COURT FILE NO.: FC-14-692-01

DATE: 20211125 CORRECTED DATE: 20220121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Connie Marie Howard

Applicant

– and –

Douglas James Howard

Respondent

Lori Aylwin, for the Applicant

Trevor B. Owen, for the Respondent

HEARD: May 26, 27, 28, 31 and June 1, 2021

Corrected Endorsement: The text of the original Endorsement was corrected on

January 21, 2022. The description of the correction is appended.

TRIAL ENDORSEMENT

McDermot J.

[1] The Respondent, Douglas Howard, is an extremely successful family physician in Barrie. Beginning with the emergency room at Royal Victoria Hospital, he extended his career to the Barrie Pain Clinic and a number of nursing homes in Barrie and the surrounding area. His income is reflective of the long hours he works; it is more than double the average of family physicians in Ontario.

[2] Dr. Howard believes that he is sharing too much of that income with the Applicant, Connie Howard. And he has, by any measure, paid a lot. When the parties separated on October 1, 2013, after nearly 18 years of cohabitation and 17 years of marriage, Ms. Howard had not worked outside the home since August 18, 1999. Since the parties separated, in one way or another, Dr. Howard has supported Ms. Howard and their three children. Initially, he deposited all of his pay into the joint account; after about 18 months, on July 22, 2015, the parties came to a mediated agreement on support. The parties agreed to fix Dr. Howard’s income at $601,000 per annum; he agreed to pay child support of $9,105 per month and spousal support of $12,280 per month. He continues to pay that spousal support today.

[3] The spousal support was not permanent. Dr. Howard only agreed to pay spousal support for five years after which there would be a review of support. Ms. Howard agreed that, whatever she was actually earning, on the review she would be imputed with income of at least $50,000 per year. Dr. Howard began this Motion to Change promptly upon the five years expiring. This five-day trial constituted that review of spousal support.

[4] Both parties devoted much of their testimony to the children and their involvement with them prior to and after separation. When the parties separated, the children, 14-year-old Gemma, 12-year-old Phoebe and 11-year-old Alex, all remained with Ms. Howard. After separation, Dr. Howard had limited parenting time with the children. Within four months of separation he stopped seeing them on any sort of regular basis. Today, Alex and Phoebe do not communicate with Dr. Howard although Phoebe did live with Dr. Howard and his second wife between October 2017 and June 2018. Gemma is the opposite; she has been living with Dr. Howard since March or April of 2020 and her relationship with her mother is strained although they do communicate.

[5] Prior to the COVID-19 pandemic, all three children were attending university away from home: Gemma in Victoria, B.C., Phoebe in Waterloo, Ontario, and Alex in London, Ontario. Dr. Howard also asked that child support be changed as a result of the children entering post-secondary education. By Minutes of Settlement approved by the court at the commencement of this trial, the parties settled ongoing child support issues, leaving spousal support the only issue for trial.

[6] As this is a review of spousal support and based upon the wording of the July 22, 2015 Order, Dr. Howard’s counsel submits that the Applicant’s claim be addressed as a de novo claim for support rather than a variation requiring a material change in circumstances. This means that the court must examine the basis of the Applicant’s entitlement to support as well as the respective incomes of the parties for support purposes.

[7] Dr. Howard also says that the Applicant has made inadequate efforts to become self-sufficient. He says that the claim of the Applicant for support is primarily non-compensatory, and that the Applicant could have easily obtained employment as a teacher during the marriage and since separation. He complains that the Applicant’s efforts since separation have been weak and ill-founded. In particular, during trial he and his counsel complained about the failure of Ms. Howard to accept suggestions from them as to career paths, including suggestions that she take courses to become a pharmacist, or move to British Columbia with the children to obtain employment there as a teacher. He suggests time limited support of no more than 12 years from separation, taking the parties to 2025 after which there would be three more years of support being “step down” amounts of spousal support. Support would therefore finally terminate in 2029.

[8] Ms. Howard says that Dr. Howard was controlling and abusive during marriage. She says that he is not the person to make suggestions as to her career opportunities and that this simply continues the course of abuse and control experienced by her during cohabitation and marriage. She asserts that she has made reasonable efforts to become self-sufficient and that her present work as a tutor and supply teacher are as good as it gets for someone out of the work force as long as she has been. Any further complaints are addressed by the imputation of $50,000 per annum as set out in the final order. More importantly, she says that her claim for spousal support is a strong compensatory claim and under the circumstances, the Respondent’s focus on self-sufficiency is inappropriate and that support should be indefinite, subject to a review after a period of time.[^1]

ISSUES

[9] The Applicant acknowledges that this Motion to Change is based upon the review clause contained in the July 22, 2015 Order. Although in argument the parties addressed this claim as a de novo application for spousal support, the Applicant’s factum suggests that the Respondent still needs to address a material change in circumstances required under s. 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) to support his claims in this application.

[10] Whatever the answer to that question, the July 22, 2015 Order does not address the basis of the Applicant’s claim for spousal support. That determination must be made as much of the final determination of this matter rests on the nature of Ms. Howard’s claim for support. As will be seen, reliance on the payor’s increases in post separation income depends on the claim being compensatory as opposed to non-compensatory. The income to be used is also dependent upon the nature of the claim and, more importantly, the nature of the claim is important to the determination of the duration and quantum of spousal support. Therefore, the basis for Ms. Howard’s entitlement to spousal support has to be the first order of business after which the details of support, being income, duration and quantum are to be addressed.

[11] Therefore, the issues to be addressed from the claims made by the Respondent are as follows:

a. Is this a de novo hearing for spousal support (i.e. is there a necessity for material change in circumstances)?

b. What is the basis of the Applicant’s entitlement for support?

c. What are the incomes of the parties for spousal support purposes?

d. What is the quantum and duration of support and should there be a future review of spousal support?

DISCUSSION

[12] As noted, entitlement comes first, income second and then the court determines quantification and duration of spousal support. There is no disagreement that spousal support is payable; the disagreements which have proved impossible of resolution are the Respondent’s income for support purposes as well as the amount and duration of support.

Is this a de novo hearing for spousal support?

[13] Ms. Howard’s factum acknowledges that this is a review of spousal support pursuant to the July 22, 2015 Consent Order. However, she suggests that due to the lack of details or delineation of the terms of the review, that a material change is necessary for this claim to proceed as set out in s. 17(4.1) of the Divorce Act which she says is mandatory and which states as follows:

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

[14] I note that the evidence at trial did not concentrate on this issue. Very little evidence was led by either party as to a material change in circumstances since July 2015. The children leaving the care of the Applicant for university since that order would be an obvious change in any event.

[15] Moreover, neither party disagreed that Ms. Howard was entitled to spousal support. The differences lay in the basis for that entitlement. Dr. Howard took the view that Ms. Howard was able to work during cohabitation and chose not to; indeed, he stated that she was offered opportunities during marriage to work. Ms. Howard said that her role within the marriage precluded employment as a teacher and that she is entitled to compensatory support as a result.

[16] In light of this, counsel at the de novo hearing, if that is what this is, concentrated on the nature of Ms. Howard’s entitlement to spousal support as well as quantum and duration. In light of the fact that s. 17(7) of the Divorce Act parallels the factors contained in s. 15.2(6), and in light of the fact that there is a clear change in circumstances insofar as the children are no longer living with Ms. Howard, the question must be asked what difference would it make as to whether this is a variation application or a review?

[17] The answer lies in the latter part of s. 17(4.1) of the Divorce Act which directs the court to take the change in circumstances into consideration in addressing its determination as to spousal support. A change is different from the actual circumstances at the time of the review and directs the court to make an award based on the change in circumstances since the original order. That is different from a review, which involves a new consideration of spousal support in light of the past and present circumstances, and not based upon the actual change in circumstances: see Choquette v. Choquette 1998 5760 (ON CA), [1998] O.J. No. 3024 (Ont. C.A.) at para. 3.

[18] However, as with a material change under s. 17(4.1), the terms of the review may (and should be) delineated in the order providing for the review: see Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at para. 39. Even if no change in circumstances is required, the court must take into account the terms of the review set out in the Consent Order. Ms. Aylwin submitted that the terms of the review in this case were delineated by the imputation of income of $50,000 per annum in the July 22, 2015 Order, thereby making this review only about the income of the Applicant. She also submits that if there is no limit to the review, then there must be a change in circumstances as required by s. 17(4.1).

[19] In the present case, other than the imputation of income to the Applicant, there is nothing in the final order which limits the terms of the review in this case. Paragraph 11 of the July 22 order simply states that, “the parties shall review de novo the issue of spousal support.” Paragraph 4 of the final order of Justice Jain dated May 13, 2019, states that “Ongoing spousal support… shall be reviewed in June 2020 as set out in the July 22, 2015 Final Order of this Court.” Rightly or wrongly, the parties determined between themselves that there would be what could be termed as an “open-ended review” which would encompass all of the terms of a spousal support order. Based upon the final order of July 22, 2015, the court is being asked to review all of the terms of the spousal support order “de novo” subject to the term that Ms. Howard’s income is imputed at a minimum of $50,000 per annum. This is especially so where the basis for the Applicant’s entitlement to spousal support is not delineated in the final order.

