 2012, and 2018. BCS has cognitive, developmental, and intellectual disabilities and learning disabilities. His academic abilities fall within the grade 3-4 level.

[50] The mother took steps to set up a team to support BCS. From 2001 until 2016, BCS had speech therapy at home once a week. At home, the mother worked with BCS to help him speak with clarity and this support continues today.

[51] BCS was slow to walk. In 2001, he started therapy at Footprints Therapy (“Footprints”) to help address his fine and gross motor skills. Until 2015, BCS attended this clinic weekly for physiotherapy and osteopathic therapy. Since 2015, BCS has continued the therapy. The number of visits a year have ranged from 13 to 17. In 2020, there were 12 appointments.

[52] From 2007 to 2021, the mother took BCS to OrthoProActive Consultants Inc. (“OrthoProActive”) for bilateral serial casting. They have been fitting BCS with various orthoses for his leg. BCS continues to wear special orthotics, gait plates, and leg braces below the knee.

[53] From 2016 to 2018, BCS attended Surrey Place, an organization that assists children with intellectual disabilities. Surrey Place also offered counselling for parents. Regular appointments ended in 2018.

[54] BCS has been followed by Dr. Robert Munn, a neurologist, since 2002. He sees Dr. Munn 2-3 times a year. This doctor manages BCS’s medications (Ritalin and Concerta).

[55] During his childhood years, BCS attended several treatment programs, mostly at Holland Bloorview. The mother scheduled BCS’s appointments and took him to each one.

[56] In 2003, BCS began weekly occupational therapy with Sherri Cooperman to work on his fine and gross motor skills. Later, the focus of the therapy shifted to life skills. The mother attended the sessions so she could learn how to continue the therapy at home.

[57] BCS attended a Nursery Play and Learn program in 2004 every morning, Monday to Friday. This was an integrated nursery program with special education teachers and various therapists.

[58] After the nursery program, BCS attended junior kindergarten at the neighbourhood school every morning. In the afternoons, BCS attended a program at the local synagogue. The goal was to keep him busy and exposed to integrated social skills.

[59] During the school year, it took BCS longer to learn and he required tremendous repetition with visual cues. The mother explained that she became the child’s caseworker and advocate. She scheduled and took him to all his appointments. After school, she sat with him and reviewed what the teachers had taught that day. The mother also attended courses at the Geneva Centre for Autism to help her support BCS.

[60] When grade one started so did the homework. Every evening, the mother spent time with BCS re-teaching him what had been taught that day at school. Over the years, she kept in touch with the teachers at his school and continued to help him at home with schoolwork.

[61] BCS repeated grade 1. The gap between him and his peers was becoming larger and more noticeable. The parents struggled to find a balance between BCS’s schooling, treatments, therapy, and the need to allow him to be a child.

[62] BCS has some behavioural issues that can be highly concerning. At times, he has trouble controlling his impulses. For example, when BCS entered grade 7 he started reaching out to girls, texting inappropriately, and connecting online with women inappropriately. The parents took BCS’s cell phone away from him because he was using it to harass people online. BCS’s behaviour has resulted in threats involving the police. The evidence is that these issues arose between 2014 to 2017. There is no evidence that this behaviour has continued.

[63] In 2017, Scott Barter was retained to help BCS with his impulsivity. Mr. Barter is an addiction counsellor and works with people who have impulse disorders. He was recommended to the mother by Dr. Altay, a child psychologist who was treating BCS. On consent, Mr. Barter testified solely to provide evidence of his involvement with BCS and his observations of BCS over time. He did not testify as a participant expert. He previously saw BCS weekly and now sees him once every other week.

[64] At times, BCS is unable to exercise good judgment. He has some trouble controlling his impulses when eating and will, for example, overindulge in eating cheese. BCS also has difficulties understanding the value of money and what things cost, and this has caused him to make poor decisions when buying items. Further, his hygiene has and continues to be a problem. He must be reminded to shower and change into clean clothes.

[65] In 2015, occupational therapy with Ms. Cooperman ended because Ms. Cooperman was no longer available.

[66] In 2016, when BCS was in grade 10, Bayley Tepperman was hired to tutor BCS once a week. Ms. Tepperman testified about the tutoring support she provides BCS and what she has observed. She was not a participant expert. During high school, the focus was on academic support and the weekly tutoring sessions were at BCS’s home.

[67] When BCS started high school, the school board provided bus transportation and the mother did not have to drive him to and from school every day. She picked him up at school if there was an appointment to attend.

[68] BCS completed high school in June 2019 in the Special Education program with applied level courses. BCS finished high school two years later than his peers. The mother was instrumental in ensuring that BCS succeeded and was able to graduate from high school with his diploma.

[69] Throughout the school years, BCS had numerous accommodations to help with his special needs. He learned at a different level and was tested on smaller amounts of information. He usually had a scribe or an oral dictator, and he often wrote his tests in a small room. On tests, he could have fewer questions or modified questions. Some of the high marks that BCS has achieved reflect the fact that he had considerable assistance at high school and at home.

[70] During the high school years, the mother focused on developing BCS’s independence. In consultation with the teachers, including the special education teachers, the mother tested when she could step back from helping BCS at home. She helped him organize his tasks and create an agenda. The mother tried not to help BCS do the tasks or remind him what had to be done. When she stepped back “everything fell apart.” She found that BCS would be in his room but would not do some or all of his schoolwork. BCS would get frustrated with the work when left alone. Throughout high school, the mother and teachers were always trying to test BCS’s ability to work on his own, once he was

organized. They were continually trying to build his ability to be independent. However, with Math and English the mother did not step back because BCS simply could not do the work if left alone.

[71] BCS obtained his grade 12 diploma and stayed for a second year in grade 12 before leaving high school. During this second year, the mother, teachers, and tutors focused on stepping back for longer periods of time. Since marks did not matter during this second grade 12 year, it was a good opportunity to see if BCS could function more independently. The mother was not allowed to help with any of the school assignments. Unfortunately, without assistance, BCS really struggled, especially with his academics. BCS would not get work done or it would not be fully completed, and he would not understand questions. BCS would also get stuck on tasks, and he would give up if he hit a wall.

iv. 2018 Psychological Assessment Report

[72] Before BCS turned 18 years old, Holland Bloorview arranged for an updated evaluation of BCS’s abilities. This was done to assist in the transfer of his care to adult services at the Toronto Rehabilitation Institute (“Toronto Rehab”) and for his post- secondary education.

[73] Although they shared custody of the children and agreed to make important decisions about the children together, the mother never told the father that this assessment was being done. The father did not become aware of this 2018 assessment until it was produced in this application.

[74] The March 13, 2018 Psychological Assessment Report prepared by Dr. Hansen is the most current assessment of BCS’s needs and abilities. This report, which was filed on consent, provides the following evidence that is accepted as fact.

[75] Physically, BCS’s motor functioning “continues to be mildly impacted by his cerebral palsy.” He walks independently with the support of bilateral ankle-foot orthotics. He is physically active and plays several sports.

[76] During high school, most of BCS’s courses were taught in the resource room by a special education teacher with integration into the regular stream for elective courses. His Individual Education Plan gives him shared access to five hours of direct instruction a week and accommodations for all subjects.

[77] The report states that BCS has done “remarkably well in many areas despite his challenges.” His teachers describe him as a “persistent and hard-working student who displays excellent leadership qualities in areas of interest to him.”

[78] The report states that outside of school BCS has been involved in many community programs, generally with typically developing peers. The report acknowledged BCS’s part-time referee job, his summer job at camp, and his participation in a number of

therapeutic and life skill programs at Holland Bloorview, which target cooking and budgeting. He was a “highly motivated young man who was an active participant in these programs.”

[79] The report notes that in elective courses, such as Nutrition and Health, Recreation and Fitness Leadership, Transportation Technology, and Personal Fitness, BCS’s marks have generally ranged from the 70’s to high 80’s. After the report was written, BCS’s marks improved in those courses and he finished the semester with marks in the 80’s to low 90’s. In Transportation Technology, BCS’s final grade 12 mark was 91%. The teacher’s comments were that BCS “completely demonstrates the employability skills required for success in the workplace.”

[80] In English and Math, BCS has struggled more. At the time of the report, he had marks of 70 and 65. However, BCS finished the semester with a 70 in both subjects. The report noted that BCS’s tutors and his mother have consciously stepped back in the support they provide, to try and facilitate greater independence. This has had a “notable impact on [BCS’s] ability to succeed.”

[81] During the two-day assessment, BCS “presented as a very friendly and enthusiastic young man, who easily established comfort and rapport with the examiner.” BCS was “very socially engaged”. He shared stories with the examiner and participated in reciprocal conversation. He “appeared to easily understand task instructions and worked without requiring breaks.” BCS required “occasional reminders to take his time on certain tasks as he tended to rush through items”. Overall, he was a “pleasure to work with, and was cooperative with all activities presented.”