[20] Specifically, there is nothing in the order which would require the court to review support based upon the income of the parties only, as suggested in the Applicant’s factum. More importantly, the term in the order requires a “de novo” review which puts paid to the Applicant’s suggestion that a change in circumstances is necessary under s. 17(1) of the Divorce Act. I return to the decision of the Court of Appeal in Choquette at para. 3, where the court adopted a statement from Professor James G. MacLeod in an annotation to Trewin v. Jones 1997 1105 (ON CA), [1997] O.J. No. 399 (Ont. S.C.J.) at p. 420:

Under a review order, either party may return the matter to court at a fixed time. On the return, a court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies. Neither party has to prove a material change in circumstances. [emphasis added].

[21] That statement was also cited with approval by the Supreme Court of Canada in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920at para. 37.

[22] The Applicant relies upon L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 as authority for the fact that every application under s. 17 of the Divorce Act requires a material change in circumstances. However, that case is clearly distinguishable: in that case the court considered an agreement that was incorporated into a court order. There was no review clause in the agreement which is in contrast to the present case. As well, there was a finding by the court that there was no expectation in the agreement that the support recipient would become self-sufficient. In the present case, the imputed income of $50,000 per annum, much more than the Applicant is making now, speaks for itself. In the meantime, Leskun, a case decided under the Divorce Act, confirms that a review of spousal support, as in the present case, requires no change in circumstances and is a de novo matter. Therefore, the case law confirms the Respondent’s position that on a review there is no need for a change in circumstances.

[23] The imputation of income to the Applicant does not limit the review of spousal support under the terms of the order; at most it is a delineation of the terms of that review as far as her income goes. There is, therefore, no need for any change in circumstances as the parties specifically agreed to a review “de novo” which requires no change in circumstances under s. 17(1) of the Divorce Act.

What is the basis of entitlement for support?

[24] These parties were married and are divorced. Therefore, the jurisdiction for spousal support and any change in the present amount lies under the Divorce Act.

[25] This is a Motion to Change spousal support. However, as discussed above, because this is a review of spousal support pursuant to the July, 2015 Consent Order, no change in circumstances under s. 17(4.1) of the Divorce Act is required for an order to be made.

[26] As well, by agreeing to a review of spousal support in July 2015, the parties agreed that they would, in effect, kick the litigation involving spousal support “down the road” for five years. In other words, what is being considered now are the factors which would have been considered in a trial involving entitlement, duration and quantum of spousal support in the first place. As discussed above, the review is therefore a de novo consideration of spousal support under s. 15.2 of the Divorce Act, the relevant parts of which read as follows:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), 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.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) 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.

[27] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 at para. 15, Binnie J. determined that there were three bases for spousal support under the Divorce Act:

a. Compensatory support, described as “reimbursement of the spouse for opportunities foregone or hardships accrued as a result of the marriage” (para. 15).

b. Non-compensatory support, described as the recipient “spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown” (para. 40).

c. A contractual obligation to pay support arising from a domestic contract or any agreement between the parties as to their respective roles within the marriage (para. 38).

[28] As noted above, this makes a difference. The Spousal Support Advisory Guidelines suggest that compensatory support permits a longer (or indefinite) duration of spousal support as well as the quantum of support being in the mid to upper range: see Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (April, 2016) at pp. 10-11. As well, the case law makes clear that a compensatory entitlement to spousal support makes a difference as to post separation increases in income for the payor or duration of spousal support.

[29] Ms. Howard argues that she has a strong compensatory claim. She gave evidence that she was primarily responsible for the children and the household during the marriage. She said that she gave up a full-time job teaching in a secondary school in Vancouver to move to Maple, B.C. with the Respondent. She also testified that she obtained a full time teaching job in Maple, but after going on maternity leave with her oldest child, Gemma, her husband decided to take a job opportunity in Barrie, Ontario and she never went back to work because of the move. Her testimony was that she wanted to remain in British Columbia to be near her sister and the move to Barrie was solely to further the Respondent’s career.

[30] After the move to Barrie, Ms. Howard testified that she was solely responsible for caring for the children and household management. She noted that Dr. Howard elected to build a large home in Midhurst just outside of Barrie, and that she had to manage that home along with dealing with the children’s activities, which were extensive. She said that although Dr. Howard went to some of the children’s games and assisted with transportation on weekends, she was primarily responsible for getting the children to their games and tournaments. That continued after separation; when the parties separated in late 2013, the children were 14, 12 and 11 and continued with their activities. As the children became increasingly estranged from their father, Ms. Howard became increasingly responsible for child care and transportation in the years subsequent to separation.

[31] Dr. Howard denies this narrative. He says that Ms. Howard wanted to move to Barrie because she had family in Brampton and Toronto. He also says that Ms. Howard had plenty of career opportunities during marriage and that she simply did not take advantage of those opportunities. He also said that he hired cleaning services to assist Ms. Howard in household management and that she had the children do their own laundry when they turned 13; he testified that Ms. Howard’s duties were anything but onerous during cohabitation.

[32] He also says that during marriage he assisted Ms. Howard on weekends with the children’s activities and that he would have continued this after separation had Ms. Howard encouraged the children in seeing him. He notes that Phoebe moved in with him in 2017-18 and that Gemma lives with him now. He says that Ms. Howard has failed throughout to make reasonable efforts to become self-sufficient and that there is no reason why she could not be working as a secondary school teacher on a full-time basis right now. Further, he has provided her, through his lawyer, with numerous suggestions as to career suggestions including moving with the children to British Columbia or going into a pharmacist career path.

[33] With all of this, however, Dr. Howard does not deny the Applicant’s entitlement to spousal support. He suggests that her support claim is, however, non-compensatory. That is loosely defined as a support claim resulting from the breakdown of the marriage rather than arising from disadvantages to the recipient resultant from the marriage itself. As stated in Bracklow, at para. 49, the concept of non-compensatory support is meant to capture claims where “need is established that is not met on a compensatory or contractual basis” and which arises from the marriage relationship itself. In the present case, for example, where the marriage ended with Ms. Howard having no income, and Dr. Howard having income in the upper six figures, that need arises from the severe discrepancy in income at the end of this relatively long term marriage. The real issue for these parties is the relationship between the non-compensatory and compensatory aspects of that need arising from the marriage relationship itself.

[34] The basis for compensatory spousal support can be found in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, a decision that ended the concept of “causal connection” and also put the issue of self-sufficiency in its proper place. In that decision, L’Heureux-Dube J. determined that, in a traditional marriage where one spouse was responsible for the raising and care of the children while the other spouse pursued his or her career, this conferred a disadvantage on the recipient spouse and a corresponding advantage on the payor spouse, usually the higher income earner. Those are exactly the disadvantages that compensatory support is meant to redress. At para. 72, L’Heureux-Dube said:

Often difficulties are exacerbated by the enduring responsibility for children of the marriage. The spouse who has made economic sacrifices in the marriage also generally becomes the custodial parent, as custody is awarded to the wife 75 percent of the time, to both parents jointly in 13 percent of cases, and to the husband alone in less than 8 percent of divorces (see Evaluation of the Divorce Act -- Phase II: Monitoring and Evaluation, supra, at p. 101). The diminished earning capacity with which an ex-wife enters the labour force after years of reduced or non-participation will be even more difficult to overcome when economic choice is reduced, unlike that of her ex-husband, due to the necessity of remaining within proximity to schools, not working late, remaining at home when the child is ill, etc. The other spouse encounters none of these impediments and is generally free to live virtually wherever he wants and work whenever he wants.

[35] L’Heureux-Dube J. makes the purpose of compensatory spousal support clear at para. 80, where she states:

The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be a way to compensate such economic disadvantage.

[36] Despite the fact that Moge was decided nearly 30 years ago, it is as relevant today for traditional marriages as it was in 1992. The Ontario Court of Appeal continues to cite Moge in the context of compensatory support: see for example Gray v. Gray, 2014 ONCA 659 at para. 37. In Roseneck v. Gowling, 2002 45128 (ON CA), [2002] O.J. No. 4939 (Ont. C.A.), Weiler J.A. stated at para. 61:

Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse's career and loss of economic opportunity sustained as a consequence of raising children. This is particularly applicable where a property division is insufficient to achieve this result: see Moge, supra at 843-849. Where a spouse has the capacity to be self-sufficient but the spouse's ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared: Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.). As pointed out by Carol Rogerson in "Spousal Support Post-Brackow: The Pendulum Swings Again" (2001) 19 C.F.L.Q. 185 at 191, the compensatory principle fits most comfortably the situation where, as a result of having children, the parties have developed an interdependency and merger of their economic lives.

[37] In the present case, Ms. Howard left her employment as a secondary school teacher in Vancouver to move to Maple, B.C. to cohabit with and then marry Dr. Howard. She got a full-time job, but then left her employment in Maple, again as a secondary school teacher, when she had her first child, Gemma. She left British Columbia to follow her husband’s career path, moving to Barrie, Ontario. Although Dr. Howard says that Ms. Howard wanted to move to Ontario to be closer to her family, Ms. Howard denies this and says that she had wanted to return to Vancouver. In any event, it is without a doubt that the parties would not have moved to Barrie had Dr. Howard not obtained employment at Royal Victoria Hospital in this locality. There is little doubt that Dr. Howard’s job search governed the location that these parties moved to from British Columbia in 2000.

[38] The parties had three children in close succession, and there is again no issue that Ms. Howard was primarily responsible for caring for the children. There is also little doubt that the birth of the children affected Ms. Howard’s career. In September 1998, Ms. Howard obtained a full time job as a teacher in Maple; however, with the birth of Gemma in August 1999, Ms. Howard went on maternity leave and never went back to work after that. The parties then moved to Barrie in 2000.

[39] Although in his evidence Dr. Howard attempted to minimize Ms. Howard’s contribution to the household, I do not believe this to be the case. It is also without a doubt that Dr. Howard was extremely busy, working at the emergency room, working in his pain clinic and working for one or more nursing homes. Dr. Howard was able to turn his family practice specialty into an income more than double the average for a family practitioner in Ontario. There is also little doubt that he worked hard to do this, as he was often on call during weekends, and working long hours. I accept the Applicant’s evidence that this was made possible by her child rearing responsibilities for the three children, her care and management of a large 7,500 square foot home owned by the parties as well as her responsibility to get the children to their activities.

[40] The activities of the children are crucial to this analysis, especially after separation. These children were all very busy with extra-curricular activities: in her affidavit, the Applicant said that the children’s activities comprised “health appointments, music lessons, swimming lessons, summer camps, rep hockey, rep volleyball, taekwondo, school and community sports and school math contests.”[^2] In this statement, she neglected to mention the soccer and rep soccer, some of which was coached by Dr. Howard when the children were small.

[41] This is not to say that during the marriage Dr. Howard did not have anything to do with the children. It was his evidence, corroborated by Ms. Howard, that on weekends, he assisted in getting the children to their activities. However, after the marriage broke down, Dr. Howard became increasingly estranged from the children. He bears some responsibility for this: he cancelled a holiday with the children to go to the Caribbean with his new girlfriend (now his wife) soon after moving out of the matrimonial home and he admitted to introducing the children to his girlfriend too quickly. On December 18, 2013, soon after separation, Dr. Howard wrote an extremely offensive email to the children about how they were failing to do enough to support their relationship with him. He told his three children in the email that, “Basically, you have all taken a difficult situation and made it even worse. It seems like you want to put up road blocks to me as I try to stay connected with you. Everything has to be so difficult!”[^3] He accused each child of doing certain things to impair his relationship with them. This result was inevitable once the children reviewed the email as Dr. Howard had intended;[^4] the children stopped seeing him, leaving Ms. Howard responsible for all of the children’s activities.[^5] According to the Applicant’s evidence, since separation she has been solely responsible for caring for the children, including getting Alex to his rep hockey and the other children to their activities. She would sometimes have to rely upon her neighbours, friends and her father to get the children to these activities.

[42] Ms. Howard was also responsible for getting the children to their university campuses and setting up their housing. Photographs filed at trial show Ms. Howard assisting Gemma moving into a new apartment. She travelled to British Columbia twice at her own expense to assist Gemma in arranging for housing.

[43] The Respondent blames the Applicant for her failure to become self-sufficient, both during the marriage and subsequently. He complained of a job opportunity in Collingwood that Ms. Howard turned her nose up at prior to separation. The evidence of the Applicant was that this was merely a discussion at a barbecue with her friend, Jill Woods, whose husband was a vice principal in Collingwood. She said that Ms. Woods told her that she and her husband thought of Connie Howard because there was a math class at his Collingwood high school that she could teach. But Ms. Woods also had said that she and her husband had already dismissed this idea because Collingwood was too far for Ms. Howard to drive for just one class. There was no job opportunity, just a speculative conversation between neighbours.

[44] Since separation, Dr. Howard has been on a campaign to obtain employment for his ex-wife. He has made suggestions as to job opportunities, going so far as to suggest that Ms. Howard move back to British Columbia with the children to teach due to the recent lack of teachers in that province. He made this suggestion through correspondence from his lawyer, as he similarly suggested that she go into pharmacology or teaching French in Ontario. When Ms. Howard went back to university in an attempt to go to medical school, he also took a position on this, stating that it was a waste of time as medical schools only invest in younger students with a long future in medicine.[^6]

[45] Dr. Howard complained when giving evidence that Ms. Howard was dismissive of his suggestions. However, and it was apparent to me from the testimony of both parties, this was a bitter and acrimonious separation for the parties and the children. I agree with the Applicant that Dr. Howard was not the person to suggest career paths for her and it is not surprising that she would take a dim view of those suggestions during this very difficult and hostile marriage breakdown.

[46] Finally, Dr. Howard’s emphasis on self-sufficiency is exactly what L’Heureux-Dube J. criticized in Moge when she noted that there was a caveat to the goal of self sufficiency, it being “so far as is practicable.” At para. 53 she stated:

Many proponents of the deemed self-sufficiency model effectively elevate it to the pre-eminent objective in determining the right to, quantum and duration of spousal support. In my opinion, this approach is not consonant with proper principles of statutory interpretation. The objective of self-sufficiency is only one of several objectives enumerated in the section and, given the manner in which Parliament has set out those objectives, I see no indication that any one is to be given priority. Parliament, in my opinion, intended that support reflect the diverse dynamics of many unique marital relationships.

[47] Therefore, I can conclude that this was a traditional marriage which was long term, more than 17 years. During the marriage the parties agreed to move to Barrie primarily in order to further the Respondent’s career. The Applicant never worked in any sort of meaningful manner after taking maternity leave for her first daughter. The evidence supports Ms. Howard’s assertion that she was never expected to do other than what she was responsible for: the children and household management. If Dr. Howard discussed the issue of employment and career, these were suggestions only and served his purposes, not Ms. Howard’s. For example, Dr. Howard’s suggestions that she manage his investment properties were solely so that he could purchase those properties rather than for Ms. Howard’s career advancement. And I find that Dr. Howard’s post-separation career suggestions to his former wife were self-serving in nature: he did not wish to assist Ms. Howard to find a career; he provided her with career suggestions to unburden himself of his support obligation and to support his position that Ms. Howard had failed in her obligation of becoming self-sufficient.

[48] And if Ms. Howard’s duties were not overly onerous prior to separation, they certainly became so after separation, when Ms. Howard became solely responsible for the children’s numerous activities and for arranging for their post-secondary education. Dr. Howard, due to his own missteps after separation, was largely responsible for this as he alienated the children who were hesitant to communicate with him or seek his assistance for these activities.

[49] Those responsibilities limited Ms. Howard’s opportunities for career advancement. It appears to be only now that the children have left her care, she finds herself in a position to concentrate on self-sufficiency. I agree with Dr. Howard that some of her attempts in her re-education were ill-founded and unexplained. In particular, Ms. Howard should have been aware of the fact that her quest to become a physician was not advisable at her age; Dr. Maharajh, a friend of the Applicant, testified that she advised Ms. Howard that this was a “young person’s game” and that she would find it difficult to succeed in a medical career at her age. Ms. Howard was not able to adequately explain why she failed to apply at other universities for her necessary biology programs, relying upon the fact that the program was full at the University of Toronto as an explanation for why she did not continue on that pathway.

[50] But even if this was the case, it was also clear that Ms. Howard was reeling from the separation which she did not wish to occur: that was clear from her reaction to questions by the Respondent’s solicitor during cross-examination. Her missteps were excusable under the circumstances and cannot be seen as purposeful avoidance of career advancement or opportunities. She is now pursuing options as a supply teacher and tutor which will lead to a career for her. But she was still, until recently, burdened with the children’s activities and it is unquestioned that this was a traditional marriage throughout.

[51] I therefore find that Ms. Howard’s role within the marriage and after separation put her at a disadvantage which continues to this day. If income was not imputed at $50,000 per annum under the order, it is doubtful that income would be imputed at that amount today. I therefore find that, in addition to the non-compensatory elements of her claim, obvious based on the relative incomes of the parties, Ms. Howard has a strong compensatory claim for spousal support.

[52] In addition, Dr. Howard admits that Ms. Howard has a non-compensatory claim for spousal support. If that admission did not stand, I would find that to be the case anyways. Dr. Howard’s income is still well over $700,000 per annum, well more than the income of Ms. Howard even taking into account spousal support and child support. As well, Dr. Howard was able to loan his present wife $50,000 to start a business from which she earns more than $100,000 per annum. His standard of living has held firm after separation; were it not for support, Ms. Howard’s standard of living would have dropped substantially.