[82] The Assessment Report reviews BCS’s cognitive, memory, and academic abilities and his adaptive functioning.

[83] The cognitive tests were consistent with past assessments. BCS’s full-scale IQ remains in the “Extremely Low range at the 0.1 percentile.” The report notes that this may be a slight underestimation of BCS’s true cognitive potential, “given his impulsive approach to some of the tasks”.

[84] BCS’s memory skills were significantly higher, especially in the verbal area where he now falls in the 27th percentile or the average range. BCS benefits from repetition and can remember verbal information better if broken up into chunks and repeated. His visual memory skills while improved are still in the low average range. Finally, his general memory skills (working memory) have not improved. This involves the ability to store information in his mind while manipulating it (i.e., completing a mental math problem and re-organizing a series of digits in his head). Consistent with prior testing, BCS is in the 1st percentile.

[85] For academic achievement, BCS performs well below his age but has made “steady progress” since the 2012 assessment. No supports were available during the

testing. The report notes that BCS is “likely capable of achieving at an even higher level in a supported classroom environment.” In reading, he is at a late grade 4 level. In phonetic decoding, he is at a grade 2 level. Oral reading fluency has improved from a grade 2 level to a grade 5 level. Because BCS often reads quickly, he sacrifices accuracy for speed, and this brought his accuracy score to the .3 percentile. BCS has made steady gains in math and is at a mid grade 4 level for reasoning and a mid grade 3 level for paper and pencil calculation. His writing skills are at the 2nd percentile. He made numerous errors.

[86] BCS’s adaptive skills were evaluated to capture everyday skills, such as communication, self-help, domestic skills, and socialization. The report states that compared to his cognitive skills, the adaptive skills are much better developed. There are many areas of strength and BCS has made remarkable progress. Overall, his adaptive skills are in the low average range (13th percentile from the previous 2nd percentile). His social and communication skills are strengths. Self-care skills are age-appropriate, but his functioning within the community is weaker. He does not use GPS to find directions and he does not use a bank machine or credit card.

[87] In summary, this assessment confirmed that BCS continues to have a mild intellectual disability. The report states that BCS’s progress is encouraging and post- secondary education at a college may be a reasonable goal for him.

v. BCS’s Current/ Recent Special Needs

[88] To appreciate the demands on the mother it is helpful to focus on BCS’s current abilities, needs, treatments, and therapies. His mother continues to schedule appointments and take BCS where he needs to go. The exception is school and therapy with Mr. Barton. On these occasions BCS travels on his own using public transportation.

[89] When BCS turned 18 years old, his care was transferred from Holland Bloorview to Toronto Rehab. BCS attends a Life Span program at Toronto Rehab. In both 2019 and 2020, he had five appointments. To date he has had five appointments in 2021.

[90] Dr. Munn, who monitors BCS’s medication, sees him 2-3 times a year. BCS has appointments at Footprints an average of 12-14 times a year. BCS attends OrthoProActive 2-3 times a year for his various braces and orthotics.

[91] BCS now sees Mr. Barter once every other week and he travels to the appointment on his own.

[92] BCS continues to meet with his tutor, Ms. Tepperman, once a week. This is now being done on Zoom because it is no longer convenient for Ms. Tepperman to see BCS at his home. There is no evidence that BCS requires his mother’s help to log into Zoom for this tutoring session.

[93] The mother says that her days are often filled with appointments for BCS or dealing with his issues. This may have been accurate in BCS’s very early years. The mother’s records show that in 2018, 2019, and 2020, BCS had on average 3 appointments per month at Footprints, Holland Bloorview, Toronto Rehab, and OrthoProActive. In fact, according to the mother’s appointment records, since separation, the frequency of these appointments never exceeded this average. There has been a total of 15 appointments in 2021.

[94] When BCS entered high school, he took a school bus to and from school. In college he travels on the TTC independently. After high school, BCS attended a full-time vocational program at George Brown College in downtown Toronto. This was a program for young adults with special needs. BCS travelled to and from the college on his own using the TTC. Records from this one-year program were not provided during the trial. BCS successfully completed this one-year vocational life skills program. There is no evidence that the mother had to assist BCS with the work that he did in this program. During this year, the mother had more time to devote to work and her income increased.

[95] As of September 2021, BCS is enrolled in a two-year Recreation and Leisure program at Humber College. Due to Covid, only one class is taught in person this term and the rest of the courses are taught online. The mother took BCS on a TTC trial run so he would be familiar with the route to Humber College. The first day that BCS traveled on his own he left home at 7am for a 10am class. BCS missed the bus stop and instead of getting off and waiting for the next bus to take him back, he stayed on the bus, rode the route all around and got off at the correct stop the second time. He has learned the route and now travels to school on his own.

[96] The Humber program was chosen because this is BCS’s favourite area. In the first semester, he is taking six courses. Unlike high school, BCS is expected to pass each course at the same level as the other students. Extra time for tests is provided but the course is not modified for BCS.

[97] The mother explained that getting BCS’s schedule organized was “incredibly stressful.” At the beginning of the program, students were given a list of all the dates for assignments and tests in every course, and they were expected to create their own calendar for the semester. The mother left BCS alone to create his schedule. When she checked what he had done, she saw that BCS had not recorded several dates in his schedule. As the mother explained, if no one is checking his work he is not set up for success.

[98] BCS can log on for his Zoom classes without help. The mother does not know how he is doing. She wonders how much he is comprehending. He is not taking notes in his classes. He does have access to the teachers’ PowerPoint presentations. Different assignments have been due, but the mother has not checked to see if the assignments were completed and submitted on time. She has read some of the PowerPoint

presentations and will casually ask BCS about his classes to see if he understood the lessons. Often, all she gets from him are short answers.

[99] For the mother to check on BCS’s work is “incredibly time consuming.” The mother stated “I can’t keep up this pace. I went to high school with [BCS]. I can’t go to College with him.”

[100] The mother does not know if BCS will be able to complete this college program. She expects that he will move to a part-time course load. He has a total of four years to complete the program. The mother “does not know what to expect.” On a positive note, the mother explained that BCS loves the courses and three of the current courses are similar to leadership courses that BCS took in high school. Whether BCS can complete this program remains to be seen.

[101] Ms. Tepperman is continuing to help BCS. Her tutoring focuses on developing strategies for BCS that will help him comprehend and complete assignments. She has observed that his reading comprehension is weak, and that he needs help. Recently, when she reviewed the course work with BCS, he was not sure what task he should focus on. When BCS does not understand the content of what he reads, he becomes stressed and anxious.

[102] Mr. Barter’s role has evolved into a life skills coach. While they continue to work on the earlier problem of impulse control, BCS understands what is right and wrong and what is an inappropriate thought. They work on controlling the impulses that may lead BCS to make the wrong choice.

[103] BCS has a trusted relationship with Mr. Barter and they can talk about BCS’s challenges and frustrations. They work on life skill tasks such as choosing a recipe, buying the food, and making the meal. If the recipe is easy the task is successful.

[104] Mr. Barter describes BCS as a “great guy,” who likes to have a conversation. Since Mr. Barter started his sessions with BCS, he has seen BCS improve and succeed. Once he gains comfort with a TTC route he is fine travelling on his own. He has friends and is an “amazing young man.”

[105] Mr. Barter’s description of BCS is consistent with the parents’ evidence. As the father explained, BCS is an “incredible kid,” who socially engages with the people he meets. BCS has pride in his current level of independence and being able to help at home.

[106] BCS coaches basketball in the fall. He is physically active and enjoys playing many sports, including swimming and basketball. He has played on basketball teams and recently joined an adult basketball league with players he does not even know. BCS is an excellent swimmer and has achieved swimming awards keeping pace with his siblings.

[107] BCS is an avid sports fan. He follows sports and participates in a fantasy football league where he builds a team and follows the progress. His current team is in first place.

[108] When BCS is at his father’s home, it is often the case that BCS is not supervised. BCS makes his bed, sets the dinner table, cooks simple meals, and unloads the dishwasher. He takes out the garbage without being asked, puts groceries away, and he can make his own breakfast and lunch.

[109] For the past several summers, BCS worked at an overnight summer camp for seven weeks. He attended this overnight camp as a child. BCS is a member of the activity staff. He helps to set up and run activities along with other counsellors who are in charge. BCS is not responsible for any of the children.

[110] Going forward, the parents expect that BCS will continue to live with them or in an assisted living environment. The mother has started to look at supervised living options. The evidence is that BCS has employable skills.

vi. The Non-Disclosure Issue/ Delay in Seeking a Review

[111] It is the mother’s position that in 2013 the father misled her and her counsel, Mr. Epstein, because he “provided limited and contrived financial disclosure” about the income he earned from the sale of Varicent. It is her position that the father lied about his income and perpetuated this lie at trial. Based on the following review of what transpired, I reject this characterization of the evidence.

[112] The following facts also show that the mother never stated or broached her intention to review support under the Separation Agreement retroactive to July 1, 2013 until she filed her Answer.

[113] The father’s ownership interest in Varicent was always known to the mother.

[114] In November 2011, the father was informally approached about a sale of Varicent to IBM. At this point, the parties were negotiating their Separation Agreement with counsel. The father was represented by Robert Halpern and the mother was represented by Philip Epstein. The father immediately informed the mother and his counsel about this possible sale.

[115] The discussions with IBM continued and by February 2012 it appeared that IBM was going to make a formal bid for Varicent. The mother and father were still negotiating the Separation Agreement at this point.

[116] In early February 2012, the father called the mother and updated her on the negotiations with IBM. He then sent her an email on February 13, 2012 reviewing what they discussed on the telephone call. As the father explained, he wanted the mother and her counsel to have his understanding of the sale negotiations and what it meant to him if the company was sold. He also wanted to allow the mother and her counsel sufficient time to ask questions. At this point, the father did not have a term sheet from IBM.

[117] The February 13, 2012 email provided details of the confidential negotiations with IBM, the valuation of Varicent, and the expectation that the transaction would close in mid to late April, if sale terms could be agreed upon. The email also reviewed the father’s interest in the company as follows:

As you know, since I still hold 5.36%, this would give approximately 8.6M (pre-tax) to me. My accountants estimate my tax liability at around 2.4M so I would net about $6.2M (before making my equalization payment to you). These numbers should be consistent with what we talked about on the phone last week. [Emphasis added.]

[118] The reference in the email to Pam’s knowledge, referred to the fact that she and her counsel had already valued the father’s interest in Varicent as of the date of separation. While negotiating the Separation Agreement, the mother retained RSM Richter & Associates to prepare a Limited Critique Report of the father’s interests in Varicent. They knew from this report that the father’s interest in Varicent was reflected in stock options and shares. The father personally held the Varicent stock options and he owned a minority interest in Varicent through a wholly-owned numbered company, 2218540 Ontario Inc (“2218540”) that held the Varicent shares.

[119] The negotiations for the sale of Varicent and the Separation Agreement continued. The Separation Agreement was signed on April 27, 2012. The agreement to sell Varicent to IBM was announced in late April and the deal closed on May 17, 2012.

[120] On the sale of Varicent, the father realized income from his stock options ($5.7M) and 2218540 realized a capital gain ($4.2M). At trial, this income was calculated and explained by the father’s expert valuator, Tim Martin from Duff & Phelps. The mother did not call her expert to testify at trial, so Mr. Martin’s opinion was not challenged.

[121] Mr. Martin explained the income that was realized upon the sale of Varicent. The

$5.7M was reported on the father’s 2012 income tax return as employment income. This amount was included in the total line 101 employment income of $6,934,854.74 for 2012.

[122] A capital gain of approximately $4.2M was reflected in 2218540’s 2012 corporate tax return. In 2012, 2218540 paid the father dividends of $1.48M (the pre-tax equivalent was $2.0M). This was reflected in line 120 of the father’s 2012 income tax return.

[123] The remaining $2.2M of the capital gain was retained by 2218540. The father’s 2012 income tax return did not reveal the remaining $2.2M of the capital gain because that amount was paid to 2218540. This amount was reflected in the numbered company’s income tax return, and it was used to pay taxes, invested, and ultimately paid to the father in 2017. In 2017, the invested monies were paid to the father from 2218540; he received dividends of $540,000 and non-taxable dividends of $2.1M.

[124] In the father’s 2012 income tax return, his line 150 return totaled $8,894,619.

[125] In the spring of 2013, a year after the Separation Agreement was signed, child support was reviewable under s. 5.10 of the Separation Agreement and spousal support was reviewable under ss. 6.4 and 6.13 of the Separation Agreement.

[126] Section 5.10 required the parties to make disclosure to each other “at least three months before the scheduled review date.” However, a review date was never scheduled. The review did not happen and the only disclosure that was made during 2013 was the father’s 2012 income tax return. The mother provided no disclosure.

[127] In a letter dated May 30, 2013, Mr. Halpern wrote to Mr. Epstein proposing that the July 2013 review be deferred for an “unspecified time”. This letter acknowledged the July 1, 2013 review date and explained the father’s reason for requesting a deferral. The father confirmed that he would continue to pay the support under the Separation Agreement and in fact he did so. Excerpts from the letter are set out below:

My client wishes to do his utmost to ensure the children’s happiness. At this time, he thinks it would be contrary to their best interests to conduct a review of support. He feels that the family requires more healing time before lawyers should re-appear. Out client is willing to defer the review for an unspecified time, provided the terms of the Agreement will remain in place on the basis that once the review does occur, it will be as if it occurred in the Spring of 2013, as was contemplated.

Given that we do not know what a review will produce by way of a result, it is difficult to say whether what I am proposing would be either party’s advantage or disadvantage. As it stands, for example, our client is not certain what your client’s income is from employment (inclusive of recorded and unrecorded earnings in a scenario where the Separation Agreement deems her to be earning “nil”), the extent of her non-employment income, whether ongoing child care is required given your client’s work schedule, whether your client is cohabiting with a third party etc.

[128] In her evidence in chief, the mother explained her reaction to this letter. She did not “appreciate” the father using the children as a reason for delaying the review because in her words, “they should not be involved”. When cross-examined, she said that she “respected” his request. She says that she was ready to move forward with the review, but the father was not ready according to this letter. She agreed to the delay because she took comfort in knowing that when the review did occur it would be “as if it occurred in the Spring of 2013.”

[129] I do not find this evidence reliable or credible. The mother has always been represented by experienced counsel and not once has she communicated her readiness to move forward with the review to the father or his counsel. It was the father’s counsel, who, on occasion, asked that they move forward with the review. Not once has the mother or her counsel made such a request.

[130] As the years passed, the parents had frequent communications, including emails, concerning the children and, especially BCS. They also communicated about s. 7 expenses. As parents, they had a good working relationship. This is not a case where one parent is intimidated by the other. There is no evidence that the parties discussed the review that had not been done.

[131] I return to the communications that unfolded.

[132] In a letter dated June 24, 2013, Mr. Epstein replied to Mr. Halpern’s request to defer the review. Mr. Epstein stated that to “properly advise” his client and “for her to consider the matter” the “parties should at least exchange their full 2012 income tax returns.” Mr. Epstein asked for this return and said that he would “reciprocate.”

[133] On August 20, 2013, Mr. Halpern sent Mr. Epstein a copy of the father’s 2012 Income Tax Return jacket and a copy of the father’s February 13, 2012 email to the mother (this was the email that explained the expected income from the sale of Varicent).

[134] On August 22, 2013, Mr. Epstein wrote and requested the father’s complete 2012 Income Tax Return and an explanation for the "rather significant numbers that appear on page 2 of the tax return.”

[135] On November 25, 2013, Mr. Halpern sent Mr. Epstein the father’s full 2012 Income Tax Return and the father’s detailed memo dated November 22, 2013 breaking down the amounts on his tax return. The memo included a chart comparing the numbers the father forecasted in the February 13, 2012 email, with the actual amounts he received. In this letter, Mr. Halpern asked that the mother’s 2012 income tax return be provided.

[136] As the father’s November 22, 2013 memo states, he was providing Mr. Epstein with an explanation for the "rather significant numbers” in his 2012 income tax return. The

$6,934,854.74 in line 101 was employment income of $347,966.32 from Varicent and

$6,586,887.68 of “[o]ption exercise and payment from sale of Varicent to IBM in 2012.” The amount of $1,958,290 in line 120 was “the amount of Varicent stock gain attributed to the sale of Varicent … [t]his amount was dividended out to me in 2012 and I paid taxes on this amount in 2012 as well.” Line 120 was the amount that 2218540 paid to the father in 2012 but it was not the full amount of the stock gain paid to 2218540.

[137] Referring to the sale of Varicent, the father states, “we’ve gone through this in copious detail numerous times in the past” but will “walk through the important points again.” He states:

I owned approximately 5.36% of Varicent. All backups of my holdings in stock and options had been previously provided to both to Mr. Epstein and [the mother] so that they could conduct a thorough valuation and confirmation of these holdings.

Based on my stock and option ownership (5.36%) and the purchase price, my estimated proceeds of this transaction $8,951,200 …

[138] The father did not include in his communications the fact that 2218540 continued to hold $2.2M. He denies that he was misleading the mother and her counsel or that his communication should be described as limited and contrived. He testified that he was answering Mr. Epstein’s request to explain “the rather significant numbers” in his personal 2012 income tax return.

[139] The context of this communication is important. The father never hid the fact that his shares in Varicent were held by 2218540, and the mother and her counsel always knew this. They knew that 2218540 filed corporate income tax returns because they had been reviewed by the mother’s valuator, RSM Richter & Associates, before the Separation Agreement was signed. The father made full disclosure to the mother before the Separation Agreement was signed. No one is seeking to set the agreement aside.