[53] I therefore find that Ms. Howard has both a strong compensatory and non-compensatory entitlement for spousal support.

What are the incomes of the parties for spousal support purposes?

[54] Pursuant to the July 22, 2015 Order, Ms. Howard’s income is already imputed at $50,000 per annum. Her income from supply teaching and tutoring is substantially less. Analysis is only required in order to impute income to Ms. Howard beyond this amount. Mr. Owen says that it should be, that Ms. Howard would have an income of nearly $100,000 per year had she gone into supply teaching immediately after separation in 2013.

[55] Dr. Howard’s income is more complex. Mr. Owen raised two major issues:

a. He says that the Respondent’s income should be “triangulated” as his income is well over the $350,000 “floor” in the SSAGs and because of this, an income figure should be chosen somewhere between $350,000 and the actual income earned by the payor.

b. He also says that the Applicant should not benefit from his client’s increases in income between the date of separation and the present, and that the Applicant cannot claim support based upon any income beyond the $601,000 used in the July 22, 2015 Order.

[56] Much of this trial concerned each party arguing over what income amounts to use. Dr. Howard’s income was analyzed extensively most recently by Gilbert & Larkin LLP and in 2015 by Marmer Penner, and these reports, used both for the original order and for this trial, have been filed as Exhibits.[^7] None of Dr. Howard’s income tax returns nor his Financial Statement were entered by him as exhibits at trial.[^8]

[57] Unlike the Respondent, Ms. Howard filed a financial statement as an exhibit to which were attached her Notices of Assessment.[^9] Ms. Howard’s actual T1 income tax returns were filed as exhibits to her affidavit (made an exhibit which constituted her evidence in chief in the trial). Those income tax returns allow the court to make findings of Ms. Howard’s actual income exclusive of the child and spousal support paid by Dr. Howard.

[58] There was no evidence as to Ms. Howard’s income prior to 2014. I assume it was very little considering the fact that she was attending at university for two years subsequent to the consent order being made in 2015.

[59] Under the July 22 consent order, income is imputed to Ms. Howard in the amount of $50,000 and as discussed below, I have found that income should not be imputed to Ms. Howard in an amount exceeding that. There is no issue taken that her actual income exceeded $50,000 per year, nor that it was well below that amount.

[60] Taking into account the various income valuations filed as well as the financial statements filed, it appears that the employment incomes of the parties,[^10] excluding support payments, can be summarized in the following table:

Year	Dr. Howard’s Income	Ms. Howard’s Income
2012	$764,000[^11]	Unknown
2013	$686,000[^12]	Unknown
2014	$601,000[^13]	$1,400[^14]
2015	$478,096[^15]	No employment income[^16]
2016	$479,709[^17]	No employment income[^18]
2017	$764,200[^19]	No employment income[^20]
2018	$711,854	$378[^21]
2019	$698,337	$10,695[^22]
2020	Not analyzed or disclosed	$10,362[^23]

[61] It is apparent that the vast majority of Ms. Howard’s income is based upon spousal support and child support paid by Dr. Howard. Even based upon the gross business income from tutoring, she has never come close to the amount being imputed to her ($50,000 per year) in these proceedings.

Income for Support Purposes of the Applicant, Connie Howard

[62] Dr. Howard’s counsel raised, as noted above, an issue of whether Connie Howard is underemployed to the extent that income should be imputed to her beyond the $50,000 per annum as imputed to her in the 2015 consent order.

[63] At the moment, Ms. Howard’s actual income, excluding spousal support, is in the range of about $1,750 per month or $21,000 per year.[^24] Her income as a supply teacher has been hit hard by COVID; she testified that whenever there was a shutdown of the schools and/or virtual schooling, her calls dried up completely.

[64] Mr. Owen rests much of his client’s case on the income grid for Ontario teachers. He says that when the parties separated in late 2013, Ms. Howard should have immediately taken up supply teaching which would have, he says, ended up in a full-time contract position. He filed that grid as an exhibit[^25] to prove that Ms. Howard would have income of about $90,000 per annum by this point in time.

[65] Mr. Owen also notes that in 2018, Ms. Howard could have moved to British Columbia with the children to obtain employment and he filed a news item to show that there was a strong demand for teachers in British Columbia at that time;[^26] Dr. Howard encouraged Ms. Howard to move to British Columbia with the children so that she could obtain employment, thereby relieving him from a portion of his spousal support burden as a result. He also filed evidence of employment bonuses for teachers in Saskatchewan.[^27] He encouraged her to become a pharmacist even though Ms. Howard testified that she had no interest in that profession. He says that income should be imputed to Connie Howard of substantially more than $50,000 per annum.

[66] Finally, Dr. Howard says that Ms. Howard wasted precious time in her quest to become a physician. Had she not gone on to obtain a three-year psychology degree post-separation and then attempted to obtain biology courses to permit her acceptance into medical school, she would have had earnings sooner than she now does.

Collective Agreement

[67] Regarding the Ontario teachers’ salary grid, Dr. Howard has failed to adequately prove the income that Connie Howard would have made. He filed only a snippet of the collective agreement, consisting of an introductory portion of the collective agreement and then the grids showing the income of teachers under that collective agreement. The income of a teacher depends upon where the employee lies on the grid on the second page of the exhibit combined with years of service. One axis is the number of years that the teacher worked; the other axis is a “category” which goes from “Category A” to “Category A4”. The evidence established that each category is based upon the post-secondary education that the individual employee has achieved; Category A4, presumably, would reflect teachers who had achieved a doctorate and Category A, the lowest paid category, would presumably be teachers who did not obtain a bachelor’s degree prior to going into teacher’s college as was the case years ago when a university degree was not required for entry into teacher’s college.

[68] Had Ms. Howard obtained a supply teaching job in 2013, we can speculate that she would have eventually obtained a contract teaching job although, again, there was little evidence of when this would have occurred considering Ms. Howard’s education, age, the necessity of her attending to her children’s activities and setting them up at university as well as the vagaries of contract positions and employment opportunities in the teaching profession in Ontario. There was insufficient evidence led at trial to permit the court to make a finding, on a balance of probabilities, when she would have secured full time employment had she commenced work as a supply teacher in 2013, immediately upon separation. I therefore decline to make a finding as to when Ms. Howard could have obtained employment as a teacher had she began working as a supply teacher in 2013.

[69] Even if the court could make that determination, there was no evidence led at trial as to which pay category Ms. Howard would have been in if she was working as a contract teacher. Mr. Owen failed to file the entire collective agreement which might have explained the various categories in the grid. He failed to call a union representative to explain the exhibit entered at trial. Ms. Howard has, as I understand it, one undergraduate honours degree in maths and sciences but there is no evidence as to where she lies on the grid based upon this degree. Dr. Howard, who identified the exhibit, had no idea of where the Applicant lay on the category list; neither did Ms. Howard who, when she testified, was obviously unfamiliar with the collective agreement.[^28] It is not up to the court, and is indeed seen as improper, to enter into its own research as to the details of the collective agreement. Mr. Owen’s suggestion that Ms. Howard should lie in the highest pay category, Category A4, and should be making in excess of $90,000 per annum at this point in time, is therefore not supported by the evidence led at trial.

[70] Therefore, I decline to make a finding of imputation of additional income to Ms. Howard based upon the portion of the Secondary School Teachers’ Collective Agreement filed.

Should Connie Howard Be Forced to Move to Obtain Employment?

[71] After separation, the children lived with Ms. Howard. Often, in these situations, when a former spouse suggests that she move with the children to another municipality for employment purposes, there will be howls of protest from the parent who remains behind and is deprived of contact with his or her children, with ensuing litigation.

[72] This case is the opposite. In this case, Dr. Howard testified that he suggested to the Applicant that she move to British Columbia with the children in order to obtain a full-time teaching position. He did this by forwarding a news article dated April 22, 2018, about the need for teachers in B.C. to Ms. Howard through his solicitor. He said that this would be beneficial to Ms. Howard because she could be near to her sister (who lives in Seattle) and the parties’ daughter, Gemma, who was attending university at the University of Victoria. He did not seem to be troubled in the least that this would result in his two younger children living far away from him.

[73] Mr. Owen suggested that Ms. Howard’s failure to move to British Columbia should result in an imputation of further income to her because that move and the B.C. employment opportunities would have increased her income beyond what the consent order called for.

[74] The test for imputation of income and efforts to obtain employment is reasonableness: were the efforts to obtain employment, or the decision to forego potential employment opportunities reasonable under the circumstances? This arises from the qualification on the objective of self-sufficiency in s. 15.2(6)(d)[^29] of the Divorce Act of it being “so far as practicable”: see O’Grady v. O’Grady, 2010 ABCA 109, [2010] A.J. No. 446, aff’g 2009 CarswellAlta 2287 (Q.B.). I do not find it reasonable for Dr. Howard to expect that his former wife pack up her children and herself, sell her home and move more than 3,000 kilometres away so that she can pursue a teaching profession and ease the burden of his spousal support. That goes beyond the pale for reasonable efforts to become self-sufficient.