[140] The communications between counsel in 2013 arose because the father asked that the review be delayed due to concerns about the children. I find that this was a valid concern in the circumstances. The parties had just signed the Separation Agreement a year before.

[141] There was no review date set when Mr. Halpern asked the mother to defer the review. The disclosure required in s. 5.10 of the Separation Agreement was due “at least three months before the scheduled review date.” While child support was “reviewable” in the spring of 2013, no review date had been scheduled.

[142] Neither Mr. Epstein nor the mother responded to Mr. Halpern’s November 25, 2013 letter and the father’s November 22, 2013 memo. No questions were asked. No further documents were requested. The mother did not reciprocate and provide her 2012 income tax return. There was no reply to the request to delay the 2013 review. There was no communication by the mother that she was ready to proceed with the review or that she was requesting that the review take place. With the knowledge that there were “significant” numbers in the father’s 2012 income tax return, there was silence.

[143] As far as the mother was concerned, the review in the Separation Agreement was to consider any income that the father had earned from the sale of Varicent. She admitted during cross-examination that she knew the income earned by the father in 2012 was “significant.” The mother also agreed that whether his income was $8M or $10M, it was a significant amount, and she did not seek a review. She had the right to ask for a review, but she did not request one. Furthermore, she admitted during cross-examination that she has never initiated the review of support under the Separation Agreement.

[144] The mother argues that the father continued to mislead her during the application. When the father produced Mr. Martin’s expert report, she received for the first time a one- page document that the father’s external accountants prepared in 2012. This document

was attached to Mr. Martin’s report and detailed all the monies received by 2218540 from the Varicent sale. The document informed the mother for the first time that the numbered company received total proceeds of $4.5M. This document was produced during the Application, as were 2218540’s income tax returns.

[145] I reject the suggestion that the father was misleading the court. I am not satisfied on a balance of probabilities that the father misled the mother as she alleges. In 2013, the father asked to defer the review for valid reasons, and he answered Mr. Epstein’s inquiry about the “significant numbers” on his 2012 income tax return. The joint obligation to make disclosure was set out in the Separation Agreement and was required to take place “at least three months before the scheduled review date.” A date was never scheduled. As set out below, in 2014, 2018, and 2019, the father requested that the parties proceed with a review of support, but it did not happen.

[146] In the context of these facts, I reject the mother’s position that the father misled her or the court.

[147] About eight months after the father’s request to delay the review, the father decided to proceed with the review. On July 3, 2014, Mr. Halpern wrote to Mr. Epstein. He enclosed the father’s 2013 income tax return and noted that the father’s 2013 employment income was $254,804.21 and there was an “additional approximately

$80,000 which is earned by [the father’s] holding company” (2218540) for a total income of approximately $334,804.21. Mr. Halpern notes that the mother’s income in the Separation Agreement was deemed to be nil. He then quotes the mother’s “Professional Profile” on Linkedin, which notes that she has a law and business degree, she has legal experience guiding corporate clients through structuring and re-structuring of their debt, and that she decided to join DebtCare Canada to help people deal with debt. Mr. Halpern advised Mr. Epstein that his client wanted to address the review of spousal support. If they could not agree, he noted that the Separation Agreement required the parties to try and resolve the dispute through negotiation.

[148] Mr. Epstein replied on July 8, 2014 and told Mr. Halpern that because he was now a full-time mediator the mother had to retain new counsel. The mother retained Bryan Smith and he emailed Mr. Halpern on October 15, 2014. He stated that they were working on the mother’s financial statement and asked for the father’s sworn financial statement with backup documentation.

[149] After the October 15, 2014 email, there were no communications between counsel until June 11, 2018. Mr. Halpern did not reply to Mr. Smith’s email and Mr. Smith did not follow up.

[150] The mother testified that she started to prepare her financial statement in 2014 and sent it to her counsel, along with her bank statements and her income tax returns. None of this was ever sent to the father and/or his counsel. She also testified that she did not want to provide her documents until she saw the father’s documents first. Given that

there had never been a disclosure problem between the parties, this is an odd explanation for holding back disclosure.

[151] The mother also testified that she did not pursue the review in 2014 because the “children were struggling” with their time at the father’s house because of their relationship with his new wife. The father had remarried, and the mother was worried that if she asked for a review of support, the father would ask to change the parenting schedule. The schedule under the Separation Agreement was working and the mother did not want it to be changed.

[152] There are problems with this testimony. The Separation Agreement did not provide for a review of the parenting schedule. Further, if the children were struggling as stated, it is surprising that it was never dealt with in the regular email communications between the parents. While contact between the parties continued, there is no evidence that they ever discussed why the review was not taking place. The mother’s explanation for not seeking a review is not credible. The only plausible explanation is that she did not want to have her spousal support reviewed and I find this to be a fact. This was the focus of the review as clearly set out in the Separation Agreement.

[153] On June 11, 2018, Mr. Halpern sent a detailed letter to the mother stating that he was retained to commence a review of support under the Separation Agreement as soon as possible. In this letter, he raised the following points. The parties had not complied with paragraph 5.6 of the Separation Agreement, which required a yearly reconciliation of the after-tax cost of the s. 7 expenses to determine if the father had over- or under-paid the

s. 7 expenses. He noted the father’s deep concern with the delay in starting the review, the reconciliation of the s. 7 expenses, and payment of the nanny expense that the father said was no longer required.

[154] Mr. Halpern also reminded the mother of her obligation under s. 6.13 of the Separation Agreement to “contribute to her own support … make reasonable efforts to support herself ... to find a job or become self-employed.” He asked for the mother’s CV, employment history, current employment, and/or proof of her efforts to find employment. He urged the mother to seek legal advice. Presumably, Mr. Halpern wrote to the mother directly because he had not heard from Mr. Smith since October 2014.

[155] Mr. Smith replied on June 28, 2018. He confirmed his retainer and stated that the mother was “working on her disclosure,” including a sworn financial statement, which he hoped would be ready in a few weeks. Mr. Smith asked for the father’s disclosure retroactive to 2012 and a sworn financial statement. The father still had no income tax returns from the mother.

[156] On July 10, 2018, Mr. Halpern replied stating that the father was also working on his disclosure, including a sworn financial statement. He agreed to provide income tax returns and Notices of Assessment from 2012 to date and asked the mother to do the same. He requested a list of all s. 7 expenses that she had paid since May 2012 and once

again asked for documents relating to her employment history, current employment, and efforts to find employment. Finally, Mr. Halpern suggested that the parties arrange a mediation immediately. Mr. Halpern did not receive a response to his letter.

[157] The mother testified about what she was doing in 2018. She recognized that time had passed, and she knew that there was a “lot of clean up to do,” so she started preparing her financial statement again and organizing her disclosure. What the mother prepared was not produced to the father and his counsel. She testified that “there was a history of the documents not being exchanged and I hesitated being the first one to provide them.”

[158] This explanation is not credible. As of this date, the mother had not produced any documents. While the father’s disclosure was limited to his 2012- and 2013-income tax returns, at least he had made some disclosure.

[159] On November 4, 2019, Mr. Halpern wrote again to Mr. Smith, enclosed a copy of his July 10, 2018 letter, and asked for a reply. He confirmed that his client was compiling the information requested and that he was waiting for the mother’s disclosure. Finally, he stated that if the mother would not agree to mediation, then the father would proceed accordingly. No reply was received.

[160] After the November 4, 2019 letter, the father retained Niman Mamo to represent him. On April 3, 2020, Ms. van Wirdum sent an email to Mr. Smith asking if he was still representing the mother.

[161] On June 3, 2020, Mr. Smith’s office emailed and confirmed that they continued to represent the mother. A request was made to set up a telephone call between counsel and this occurred.

[162] On June 26, 2020, Mr. Smith emailed Ms. van Wirdum. This email summarized the call that had taken place. They discussed parenting issues and the father’s proposal that they meet with Mr. Barter concerning BCS. The email primarily focused on a possible meeting with Mr. Barter and the discussion about possible mediation. The email concludes by proposing a July 15, 2020 deadline for the parties to exchange financial statements and supporting briefs.

[163] Both parties proposed mediation, but this did not happen because they could not agree on a mediator. No steps were taken to have a mediator named by the court as required in s. 9 of the Separation Agreement. Neither complied with the requirement to proceed with mediation before commencing the Application and seeking relief in this court.

[164] On July 17, 2020, the father’s July 15, 2002 financial statement and disclosure brief was provided to the mother’s counsel. The mother delivered her financial statement

and disclosure brief on July 20, 2020. The father was unaware of the mother’s accumulated wealth until he received the mother’s financial statement.

[165] The father issued his Application on September 4, 2020. The mother filed her Answer on October 8, 2020. For the first time she stated her intention to have support reviewed retroactive to July 1, 2013. A year later this trial was held.

[166] At no point during these years of sporadic communications did the mother ever state her intention to review support and she took no steps to schedule a review date. While the father did state his intention to review support, his efforts to move the matter to an actual review never led to a review date being scheduled.

[167] The parties followed the parenting schedule until recently when the children started to spend more time with their father. Every month, the father has paid $5871 for child support and $6270 for spousal support. The father has paid most of the s. 7 expenses without any adjustments. In fact, he has paid more for s. 7 expenses than was contemplated in the Separation Agreement.

vii. Change in Financial Circumstances Since Separation Agreement

[168] More than eight years have passed since the Separation Agreement was signed on April 27, 2012. Over this time frame, the father’s financial circumstances have fallen, and the mother’s financial circumstances have improved.

The Father

[169] In April 2013, the father joined a company called Blueprint Software Systems (“Blueprint”) as the CEO and president. Blueprint is a technology company that helps large clients automate processes through technology. When the father was hired, he was required to invest in the company. He has some shares and a small investment stake. His base salary is $320K, with a maximum bonus of 80% of the base if targets are met. The father’s salary and bonus are determined by an arms length committee on the board of directors. The last three to four years have been challenging due to a shift in the marketplace. The father is hopeful that the company will succeed.

[170] The father’s income for support was calculated by his expert, Mr. Martin. Except for 2017, the income is not disputed. The following shows the yearly income:

Year

Income

2013

$335,000

2014

$481,000

2015

$457,000

2016

$404,000

2017

$255,000

2018

$263,000

2019

$727,000

2020

$576,000

[171] The parties do not agree on the father’s 2017 income. The dispute focuses on the money that 2218540 paid to the father in 2017. As previously explained, 2218540 received a $4.2M capital gain in 2012 from the sale of Varicent. In 2012, 2218540 paid the father dividends of $1.48M (the pre-tax equivalent was $2.0M). This was reflected in line 120 of the father’s 2012 income tax return.

[172] The remaining $2.2M of the capital gain was retained by 2218540. This retained money was used to pay income tax and the rest was invested. In 2017, the invested monies were paid to the father from 2218540; he received dividends of $540,000 and non-taxable dividends of $2.1M.

[173] The mother argues that the 2017 payments should be included in the father’s 2017 income for support. This position was not supported with expert evidence and is contrary to the unchallenged opinion of Mr. Martin about how the 2017 payments should be treated.

[174] The mother retained an expert, Morgan McIntyre at ap Valuations, and she identified this person on the Trial Scheduling Endorsement Form as an expert she would call. The Trial Scheduling Endorsement Form provided time for filing this expert’s report. The mother did not serve her responding expert report and the expert was not called at trial. Instead, she tried unsuccessfully through cross-examination to have Mr. Martin accept her position on treatment of the 2017 income. The father asks this court to draw an adverse inference. Specifically, that the mother did not call her expert because that expert did not disagree with Mr. Martin. I do draw an adverse inference. The amount of money that 2218540 paid to the father in 2017 was not insignificant. If the mother had an opinion that challenged Mr. Martin, she would have called that expert. No responding report was served. The reasonable inference to draw is that the mother’s expert did not disagree with Mr. Martin.

[175] Mr. Martin explained the basis for his opinion in a clear and straightforward manner. I accept his opinion. Money is income in the year it is earned. The $4.2M was paid in 2012 to 2218540. That is the year it was earned. In the same year, 2218540

released about $2M to the father. This money was taxed and reported in the father’s 2012 income tax return.

[176] The balance of the $4.2M ($2.2M) was invested by 2218540 and used to pay taxes. When 2218540 paid the balance of the monies to the father in 2017, this was the father’s use of money that had been earned in the 2012 Varicent transaction. This was not an income event but rather the father’s withdrawal of money from 2218540’s investment account.

[177] For support purposes, Mr. Martin includes the 2017 money in the father’s 2012 income. The various scenarios reflecting the 2012 income are set out in Mr. Martin’s report as follows:

[178] Alternatively, the mother also argues that the 2012 income as calculated by Mr. Martin should be used to calculate support owing as of July 1, 2013. This assumes that the mother’s request to retroactively adjust support to July 1, 2013 is allowed. The father argues that this is contrary to Vanos v. Vanos, 2010 ONCA 876, at paras. 13-17. I agree.

[179] As stated in Vanos:

13 In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor's actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor's actual income for the prior period is known.

14 When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.

15 Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, "[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used."

[180] The father’s financial circumstances have deteriorated since the Separation Agreement was signed. In his financial statement sworn shortly before the Separation Agreement, his net worth was about $2.9M. In his most recent financial statement, his net worth was essentially negative. This included a $1.2 million loan from his father's company. The loan is registered on title to the father’s house and includes a condition that it takes priority over other creditors with respect to the father’s proceeds of sale of his Blueprint shares, if and when they are sold.

[181] The father explained how his shares in Blueprint were restructured after commencing these proceedings. An independent valuation confirmed that his common shares are now essentially worthless. The father also confirmed that he has a line of credit on his house and a credit card which requires servicing of over $7,500 per month.

[182] The father says that the impact of a $1M retroactive support award would be “financial devastation.”

[183] The mother argues that the father has hid $2M of after-tax income. The father provided evidence to show how he spent the proceeds from the Varicent sale. The father was cross-examined on this evidence. The cross-examination was confusing and did not result in proof that the father hid money. There is no accounting analysis to support this allegation of money being hidden. The mother has not proven her allegation that the father has hidden money.

[184] There is no question that the father has spent considerable amounts of money since the sale of Varicent. He lost approximately 1.4M in the stock market. He invested 1.1M in Blueprint and his shares are now worthless. He paid $1,872,000 for child and spousal support plus s. 7 expenses. He remarried and then divorced and spent

$2,790,708 satisfying obligations to his second wife. His own living expenses were

$2,480,000 and he spent $806,000 on home renovations, cars, watches, and artwork. From 2013-2019, the father spent $728,000 on expensive vacations for the children and his second wife.

[185] While the father’s financial circumstances have declined, he continues to be employed and earns a significant salary.

The Mother

[186] When the Separation Agreement was signed, the mother had a net worth of

$1.13M. This was based on her September 27, 2010 financial statement. The matrimonial home that was in her name was valued at $1.1M. Less than two years later, the mother advised BMO that the home was valued at $1.3M.

[187] The mother’s August 25, 2021 financial statement confirms that her financial circumstances have improved considerably. Her assets total $8,392,922.59, her debts total $582,062.76, and she has a net worth of $7,810,859.83.

[188] Her true net worth is higher. She continues to own what was the matrimonial home in Upper Village Forest Hill. She values it at $1.6M. There is no real estate appraisal to support this value. It is simply the mother’s estimate. To suggest that this home has only increased by $300,000 since 2012 is not realistic given the growth in the Toronto real estate market that is commonly known. Her net worth is clearly $8M or higher.

[189] Much of the mother’s net worth is held in non-registered investments and bank accounts worth over $6.1 million, in addition to her RRSPs and TFSA worth over

$660,000.

[190] She has no debts to service, aside from her Visa, which she pays in full each month. She owns her own home and it is not encumbered.

[191] The mother’s BMO investment account, which is valued at approximately $3.9 million, was started with part of the $1.5 million equalization payment the father paid to her. It was further supplemented with a $500,000 gift from her parents in November 2013.

[192] The mother instructed her investment advisors to invest for growth in the BMO account and not income. The mother agrees that she can change her investment strategy to an income producing strategy, but she does not plan to make this change.

[193] Although the mother’s investment strategy is geared towards growth instead of income, she has earned significant dividends, capital gains, and investment income from her investments at BMO, RBC DS, and RBC, as shown in her tax returns from 2012 to 2020:

Year

2012

2013

2014

2015

2016

2017

2018

2019

2020

Income

$29,960

$114,889

$128,601

$153,238

$187,061

$163,258

$154,371

$139,647

$158,459

[194] The mother has not used her investment income to meet her daily expenses. Instead, the income has been reinvested. The mother acknowledged that she has been

meeting her expenses without withdrawing from her investments. She has not touched the money in the BMO or RBC Dominion Securities accounts, which hold the bulk of her investments valued at over $5.8 million. When she has withdrawn funds on occasion for "larger expenses," it has been from her RBC mutual funds.

[195] Going forward, the mother plans to continue growing her investments. She will not change the growth strategy nor withdraw income that is earned. Her reasons for this approach are that she has no pension and cannot earn enough employment income to save. As a result, she says that she needs her investments to grow so that she will have enough money in the future to take care of herself and BCS. There is no evidence to show what amount of money is “enough” for the mother in retirement years. Her explanation also seems to assume that she will be solely responsible for BCS when both parents have recognized their ongoing obligation. Further, she owns the matrimonial home, which will assist her in caring for BCS in the future.

D. IMPUTATION OF INCOME TO THE MOTHER

i. Legal Framework

[196] The father asks the court to impute employment income of $80,000 to the mother. He says that she is underemployed and able to earn more income. In addition, he seeks to impute $310,000 of investment income to the mother.