[75] I also suspect that Dr. Howard’s suggestion was, in my view, an attempt to build his case that income should be imputed to her. I again note that this was an acrimonious and difficult separation and Ms. Howard deposed to her legal fees in this matter which totaled well over $150,000. To expect Ms. Howard to accept employment suggestions from an individual that she did not trust is unrealistic at best and disingenuous at worst. Dr. Howard was no longer her friend and it is reasonable that she would have viewed askance any employment or career suggestions from him.

[76] As well, Dr. Howard failed to provide proof of any sort as to whether Ms. Howard would have been earning more than $50,000 per annum had she moved to B.C. to take advantage of the teaching opportunities there in 2018. Mr. Owen did ask Ms. Howard as to whether the income for teachers was the same as the grid in Ontario previously discussed and she had no idea. Nothing else was offered.

Delays Arising from Ms. Howard’s Attempt to Enter Medical School

[77] Dr. Howard says that his former wife wasted precious time obtaining a three year psychology degree in a vain attempt to gain admission to medical school. He says that she should have concentrated on teaching which would have resulted in increased income by this point in time, eight years after separation. Alternatively, he had suggested that she become a pharmacist, more in line with her skills and age.

[78] I agree that the degree obtained from Lakehead University was not an opportune use of Ms. Howard’s time. She worked hard at it and achieved a decent GPA as a result and moreover completed a three year degree in two years.

[79] However, as I have mentioned above, Ms. Howard did not pursue her plan to enter medical school. In her affidavit, she says that she changed her mind because it was “unrealistic” to continue with her aspirations to enter medical school.[^30] In cross-examination, she could not adequately explain why she did not pursue her anatomy courses at a university other than the University of Toronto; when asked those hard questions, she had no real answer.

[80] The results for Ms. Howard at Lakehead show that she is an entirely competent individual who is well able to pursue a career and eventually become self-sufficient. It does not prove that her income should be found to be higher than that imputed to her by the July 2015 Order. She followed a path which she eventually found to be fruitless, and it is also apparent to me that this separation was difficult for her emotionally and financially. I would not be surprised if anyone in her situation would have pursued varying career goals that did not bear fruition. Considering her age and circumstances, I am not going to penalize her for going down a dead end, and then eventually changing course.

[81] Moreover, Mr. Owen has not provided me with any evidence as to how this delay might have affected her income in the end. In fact, if Mr. Owen is correct that Ontario teachers get paid more according to their post-secondary education, the psychology degree would place Ms. Howard on a higher pay grid than where she would have found herself had she gone back to work immediately after separation.

Result

[82] In a case such as this, the initial onus is on the party seeking to impute income to lay an evidentiary foundation for that claim: that the party asserting income be imputed bears some evidentiary burden of proof is confirmed by our Court of Appeal in Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552, where G.J. Epstein J.A. stated at para. 28 that, “The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.”

[83] As set out above, the record establishes that Respondent has not made out any evidentiary basis as to imputation of income to the Applicant beyond the income imputed by the July 2015 Order.

Income for Support Purposes of the Respondent, Douglas Howard

[84] There are two major issues under this heading. The first arises from the fact that the Respondent’s income is more than $700,000 per annum, well beyond the “ceilings” contained in the SSAGs. Mr. Owen suggests that the income for spousal support purposes lies somewhere in the middle of the ceiling amount ($350,000) and the Respondent’s actual income. He refers to this as “triangulation” of the Respondent’s income and spent much of his submissions, both written and oral, on this subject.

[85] The second issue concerns Dr. Howard’s post-separation increases in income. In the order the parties agreed to use an estimated figure of $601,000 for Dr. Howard’s 2015 income (his actual 2015 income was never disclosed). Dr. Howard’s income has increased since then; it well north of $700,000 per annum. Mr. Owen says that this income figure, the income around the date of separation, should continue to be used for ongoing support notwithstanding the income increases since separation.

Income of Dr. Howard Beyond the SSAG Ceilings

[86] The starting point in this analysis is the SSAG which provides a “ceiling” for use of those guidelines of an annual income of $350,000.[^31]

[87] The Revised User Guide[^32] for the SSAG makes it clear that there is wide discretion once the payor’s income rises beyond the ceiling. Included in the approaches:

a. The court can use the payor’s actual income, adjusting the support amount between the upper and lower ranges of the SSAG to take into account the ceiling;

b. The court can, as suggested by Mr. Owen, “triangulate” the income amount, choosing an income somewhere between the ceiling amount and the actual income amount.

c. The court can use the ceiling amount ($350,000) as the payor’s income level. There are instances where the income used for spousal support was the floor amount, while the income used for child support was the actual income of the payor: see for example J.W.J. McC. v. T.E.R., 2007 BCSC 252, [2007] B.C.J. No. 358 (S.C.).[^33]

[88] The User Guide suggests that the approach to be taken may depend upon how much beyond the ceiling the income was, adjusting the income amount more often depending upon how much beyond the ceiling the income amount is.

[89] Again, there is wide discretion. This is made clear by the following statement from the User Guide at p. 58:

Some commentators have expressed concern that there is too much defaulting to the formula range in high income cases, but no such pattern emerges from the mass of case law reviewed above. Individual high-income cases can attract considerable legal attention, but the wide discretion for these very high incomes will inevitably result in divergent and unpredictable outcomes. High income cases do not pose technical issues that can be solved by any set of guidelines, but raise fundamental theoretical questions about the rationale and purpose of spousal support.

[90] Mr. Owen relied heavily on one case, Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, as authority for the suggestion that the correct approach is to “triangulate” the income amount. In that case, the trial judge determined that the husband’s income, based on a three year average, was $1,000,925.34 and used that income for spousal support purposes, ordering indefinite support. He also ordered that the husband make an equalization payment in excess of $3 million.

[91] On appeal, the court upheld the trial judge’s determination of the equalization payment. The Court of Appeal also decided that the trial judge erred in setting support according to the husband’s income because of the large equalization payment which was, itself, capable of producing an income amount. The court confirmed that in determining spousal support for incomes over $350,000 per annum, the court must enter into “[a]n individualized, fact-specific analysis” in fixing spousal support which must include an analysis of the effect of the equalization payment (para. 107). Taking this into account, the court determined that the husband’s income should be set midway between his actual income of just over $1 million and the ceiling amount of $350,000, setting the husband’s income at $675,000 per year. Mr. Owen suggests that this analysis is therefore supported by the caselaw and should be applied to the present case.

[92] This suggestion ignores that an analysis of spousal support income over the thresholds should be an “individualized” process. I agree with Ms. Aylwin that, if Halliwell stands for anything, it is to support an individualized process considering the facts and evidence led at trial as well as the principle that the analysis must take into account the equalization payment ordered at trial. Property has always been part of a spousal support analysis: the order of business on the financial issues at trial has normally been child support first, property equalization second and finally spousal support taking into account the property (the means) that each party is left with after equalization.

[93] This is supported by a recent Court of Appeal case, Plese v. Herjavec, 2020 ONCA 810. In that case, referred to as a “Hollywood case” by the Respondent’s counsel,[^34] the trial judge ordered a large equalization payment, but took into account the wife’s need to purchase both a home and a cottage which reduced the wife’s capital available for income. The trial judge ended up using the husband’s actual income figure and not a midpoint.

[94] The Respondent Husband was content with the equalization calculation, but appealed the spousal support award. He said, inter alia, that the award was well outside of the “Halliwell range” and took the position that no spousal support was payable.

[95] Calling that position “patently unreasonable”, Strathy C.J.O. clarified and explained Halliwell. He confirmed that the approach to incomes beyond the ceiling should be individualized and fact specific. But more importantly, he said that there is no “Halliwell principle” which requires that the payor’s income over the ceilings should be set at a “triangulated” midpoint. At para. 57, Strathy C.J.O. stated:

Halliwell does not require the court to impute the payor's income at the mid-way point between the SSAGs "cap" and the payor's actual income. Rather, Halliwell, at para. 116, emphasizes what the SSAGs have always stated: "Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range." [emphasis in original].

[96] The appellant submitted that the trial judge, in using the payor’s full income amount, had gone outside the Halliwell range. Strathy C.J.O. said that this was “inaccurate” as “[t]he Halliwell range includes, at the upper end, the use of the full amount of the payor's income” (para. 58). Ms. Aylwin is correct in her submission that Halliwell stands only for the use of an individualized approach that must take into account the capital available to earn income derived from an equalization payment.

[97] This individualized approach was made clear in the variety of income determinations over the ceilings in the various decisions cited by the Respondent in argument:

a. In Dancy v. Mason, 2019 ONCA 410, the Court of Appeal upheld a motion judge’s decision to use the payor’s full income of $632,827 per annum and confirmed that Halliwell permitted use of the payor’s full income over the ceilings. It is to be noted that the payor’s income had substantially increased after separation and the court found it was within the court’s discretion to use that income based upon the Applicant’s compensatory support claim;

b. In Lefebvre v. Lefebvre, 2020 ONSC 310, Fryer J. considered spousal support payable by a physician whose income was well over the ceilings. In light of the relatively small equalization payment, the court determined that the full amount of the payor’s income would be used for spousal support purposes and that there was no reason to depart from the SSAG notwithstanding the income being well over the ceilings.

c. In Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, the trial judge used the full income of a party who earned $644,172 per year, well over the ceilings, but set spousal support at the lower end of the SSAG range in light of the non-compensatory nature of the claim. The Court of Appeal upheld this approach and confirmed that this was within the “pure discretion” permitted to the trial judge under Halliwell.

d. In Zapfe v. Zapfe, 2019 ONSC 4065, Kurz J. found the payor’s actual income to be in excess of $2,000,000 per annum. He also found the wife’s claim to be non-compensatory in nature. He used the SSAG to find a support figure “just over the high end of the mid-way point between $350,000 and $2,090,000.” In other words, he used an income figure midway between the ceiling amount and the actual income; he then used a support figure which was more than the high end of the support payable at that midpoint.

e. Lastly, in B.S. v. B.W., 2019 ONSC 2769, the husband brought a motion to terminate spousal support. The motions judge used a midpoint figure between the ceiling amount and the payor’s full imputed income to address “the compensatory, contractual and reduced need based elements of support.” She declined to terminate support but used a midpoint figure.

[98] It appears to me from the cases that there is wide discretion in determining spousal support payable where the Respondent’s income is beyond the ceiling. The figures in the SSAG are no longer presumptive for income above the ceilings and different income figures from the payor’s income may be used. It appears that there usually must be, however, some basis to depart from the payor’s income as was done in Halliwell. In that case, it was the sizeable equalization payment made to the support recipient; in Zapfe, the income was well beyond the ceiling and the claim was non-compensatory; in B.S., the recipient’s needs were found to have been reduced in that motion to change.

[99] None of those reasons apply in the present case. The equalization payment in the present case was not “sizeable”; it was only $26,619.00 (in addition to the funds received by each party for the sale of the matrimonial home of $303,166). I have determined above that Ms. Howard has a strong compensatory claim for spousal support. As well, Dr. Howard’s income is nothing close to the incomes in Zapfe, where the payor made more than $2,000,000 per annum.[^35] Those cases are all distinguishable from the present case where the equalization payment was much more modest as was Dr. Howard’s income.

[100] In the present case, therefore, there does not appear to be any basis to depart from Dr. Howard’s actual income as disclosed through the income valuations which were put into evidence.

Post-Separation Increases in Income

[101] This may not be as much of an issue as made out by Mr. Owen. My July 2015 Order was based upon an estimated annual income of $601,000 for 2014 as set out in the Marmer Penner income valuation. That figure was significantly less than Dr. Howard’s income for 2012 or 2013; in 2012, Dr. Howard’s income was well in excess of $700,000 and in 2013, his income was nearly $690,000. There was no evidence provided at trial as to whether the Marmer Penner estimate was accurate or not, and I was provided with no evidence as to Dr. Howard’s actual income for 2014. These parties separated in 2013, and if I was going to use the income for Dr. Howard from the date of separation, I would have thought that the income figure for that year, $686,000, would be used for support purposes today.

[102] That said, Ms. Aylwin urges me to average Dr. Howard’s last three years of income for spousal support purposes, and not to use the amounts from date of separation. That would result in an annual income of $724,797 for spousal support purposes.

[103] There is a mix of cases regarding this issue. But some of the cases on this topic can be summarized as follows:

a. The inquiry is a fact-based issue determined on the circumstances of each individual case which requires a trial of the issue. See James v. James, 2010 ONSC 3445 at para. 36 and Graves v. Delefice, 2015 ONCJ 162 at para. 34.

b. When there is a finding of a compensatory basis for the spousal support claim, the recipient may be entitled to share in the post-separation increases in the payor’s income: see Moldaver v. Warren, 2016 ONSC 5933 at para. 105 and Thompson v. Thompson, 2013 ONSC 5500 at para. 103(c).

c. On the other hand, where there was “no compensatory basis for the Respondent’s support claim”, post-separation increases in income were not used in the calculation of spousal support: see Thompson v. Thompson, supra at para. 215. See also Charleton v. Coburne, 2016 ONSC 5415 at para. 6; Hersey v. Hersey, 2016 ONCA 494 at para. 20; Tanner v. Tanner, 2017 ONSC 7182 at para. 60.

d. There is case law which suggests that the post-separation increases in income should not be used for support purposes unless the recipient can demonstrate that she contributed to the payor’s career or credentials from which he earns income and pays support: see Sawchuk v. Sawchuk, 2010 ABQB 5 at para. 29 and Kohan v. Kohan, 2016 ABCA 125 at para. 39. I note that this may come close to “causal connection”, something put paid to by Moge more than 20 years ago; however, the SSAG Revised User Guide states that the issue of causation would be better described “as a ‘link’ or ‘connection’, between the marriage and the increase after separation” [emphasis in original].[^36]

e. It appears that the link or connection between marriage and post-separation increase may be established by a finding that the recipient has a strong compensatory claim without more. In Slongo v. Slongo, 2017 ONCA 272, [2017] O.J. No. 4564 the Court of Appeal found that compensatory grounds for support, where the wife had undertaken child care and household management responsibilities throughout the marriage, warranted a finding that “[p]ost-separation earnings were achieved at the level at which they were, at least in part, because of the wife's contribution to the husband's career” (para. 107). In Gray v. Gray, 2014 ONCA 659, [2014] O.J. No. 4519 at para. 50, Lauwers J.A. determined that the post-separation income would be used because the payor’s “increase [in income] was facilitated in part by Ms. Gray having primary responsibility for the children following separation.”[^37]

f. That contribution may arise from a compensatory claim for support where the payor retains the same profession even where the payor changes employers after separation: See Chapman v. Chapman, [2009] O.J. No. 5994 (S.C.J.) at paras. 20-23.

g. Without proof that the claimant’s spousal support claim was compensatory, at least one court has found that long term cohabitation combined with the integration of the parties’ financial affairs and the fact that the payor retained the same career as during the parties’ marriage after separation warranted the sharing of post-separation income increases: see Farnum v. Farnum, 2010 ONCJ 378, [2010] O.J. No. 3795 at para. 11.

[104] In the present case, I have found that Ms. Howard has a strong compensatory claim for spousal support as well as a non-compensatory claim. Even though the SSAG provide for a time limited spousal support claim,[^38] cohabitation was long term, more than 17 years. Ms. Howard moved from her home in British Columbia to Barrie, Ontario to further Dr. Howard’s career, and she fulfilled her role in the marriage, caring for the children and in household management, allowing Dr. Howard to further his career. There is no doubt that Dr. Howard worked hard in his career and continues to do so; however, he also had three children and Ms. Howard’s work in the large family home as well as her care for the children permitted Dr. Howard to work primarily at building his career and increasing his income opportunities as a family physician.

[105] As well, what occurred after the separation is crucial. Dr. Howard quickly estranged the children through his own actions, leaving Ms. Howard with almost all of the work to do with the children who were heavily involved in their respective activities prior to separation. Although it can be argued that Ms. Howard stumbled in her career plans after separation, she also had to continue with the children’s activities and set them up at their universities. This impaired, to some extent, her ability to become self-sufficient. And as well, this continued to allow Dr. Howard to concentrate on his own career, and assist his new wife in setting up her own business for which he loaned her $50,000 and from which she earns more than $100,000 per annum. The fact that when Phoebe moved in with Dr. Howard in October 2017 he was unable to transport her to school, and instead purchased her a vehicle to allow her to commute from Newmarket to her high school on Highway 400, speaks volumes about the work that Ms. Howard did with the children after separation and the measures that Dr. Howard had to take to pursue his career in the face of child rearing responsibilities.

[106] I therefore find that this is well within the cases which have permitted use of income increases since the date of separation. The Applicant’s continued compensatory claim, the length of cohabitation and the Applicant’s work with the children after separation lead me to find that Dr. Howard’s present income, rather than his income from the date of separation, be used for spousal support purposes. I therefore accede to the Applicant’s request of averaging Dr. Howard’s last three years of income, set by his income valuator, for support purposes.

[107] In the Minutes of Settlement dated May 18, 2021, the parties settled their issues in this Motion to Change concerning child support: see the SSAG Revised User Guide at p. 21. They agreed to use an income amount of $711,000 per annum and came up with a formula for the sharing of the children’s university expenses and for addressing base child support if the children were living at the respective parties’ homes or, alternatively, at university residence. They also agreed that the children would fall away as they complete their present university programs, Gemma in teacher’s college, Phoebe in university and Alex at the Ivey School of Business at Western.