[197] Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) permits the court to impute additional income where a spouse is intentionally underemployed:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[198] If a parent is earning less than she or he could be, then the parent is intentionally underemployed: Lavie v. Lavie, 2018 ONCA 10, at para. 26. Intentionally means “voluntary”: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, at para. 28. If a parent is voluntarily underemployed, the court is required to consider s.19(1)(a).

[199] The court has discretion whether, and if so, how much income to impute to the under-employed spouse. The court has broad discretion to impute income to a parent who is underemployed, but that discretion is not absolute. There must be a “rational basis

underlying” the amount and “the court’s discretion must be grounded in the evidence”:

Drygala, at para 44.

[200] When imputing income, the court must consider what is reasonable in the circumstances. The factors that may be considered include age, education, experience, skills, and health of the parent. Additionally, the availability of job opportunities, number of available work hours (considering the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.

ii. Employment Income is Imputed

[201] It is important to note that the mother agreed to make reasonable efforts to become self-sufficient. Section 6.4 of the Separation Agreement states in part:

Pending such a review, [the mother] agrees that she shall make reasonable efforts based on her vocational background, educational background, and child care responsibilities (based on the children's needs and any care assistance which [the mother] receives) to become financially self-sufficient.

[202] When the Separation Agreement was signed, BCS was 12 years old. His special needs were well known. The mother had been working at Debtcare since 2010. With this knowledge and experience caring for BCS, she made this agreement.

[203] The mother works 20-25 hours a week at Debtcare. She worked another 3-5 hours a week in 2019 but otherwise her hours have not increased.

[204] The mother was the primary parent responsible for BCS through his school years. There is no doubt that she required a degree of flexibility in her employment to make sure that this child’s special needs were met during grade school. These needs started to decrease in the later part of high school. During these years, there could have been employment opportunities with higher remuneration and sufficient flexibility, but the mother did not make any reasonable enquiries to find such work.

[205] While the mother argues that her days have been filled with appointments for BCS, this is no longer so. During high school, the mother no longer had to drive BCS to and from school. BCS’s needs and demands decreased further after high school ended in June 2019. The mother’s involvement in schoolwork is significantly less at college because as she says “I went to high school with him. I can’t go to college with him.” BCS’s level of independence has grown at home and elsewhere. He has jobs, plays sports, and travels on his own to school and to see Mr. Barter.

[206] The mother relies on several cases where spousal support was continued because of children with special needs. These cases are distinguishable primarily because the children in question were younger, more disabled, and had greater needs. BCS’s ongoing needs do not require the level of parental care that supported those decisions: Sherman v. Donohue, 2021 ONSC 5179; Dupuis v. Desrosiers, 2013 ONCJ 720; Rémillard v. Rémillard, 2014 MBCA 101.

[207] The mother did not make reasonable efforts to increase her work hours and earn more employment income. Aside from sending her resume to a friend’s sister, she took no steps to look for other work. Other work options could have provided flexibility and better remuneration. She could have tried to increase work hours at Debtcare before 2019. In the 2018-2019 school year, BCS repeated grade 12. During this year, marks did not matter as BCS already had his diploma, so the mother decided to step back. The demands on her time were less and she could have started to increase her work hours at Debtcare. She did not do so until BCS attended George Brown College in September 2019.

[208] I find that the mother could have started to increase her work hours during the second year of grade 12. I also find as a fact that by June 30, 2019 at the latest, the mother was able to work full-time hours. High school at this point was finished.

[209] The father says that the mother can earn $80K. Whether she increases her work hours at Debtcare or finds another job, he maintains that this is a reasonable income to impute.

[210] The mother’s gross earnings in 2019 provide a useful point of reference and show what can be achieved by simply working another 3-5 hours a week. In 2018, the mother worked 20-25 hours a week at Debtcare and her gross income was $45,867. In 2019, BCS was attending George Brown College. It was the mother’s evidence that she had more time that year and worked on average another 3-5 hours a week. In 2019, her gross income increased to $61,726.14. For income tax purposes, the mother writes off many expenses, including home property taxes and utilities, thereby reducing the tax she pays and providing her with more income.

[211] When the parties separated, the mother had primary care of three children, who were then 12, 10, and 7 years old. The children are now 21, 19, and 16 years old. Since mid-2020, the children have been spending more time with their father.

[212] The second child is now away at university and shares her time with both parents when she is home. The third child lives equally with both parents. BCS is enrolled in full- time post-secondary education, spends more time with his father (5 nights out of 14), and no longer requires the same degree of care and attention as he did when he was younger.

[213] The mother is 50 years old and in good health. Except for short periods of time, she has not left the workforce. With her education and experience at Debtcare and considering the part-time business income she has been able to earn, I find that $80K is a fair income to impute to her.

[214] During Covid, the potential client calls at Debtcare decreased because government programs were available to help those with debt problems. The mother’s employer designated her as an employee to allow the employer to seek government assistance. The mother is now paid a salary of $40K. This is tracked against commissions that would have been paid. If the mother’s work falls short of what she would have earned in commissions then she must repay the shortfall from her salary. If she exceeds $40K in billings, she will be paid commissions for the extra. Business has been slow but is expected to increase as the government programs end.

[215] The mother has a positive duty to maximize her income earning potential. If business does not bounce back at Debtcare, then she has an obligation to find other full- time work.

[216] While BCS will always need his parents to guide him and watch over him, the level of support he requires should not reasonably interfere with the mother’s ability to work full-time hours and earn $80K a year and I impute this income to her.

iii. Investment Income is Imputed

[217] Since separation, the mother’s net worth has grown significantly. The father says that the mother has failed to properly generate income from her investments because she has focused on growth and not income investments. He asks the court to impute investment income to the mother.

[218] Section 19(1)(e) of the Guidelines permits the court to impute additional income where a spouse has not reasonably utilized property to generate income.

[219] The mother has invested wisely and is financially savvy. She has accumulated significant wealth and has virtually no debt. She has reached the point where it would be unreasonable going forward, not to use her invested wealth to generate income.

[220] Based on the mother’s bank account and investment account statements that she produced, she has generated the following rates of return from 2014 to 2020:

Year

2014

2015

2016

2017

2018

2019

2020

Rate

4.21%

4.83%

5.25%

4.04%

4.19%

3.10%

3.76%

[221] An average of the above rates of return is 4.2%. The mother has managed this rate of return, even though she has selected an investment strategy that prioritizes growth over income. She has generated significant investment income over the years, which she has not had to use to meet her daily expenses.

[222] The father says that it would be reasonable to apply a rate of return between 4% and 7% to the mother’s investible assets of $6.1 million. He asks the court to impute a

5% rate of return, which would equal $310,000. This is a modest increase in the mother’s actual average rate of return, and she has yet to change her investment strategy from growth to income.

[223] In Plese v. Herjavec, 2018 ONSC 7749, aff’d 2020 ONCA 810, Mesbur J. set the rate at 5.13% for the investible assets. The court had expert evidence that one could reasonably expect to earn between 5.56% and 5.98% in a Growth Portfolio, or 4.84% and 5.13% per year based on a Balanced Portfolio. In Berta v. Berta, 2017 ONCA 874, a rate of return of 6% on about 1.7M of investible assets was upheld and in Chaudry v. Meh, 2019 ONSC 7065, the court applied a 6.6% rate of return.

[224] A 5% rate of return is a small increase from the mother’s average rate of return. It is reasonable to expect that she can generate investment income at this level.

[225] With a 5% rate of return on the mother’s investible assets of $6.1M, the mother would earn investment income of $310,000.

[226] Section 19(1)(h) of the Guidelines provides the Court with the option of imputing income to a spouse who "derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax." This option was used in C.Z. v. J.Y., 2021 ONSC 256, at para. 172, and Fielding v. Fielding, 2018 ONSC 5659, at paras. 122-23.

[227] The mother derives a "significant" amount of her non-support income from investments. Her investment income has consistently exceeded her net business income, sometimes by tenfold. A summary of the business and investment income from her tax returns from 2012 to 2020 is below:

Year

Gross Business

Net Business

Investments

Total

2012

$52,955.00

$39,066.00

$29,960.00

$69,026.00

2013

$48,396.00

$32,289.00

$114,889.00

$147,178.00

2014

$51,717.00

$33,906.00

$128,601.00

$162,507.00

2015

$37,876.00

$18,786.00

$153,238.00

$172,024.00

2016

$39,937.00

$19,556.00

$187,061.00

$206,617.00

2017

$56,261.00

$37,388.00

$163,258.00

$200,646.00

2018

$45,867.00

$25,671.00

$154,371.00

$180,042.00

2019

$61,726.00

$41,445.00

$139,647.00

$181,092.00

2020

$13,052.00

-$4,304.00

$158,459.00

$154,155.00

[228] The father pays $6270 a month ($75,240/year) for spousal support. The mother’s yearly investment income is twice this amount. The mother can easily maintain financial self-sufficiency without spousal support if she draws on her investment income.