[108] Incomes for the purposes of child support and spousal support can be assessed at different amounts for obvious reasons. For example, post separation income increases will inevitably be used for the purposes of child support, but, as discussed above, not necessarily for spousal support. In the present case, the parties agreed to an income amount of $711,000 per annum, but vigorously argued the income for spousal support at trial. The amount agreed to for child support was raised by neither party during submissions or in evidence at trial and I am not bound by that income amount in setting spousal support.

[109] I have already stated that the Applicant’s full income should be used for support purposes, and not a reduced income due to the SSAG ceilings. Based upon the Applicant’s request, I therefore find that the Respondent’s annual income for spousal support purposes to be $724,797.

Quantum, Duration and Review

[110] The parties have, as can be imagined, different positions on the issues of quantum and duration as reflected in the draft orders submitted to the court after the trial and counsel’s submissions at trial.

[111] The Respondent’s position is that support should be time limited. The suggestion is that spousal support be payable by the Respondent until 12 years after the date of separation. Once that 12 year period expires, Mr. Owen submits that the support should “step down” over the next three years. Mr. Owen suggests that after that three year period, Dr. Howard’s spousal support obligation come to an end. Therefore, taking into account the step down period, spousal support would have a duration of 15 years after the date of separation, coming to an end in 2029. As noted above, the duration of support under the SSAG is between 8.75 and 17.5 years based upon the parties’ cohabitation for 17.5 years, and this duration is therefore within those time limited support scenarios.

[112] The Applicant’s position is substantially different. In her submissions made after trial, Ms. Aylwin suggested that support be indefinite subject to a review. However, in her draft order delivered after trial, Ms. Aylwin suggested a time limit to support and that it come to an end on December 31, 2031, 18 years and 4 months after separation. She also suggested one step down in spousal support from January 1, 2029.

[113] The quantum of spousal support is further confused by the parties’ respective obligations for the children as they re-enter university (after more than a year of virtual learning because of COVID-19 when the children lived at home). Phoebe and Alex lived with the Applicant and Gemma lived with the Respondent. However, commencing on September 1, 2021, all three children are anticipated to return to university as follows:[^39]

a. Gemma will be returning to the University of Victoria for a two year teaching degree;

b. Phoebe will be returning to Waterloo to complete her final year of engineering. Phoebe aspires to be a dentist and will be applying for dental school.

c. Alex will continue at the Ivey School of Business at Western University. He is anticipated to graduate in June, 2024; however, he may choose the option to continue to obtain a law degree through one extra year of university which would bring his expected graduation to June, 2025.

[114] When the parties signed the Minutes concerning child support, they anticipated that the children would all be returning to their various campuses on September 1, 2021. Until then, the parties agreed that the parties would pay differential support, with the Respondent paying child support for two children living with the Applicant based on income of $711,000 per annum and the Applicant paying child support for Gemma based on imputed income of $50,000 per annum. The differential support under the agreement was expected to be $6,034 per month commencing July 1, 2020, until September 1, 2021, when the children were expected to return to campus. After this date, the parties agreed that only “summer” support was payable by each of the parties as the children would only be residing at home during the summer: again, differential support payable by Dr. Howard was agreed upon commencing September 1, 2021, in the amount of $2,783 per month.

[115] After September 1, 2021, the children began to fall away. The parties agreed that base support was only payable until each of the children each obtained their undergraduate degree (although this appears to include Gemma’s teacher’s college degree) after which the parties agreed to cover the anticipated shortfalls for the section 7 university costs (between the RESP proceeds and actual costs) on a 75% / 25% basis (Dr. Howard bearing the larger share).

[116] But what is crucial to the quantum of spousal support is the amount of child support payable each year. The parties have supplied me with draft orders which reflect their respective positions on the various scenarios as to the children being in university, base child support payable and the termination of spousal support:

Year and Scenario	Base child support payable	Applicant’s position re spousal support[^40]	Respondent’s position re spousal support[^41]
July, 2020 – September, 2021: All children living at home	$6,034 per month	$13,000 per month (based on SSAG midpoint of $12,483 per month and high-end support of $13,825 per month)	Respondent continues to pay spousal support of $12,280 under the July 15, 2015 order until August 31, 2021.
September, 2021 to April, 2023: All three children in undergraduate university programs	$2,783 per month in “summer” child support	$19,950 per month (based on SSAG midpoint of $18,295 per month and high-end support of $20,212 per month)	$11,383 per month based upon midpoint SSAG amount.
April, 2023 to April, 2024 (or April, 2025 if Alex continues to a law degree); Gemma has completed her teacher’s degree and Phoebe has completed her undergraduate degree: no base support payable for either.	$1,779 per month payable by Respondent in “summer” support for Alex only	$19,000 per month (based on SSAG midpoint of $18,984 per month and high-end support of $20,862 per month).	$9,351 per month payable until October 1, 2025 (midpoint SSAG figure)[^42]
May 1, 2025	No base child support payable.	$18,500 per month (based on SSAG midpoint of $17,221 per month and high-end support of $19,682 per month).
October 1, 2025	No base child support payable.		$12,000 per month (first step down amount after 12 years of spousal support: midpoint spousal support under SSAG of $14,062 per month with no child support)
October 1, 2026			$10,000 per month (second step down after 13 years of spousal support).
October 1, 2027			$8,000 per month (third step down after 14 years of spousal support).
October 1, 2028			Spousal support terminates after 15 years of spousal support.
January 1, 2029		$15,000 per month (first step down after more than 16 years of spousal support)
December 31, 2031		Spousal support terminates after 18 years, 4 months.

[117] In her trial submissions, Ms. Aylwin suggested that support be indefinite with an eventual review as the children fell away. She appears to have now abandoned that position. In any event, that submission cannot be honoured. The parties were able to take into account different child support scenarios as set out in the chart above and the variations of support that would occur as the children were in university; in fact, the only uncertainty was whether Alex would take an extra year at Ivey to obtain a law degree. If there are few or no uncertainties for the future, then a review of support is discouraged: see Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 where Lang J.A. said (at para. 70):

Review orders in effect turn an initial order into a long-term interim order made after trial. Accordingly, they should be the exception, not the norm. They are appropriate when a specified uncertainty about a party's circumstances at the time of trial will become certain within an identifiable timeframe. When one is granted, it should include specifics regarding the issue about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved.

[118] See also Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at para. 37 where Binnie J. stated that review orders should only be used where there is “genuine and material uncertainty at the time of the original trial.” In the present case, as demonstrated by counsel’s submissions on the changes in spousal support based upon base child support, there is sufficient certainty to make a final order without the need for review.

[119] Based upon the draft orders provided post-trial, both counsel have agreed that Dr. Howard’s spousal support should be time limited. The major issue is whether the spousal support should be payable for more than 18 years as requested by the Applicant and slightly over 15 years as suggested by the Respondent or somewhere between.

[120] The other issue is quantum; as can be seen from the above chart, the parties are far apart on that issue. However, much is affected by the Respondent’s use of his “income” from the July 15 order of $601,000 per annum, something that I have already found to be ill-founded. The amounts supplied by the Applicant are closer to reality as they are based upon the income amount that I have determined is to be used, being $724,797 per year.

[121] Generally, where the court finds there to be a strong compensatory claim for spousal support, the SSAG have dictated that the award should be in the mid to high range of the support payable: see the Revised Users Guide at p. 45 et sequent and Monahan-Joudrey v. Joudrey, 2012 ONSC 5984. However, that may not be the case where the payor’s income is well above the ceiling amounts in the SSAG: see, for example, B.S. v. B.W., 2019 ONSC 2769 at para. 55 where Swartz J. set the support at the lower end of the SSAG amounts in part to address the fact that the payor’s income was well above the ceiling amounts. In that case as in the present, entitlement was based upon both compensatory and non-compensatory grounds.

[122] As well, I must take into account the fact that, pursuant to the pre-trial settlement of child support, Dr. Howard is paying 75% of the shortfall in the children’s educational costs. There is no question that this would impact his net income until well into 2025 or later.

[123] Although support is compensatory in nature, the Respondent has pointed out that the Applicant has stumbled badly in becoming self-sufficient. Although there is good reason for this, the Applicant did proceed to spend two years in a fruitless effort to go to medical school; she was advised not to do this, not only by Dr. Howard, but also by her friend who was also a physician, Kamla Maharajh.

[124] However, that is to some extent set off by the fact that Ms. Howard was largely responsible for the children and their very busy lives after separation. This was largely on Dr. Howard, who was insensitive to the children after separation and largely alienated his younger two children. Alex still does not talk to his father.