[229] The mother’s investment income has consistently been at levels “ such that it ‘would have influence or effect’ on the standard of support available to the children,” even though she does not use it to meet her and the children’s daily expenses: Fielding, at para. 122. It is entirely appropriate to gross up the mother’s investment income not only for tax, but also CPP and EI, as done in the father’s DivorceMate calculations.

[230] The mother has wisely accumulated considerable wealth that generates income. She has an obligation to take reasonable steps to become self-sufficient. This includes using the income that her investments can reasonably generate. I find that it is appropriate in the circumstances to impute $310,000 of income to the mother pursuant to s. 19(1)(e) of the Guidelines and I do so.

[231] In total, I impute an income to the mother of $390,000. This includes employment income of $80K and $310,000 of investment income.

E. SHOULD THE REVIEW BE RETROACTIVE TO JULY 1, 2013?

[232] The father asks the court to order termination of spousal support as of June 30, 2018 but does not seek a retroactive variation of any support.

[233] The mother seeks a retroactive variation of all support back to July 1, 2013. It is her position that if this variation is ordered, the father owes her $1M. If the court orders a review retroactive to July 1, 2013, the father vigorously disputes this amount.

[234] While the Separation Agreement provides for a review as of July 1, 2013, the court has the discretion to consider if such a long retroactive reach is appropriate given the facts of this case.

[235] Colucci v Colucci, 2021 SCC 24, at paras. 6, 71-73, and 114, provides a revised approach for cases where the recipient of child support seeks a retroactive increase. The approach is summarized in para. 114 as follows:

114 It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the

recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[236] While this application is not brought under s. 17, Colucci remains the framework, with one exception. Proof of a material change in circumstances is not required because the Separation Agreement provides for the review. In any event, there is a material change in circumstances given the change in each party’s financial circumstances.

[237] There is a presumption in favour of retroactively increasing child support “to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary”: Colucci, at para. 114.

[238] The mother did not give the father effective notice of her request to vary support as of July 1, 2013. She did not “broach” the subject. She never raised the subject and did nothing to initiate her request for this retroactive review. Her intention was not revealed to the father until he received her Answer dated October 8, 2020. As stated in Colucci, “[w]here no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice”: Colucci, at para. 114.

[239] The court has the discretion to depart from this retroactive date where the result would be unfair. The D.B.S factors guide the exercise of this discretion: D.B.S. v. S.R.G., 2006 SCC 37, at paras. 100-116. The D.B.S. factors do not lead me to exercise my

discretion and allow the mother’s request to conduct the review as of July 1, 2013. My reasons follow.

[240] The mother has not explained her delay in seeking a review: D.B.S., at para. 101. While she claimed in 2013 that she was respecting the father’s wish to delay the review, she did not respect his request 8 months later to move forward with the review. Nor did she respond to the father’s requests in 2018 and 2019. While the father could have been more persistent in demanding the review, the mother’s silence understandably made him assume she was not interested. The mother offered no understandable reason for her delay. I find as a fact that she was not interested in following the Separation Agreement. She knew that the purpose of the review was two-fold: to consider the income that the father had earned from the Varicent sale, and the quantum and duration of her spousal support in conjunction with her obligation to make reasonable efforts to become financially self-sufficient. And yet she never requested a review.

[241] The father’s conduct is relevant: D.B.S., at para. 106. I have rejected the mother’s position that she was misled by the father. He made considerable disclosure and the mother knew that he had made a significant amount of money from the Varicent sale. Whether it was $8M or $10M, she did not request a review. The father has continued to pay child and spousal support. He has paid the s. 7 expenses without the required yearly reconciliation. The father has paid for s. 7 expenses that have exceeded the yearly amount of $37,200, which was contemplated when the Separation Agreement was signed. From 2013-2019, the s. 7 expenses ranged from $55,000 to $70,000. The father has paid university expenses for the second child without reimbursement from the RESP. In summary, the father’s conduct is positive and does not support the mother’s retroactive request.

[242] The circumstances of the children are relevant: D.B.S., at paras. 110-111. They have not suffered. Their needs have always been met. The father has taken the children on yearly vacations and has often included their friends. He also took each child on a special trip to celebrate their Bar/Bat Mitzvah.

[243] It is clear from a review of the facts, that the mother did not “broach” the subject of the increase in support until she filed her Answer.

[244] This trial was the review and based on my reasons this decision shall be the effective date of the review.

G. VARIATION OF SUPPORT

i. Overview of the Variation

[245] I have imputed an income to the mother of $390,000 and I do so as of December 1, 2021. The father’s current income is $576,000. These incomes shall be used to set child support as of December 1, 2021 and fix the proportionate sharing of s. 7 expenses.

[246] It is fair and reasonable to give the mother some time to adjust her work schedule, increase her hours, connect with employment agencies and head-hunters, and arrange her investments to produce the income she should be generating. For this reason, the father shall, as of December 1, 2021, continue to pay the mother monthly spousal support of $6270 for one year. Spousal support shall be terminated after the one-year ends.

[247] My reasons follow below.

ii. Guideline Child Support / S. 7 Expenses / RESPs

[248] Effective December 1, 2021, the father shall pay Guideline child support based on his income of $576,000. The father’s DivorceMate calculation confirms that he owes guideline monthly child support of $3961 (copy attached). This reflects the current parenting schedule.

[249] The s. 7 expenses shall be shared proportionate to the father’s income of $576,000 and the mother’s income of $390,000. The father shall pay 62.9% and the mother shall pay 37.1% (this is the mid-point in the DivorceMate calculation). This shall be effective December 1, 2021.

[250] The Separation Agreement listed the children’s s. 7 expenses as of April 2012 when the Separation Agreement was signed. Given that much time has passed, many of these s. 7 expenses are no longer required. Going forward, the parties need to discuss what s. 7 expenses are agreed to. Section 5.7 of the Separation Agreement states that the parties will not unreasonably withhold consent. If the parties cannot agree on s. 7 expenses going forward, the Separation Agreement sets out what shall happen. Specifically, absent an agreement, the expense shall be shared equally, and the parties will use the Dispute Resolution procedure in the Separation Agreement to resolve the s. 7 dispute.

[251] The father has paid $44,528.56 for first and second year post-secondary education expenses. The expenses are reasonable. The father shall be reimbursed for these expenses from the child’s RESP account. In the future, there should be no dispute that tuition, books, housing/residence costs, and other reasonable university/college expenses should be paid and reimbursed from the RESPs without delay.

[252] The father asks the court to make an order adding him to the five RESP accounts. Since he has been the sole contributor to these accounts since separation, this should be done. There is no evidence as to whether both parents can be named on a RESP account. I make such order subject to the parents confirming with the RESP provider that the father can be added.

[253] Lastly, the parents have not been able to agree on the interest that has accumulated on the monies invested in the RESPs as of December 31, 2010. The mother seeks an order designating such interest. I decline to make this order on the evidence

available. If the parties cannot agree on the amount, they should seek assistance from the RESP holder or some other source.

iii. Spousal Support – Legal Framework

[254] In this case the parties did not incorporate the terms of the Separation Agreement into a court order. As a result, the issue of spousal support is governed by s. 15.2(4) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) that states:

…the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

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

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

[255] The "condition" of a spouse includes such factors as their age, health, needs, obligations, dependants, and their station in life. A spouse's "means" encompasses all financial resources, capital assets, income from employment, and any other source from which the spouse derives gains or benefits: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at pp. 440-442; Smith v. Smith, 2012 ONSC 1116, at para. 69.

[256] Section 15.2(6) of the Divorce Act provides that an order concerning spousal support should consider the objectives of spousal support as follows:

An order made under subsection (1) or an interim order under subsection

(2) that provides for the support of a spouse should

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

(b) apportion between the 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;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

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

[257] No single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective based on the circumstances of the parties. One of the purposes of spousal support is to relieve economic hardship that results from marriage or its breakdown: Moge v. Moge, [1992] 3

S.C.R. 813, at pp. 848; Bracklow, at p. 440.

[258] As stated in Moge, at pp. 848-849:

. . . [T]he purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown.” Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.

This approach is consistent with both modern and traditional conceptions of marriage in as much as marriage is, among other things, an economic unit which generates financial benefits . . . The [Divorce] Act reflects the fact that in today’s marital relationships, partners should expect and are entitled to share those financial benefits.

[259] As stated in Moge v. Moge and Bracklow v. Bracklow, there are three conceptual bases for entitlement to spousal support. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation. Finally, entitlement may exist on a non- compensatory basis, as a result of the needs of a spouse. This ground for spousal support establishes that a spouse may be obliged to pay support based on the other spouse's economic need, even if that need does not arise as a result of the roles adopted during the marriage. This basis for spousal support is founded on the view that "marriage is a relationship involving mutual obligations and interdependence that may be difficult to unravel when the marriage breaks down": Moge, at pp. 864-865; Bracklow, at pp. 444, 448; C.Z., at para. 241).

[260] As the court emphasized in Bracklow, at pp. 450-451, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act."

iv. Spousal Support is Terminated

[261] Including their year of cohabitation, the parties cohabited for 15 years. The mother was 39 years old on the date of separation.

[262] During the marriage, the mother was primarily responsible for the children. She was also primarily responsible for supervising and monitoring BCS and taking care of his special needs. She had a nanny until 2019.

[263] The mother remained in the workforce after two of her maternity leaves and she pursued “9 to 5” jobs so that she could balance work and her career. When the parties separated the mother was working part-time at Debtcare.

[264] As a lawyer and graduate of the Schulich School of Business, she gave up the opportunity to pursue the type of career in law or business that would have required long work hours. She did this so she could balance work and BCS’s special needs. The mother’s decision allowed the father to pursue his career. This entitles the mother to compensatory support. She has been receiving support for 11 years since August 2010, as confirmed in the Separation Agreement.

[265] The mother has now accumulated significant wealth and has no debt. She is 50 years old, healthy, and highly educated. She has never left the workforce, and so her return to full-time work will not be as challenging as it would be for someone with no work experience.

[266] The mother says that she cannot realistically compete with “twenty somethings” and devote 60 hours a week to the practice of law or banking. I agree that this would be a challenging goal. However, this is not the expectation. She can generate an income of

$390,000 without the 60-hour work week.

[267] The mother agreed to take reasonable steps to become self-sufficient. She knew when the Separation Agreement was signed that the quantum and duration of her spousal support would be reviewed. She agreed that pending the review she would make reasonable efforts to become financially self-sufficient. She never looked for more remunerative work. The mother is able to earn more employment income than she currently does. As well, the mother has achieved financial success through her investments. She has and will generate considerable investment income.

[268] The mother is now economically self-sufficient. She has a current net worth of over

$8M, and she is able to work full-time hours. The economic disadvantage from the breakdown of the marriage has been addressed. The mother has no economic hardship to address.

[269] In Fisher v. Fisher, 2008 ONCA 11, the Ontario Court of Appeal held that although the Spousal Support Advisory Guidelines are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.” While the Guidelines are not binding, they provide a valuable litmus test for assessing spousal support.

[270] The father’s DivorceMate (Spousal Support Advisory Guideline) calculation serves as a useful tool when deciding spousal support. The father’s DivorceMate calculation shows that no spousal support is owed at the low and mid-range and $713 is owed at the high end of the range, with a duration in the range of 7.5 to 15 years.

[271] The order I am making will continue spousal support for another year for a total of 12 years. The decision is fair based on the father’s DivorceMate calculation.

[272] In summary, the mother’s compensatory and non-compensatory reasons for support have been satisfied. She is no longer entitled to spousal support. As explained, I have ordered one additional year of spousal support to allow the mother a reasonable period to adjust her sources of income.

G. CONCLUSION

[273] I make the following orders:

1. Effective December 1, 2021, an income of $390,000 shall be imputed to the Respondent. For child support and s. 7 expenses, the Applicant’s income as of December 1, 2021 is $576,000.

2. Effective December 1, 2021, the Applicant shall pay the Respondent $3961 a month for guideline child support for the children: BCS, born […], 1999; AKS, born […], 2002; and JLS, born […], 2004.

3. Effective December 1, 2021, the Applicant shall pay 62.9% and the Respondent shall pay 37.1% of all s. 7 expenses that are agreed upon in writing. If there is no agreement, then the parties shall share the expenses equally and proceed to resolve the dispute through Dispute Resolution as set out in s. 5.7 of the Separation Agreement dated April 27, 2012.

4. The Applicant shall pay the Respondent spousal support in the amount of

$6270 for a period of one year to commence on December 1, 2021. After payment of this spousal support for the one-year, spousal support shall be terminated.

5. The Applicant shall be paid $44,528.56 from the applicable RESP account to reimburse him for first and second year post-secondary education expenses he has incurred. The Respondent shall fully cooperate to ensure that this reimbursement is not delayed.

6. The Applicant shall be added to the children’s RESP accounts subject to the RESP provider allowing a second parent to be added.

7. The parties shall make all reasonable efforts to agree on costs. Failing an agreement, they shall agree on a schedule for exchange of cost

submissions and file them with the court by December 3, 2021. Submissions shall be limited to eight pages in addition to the Bill of Costs.

C. Horkins J.

Released: November 8, 2021

COURT FILE NO.: FS-20-18542

DATE: 20211108

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

D.A.S.

Applicant

– and –

P.S.

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: November 8, 2021

Appendix "A"

Tools One 2021

D.A.S. Male, 49, Resident of ON

Income

Employment income 576,000 Special Expenses (s.7)

Post-secondary expenses 32,000

P.S. Female, 50, Resident of ON

Adjustments to Income (CSG); s.19

Intentionally under-employed/unemployed 80,000 Property not utilized to generate income 310,000

Special Expenses (s.7)

Dan: Scenario 9 - 2021 D 576k P 390k

Prepared by: NIMAN MAMO LLP

September 14, 2021

Cautions/Overrides

Child Support (Table) - CSG Table Amount payable for child(ren) during 4 summer months only

Child Support (Table) - Child(ren) the age of majority or over; CSG Table Amount may be inappropriate

Child Support (Table) – D.A.S.'s and P.S.'s Income over $150,000; CSG Table Amount may be inappropriate.

SSAG – D.A.S.'s Income over $350,000; SSAG may not apply

Child Support Guidelines (CSG) Monthly $

Annual Guidelines Income

576,000

339,727

CSG Table Amount (current)

7,189

3,228

Child Support (Table)

3,961

0

Special Expenses (s.7)

2,667

1,503

Child Support (s.7 Payment) See Support Scenarios

D.A.S. P.S.

Child's portion of medical expenses

(From 2020 /TR)

15,031

Extraordinary educational expenses 3,000

Tax Deductions

RRSP deduction 8,100

Union, professional, or like dues 584

Spousal Support Advisory Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 15 years

Carrying charges/interest expenses -

investments

Carrying charges/interest expenses - legal fees

Tax Credits

Disability amount (transfer from dependant)

49,689

29,535

8,576

Recipient's age at separation: 39 years

"With Child Support" Formula

The formula results in a range for spousal support of $0 to

Tuition credits (child) 1,260

Medical expenses 15,762

Other non-refundable credits 7,276

Children Age Li es with Table Amt laimed by

Child 1 16 Shared Yes P.S.

Child 2 19 D.A.S Summer D.A.S. Child 3* 21 P.S. Yes P.S. Youngest child finishes high school 13 years from the date of separation.

Dependant credit claimed by P.S..

• denotes disabled child

$713 per month for an indefinite (unspecified) duration,

subject to variation and possibly review, with a minimum duration of 7.5 years and a maximum duration of 15 years from the date of separation.

SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement Location within the Ranges Restructuring eilings and Floors and E ceptions

v. 2021.7.8 (c) 2021 DivorceMate Software Inc. Page 1 of 2

Tools One 2021

Scenario 9 - 2021 D 576k P 390k I September 14 2021

Support Scenarios Monthly $

A SSAG Low B SSAG Mid C SSAG High

Gross ncome

Taxes and Deductions Benefits and Credits Special Expenses (s.7) Cash Flow Adjustments Spousal Support Child Support (Table)

Child Support (s.7 Payment)

D.A.S. P.S.

48,000 32,500

(22,754) (9,735)

0 0

(2,667) (1,503)

0 (4,864)

0 0

(3,961) 3,961

214 (214)

D.A.S. P.S.

48,000 32,500

(22,754) (9,735)

0 0

(2,667) (1,503)

0 (4,864)

0 0

(3,961) 3,961

214 (214)

D.A.S. P.S.

48,000 32,500

(22,372) (10,117)

0 0

(2,667) (1,503)

0 (4,864)

(713) 713

(3,961) 3,961

249 (249)

Net Disposable ncome (ND )

adult in household child in household

shared/summer child in household Payor's ND /Contribution

ercent o

18,832 20,145

4 3 1 7

18,832 20,145

4 3 1 7

18,536 20,441

47 6 2 4

CSG Special Expenses Apportioning % After-tax Cost/Benefit of Spousal Support

62.9% 37.1%

0 0

62.9% 37.1%

0 0

62.0% 38.0%

(332) 332

Support Scenarios Monthly $

$6,270 Spousal

Gross ncome

Taxes and Deductions Benefits and Credits Special Expenses (s.7) Cash Flow Adjustments Spousal Support Child Support (Table)

Child Support (s.7 Payment)

D.A.S P.S.

48,000 32,500

(19,397) (13,091)

0 0

(2,667) (1,503)

0 (4,864)

(6,270) 6,270

(3,961) 3,961

34 ( 34)

Net Disposable ncome (ND )

adult in household child in household

shared/summer child in household Payor's ND /Contribution

ercent o

16,239 22,739

41 7 3

CSG Special Expenses Apportioning %

After-tax Cost/Benefit of Spousal Support

54.7% 45.3%

(2,914) 2,914

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