[125] However, notwithstanding this, Ms. Howard was able to obtain a three-year psychology degree in two years almost immediately after separation. This indicates to me that Ms. Howard has a great deal of energy and talent and is an intelligent woman, well able to maintain a career. Ms. Howard has now turned her energy to her existing qualifications as a teacher, and is supply teaching and acting as a tutor. I do agree with Dr. Howard that she should be concentrating on moving forward in a career in that area, and she is mistaken if she believes that Dr. Howard should support her indefinitely while she continues to work part time when all of the children are in university or become independent. Although self-sufficiency is only one of the factors for the setting of spousal support quantum and duration, Ms. Howard remains a qualified teacher and should be seeking out long term occasional job placements with a view to achieving a full time career as a teacher. That is obvious, and should also be reflected in the support award.

[126] The other factor that I take into account is the fact that, since separation, Ms. Howard has managed to accumulate (perhaps though the proceeds of the home, perhaps through thrifty money management), RRSPs in the amount of nearly $604,000. I am not critical of this; there is no reason why RRSPs should not be saved when Ms. Howard is earning substantial support income from her husband. However, this goes to the issue of need and whether Ms. Howard has need of all of the support payable by her husband.

[127] I am therefore going to set spousal support at the lower end of the SSAG to take into account the income of Dr. Howard above the ceiling, the issue of Ms. Howard’s need and the requirement that Ms. Howard become self-sufficient and proceed to capitalize on her teaching opportunities. I also take into account the fact that Dr. Howard has the major burden on him to support the children in university.

[128] The support is adjusted year to year based upon the children’s university costs and the base “summer” support payable by the Respondent as set out in the consent order for child support granted at the commencement of trial and as amended by the consent order recently entered into regarding Pheobe and her practicum.[^43] Based upon the SSAG calculations filed as schedules A, B, C and D attached hereto, spousal support changes according to the child support payable by the Respondent from year to year. In April 2025 full “without children” spousal support becomes payable until termination.

[129] I find that the appropriate term for spousal support is 17 years with a three year “step down” in the last years of the term of support. This means that support would come to an end in September 2030.

[130] Therefore, based upon a finding that the Respondent’s income for spousal support purposes is $724,797 per year, final order to go for the Respondent to pay the Applicant spousal support as follows:

a. Between July 1, 2020 and December 31, 2021, the Respondent shall pay spousal support in the amount of $12,000 per month (draft SSAG calculation prepared by Applicant’s counsel attached as Schedule A).

b. Between January 1, 2022 and April 30, 2023 (three children in post graduate educational programs; “summer” child support payable), the Respondent shall pay spousal support in the amount of $17,000 per month (draft SSAG calculation prepared by Applicant’s counsel attached as Schedule B);

c. Between May 1, 2023, to April 30, 2025, or April 30, 2024, if Alex elects not to continue to complete a law degree, whichever comes first, (one child in university, “summer” child support in a lesser amount continuing), the Respondent shall pay spousal support in the amount of $17,500 per month (draft SSAG calculation prepared by Applicant’s counsel attached as Schedule C);

d. From May 1, 2025, or May 1, 2024, if Alex elects not to complete a law degree, whichever comes first, to September 30, 2027, (no dependent children for child support purposes) the Respondent shall pay spousal support in the amount of $15,500 per month (draft SSAG calculation prepared by Applicant’s counsel attached as Schedule D);

e. Commencing October 1, 2027, spousal support shall step down as follows:

i. From October 1, 2027 to September 30, 2028, spousal support shall reduce to $12,000 per month;

ii. From October 1, 2028 to September 30, 2029, spousal support shall reduce to $9,000 per month;

iii. From October 1, 2029 to September 30, 2030, spousal support shall reduce to $6,500 per month.

f. Spousal support shall terminate and shall no longer be payable on September 30, 2030.

SUPPORT INSURANCE

[131] No evidence was led at trial in respect of the support insurance required under the final orders in this matter. There was no evidence led as to the Respondent’s insurability or as to the appropriate amount of support life insurance to be maintained by the Respondent and there was no request in the Respondent’s motion to change to vary the support insurance to be maintained by the Respondent. No submissions were made by either counsel concerning support insurance.

[132] There shall be a final order to go as per para. 12 to 14 inclusive of the Applicant’s draft order, filed.

COSTS

[133] If the parties cannot agree as to costs, written submissions may be made by the parties in respect to the costs payable for trial as well (as agreed by the parties) as to the costs payable for the child support variation proceedings. Costs submissions shall be filed on a 20 day turnaround, with the Applicant serving and filing costs submissions first, and the Respondent second. No reply submissions are to be filed. Costs submissions to be no more than five pages in length not including offers to settle and bills of costs.

McDermot J.

Corrected date: January 21, 2022

January 21, 2022 – Correction:

1. Footnote 33 (page 21) now reads: The parties have agreed to use the Respondent’s income amount of $711,000 per annum for child support.

[^1]: This was Ms. Howard’s position at trial. Her position appears to have changed as reflected in the draft order filed after trial pursuant to my post-trial direction. [^2]: Affidavit of Connie Howard sworn May 5, 2021, para. 33. [^3]: Ex. A to the Affidavit of Alexander Scott Fennell sworn May 3, 2021. [^4]: The email was sent to Ms. Howard and to two individuals (whose names were not raised at trial) named Donna and Nadia Puranda. The email was sent by Nadia Puranda to one of the children (canuckavenger@yahoo.com) with a message, “Nice text to get from your Dad a few days before xmas and the day before he takes off with his girlfriend.” That it was intended to go to the children was clear from the first lines of the email from Dr. Howard, “Message to the kids: Kids!” [^5]: In fact, Alex continued to see his father, but later decided not to see his father because of a disastrous rep hockey game in Chatham in January, 2014, when Dr. Howard transported Alex to the game, but then left the tournament to go and see his girlfriend, leaving someone else to drive Alex home. After that, Ms. Howard testified that she suggested that she drive Alex to activities and that Dr. Howard drive Gemma and Phoebe, but according to her, Dr. Howard refused that offer. [^6]: It is to be noted that Ms. Howard’s witness, Kamla Maharajh, also a physician, was also pessimistic about Ms. Howard’s possibility of becoming a doctor, more due to age and energy levels necessary to work in the medical field. [^7]: Trial Ex. 7, 8 and 9. [^8]: Although a number of his income tax returns were exhibits to the Applicant’s affidavit sworn May 5, 2021 and filed as Trial Exhibit 25. [^9]: Trial Ex. 26. [^10]: I have excluded divided and other income from Ms. Howard’s income: most of her income between 2015 to the present has been spousal support and child support. [^11]: Marmer Penner Income Report 2012 – 2014, Trial Ex. 10, p. 7 [^12]: Ibid. [^13]: Ibid. Estimate only in the Marmer Penner report; actual income not supplied or analyzed. This was the income amount used in the July 22, 2015 consent order. [^14]: Employment income. In addition, Ms. Howard received dividends of $88,382 and $37,377 in spousal support income. [^15]: 2015 Income Tax Return for Dr. Howard: Ex. 2 to the Affidavit of Ms. Howard sworn May 5, 2021. [^16]: $2,160 in child care benefit plus $41 in interest income. As well, Ms. Howard declared $148,434 that year in spousal support. [^17]: From Dr. Howard’s income tax return, not made an exhibit at trial. [^18]: $1,080 in universal child care benefit plus $41 in interest income. Spousal support of $149,508 declared ($255,276 in total support paid). [^19]: Updated Gilbert & Larkin Income Report dated March 13, 2021, Trial Ex. 9, p. 2. Dr. Howard’s income in this chart for 2018 and 2019 are from the same source. [^20]: $147,360 in spousal support payments declared. No other income. [^21]: $147,360 in spousal support payments declared. [^22]: $10,417 in employment income as a supply teacher. $278 in tutoring income (on $7,370 in gross busines income). $147,360 in spousal support payments declared. [^23]: $7,932 in employment income as a supply teacher (Ms. Howard testified that her income decreased because of COVID). $2,192 in tutoring income (on $11,000 in gross business income). $238 in interest income. $147,360 in spousal support payments declared. [^24]: Based on her testimony and her Financial Statement. [^25]: Trial Ex. 5 [^26]: See Trial Ex. 3. [^27]: News article filed as Trial Ex. 4. [^28]: She is a supply teacher and has a different collective agreement which does not use the grid. [^29]: Or s. 17(7)(d) if the Applicant is correct that this is the applicable section. [^30]: Affidavit of Connie Howard sworn May 5, 2021 filed as Trial Ex. 5, para. 84. [^31]: Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines (July 2008), online: Department of Justice Canada at p. 110 https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/pdf/SSAG_eng.pdf. [SSAGs] [^32]: Carol Rogerson and Rollie Thompson, The Spousal Support Advisory Guidelines: The Revised User Guide (April, 2016) online: Department of Justice Canada at p. 55 https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/PDF/ug_a1-gu_a1.pdf. [User Guide] [^33]: The parties have agreed to use the Respondent’s income amount of $711,000 per annum for child support. [^34]: Mr. Herjovic was one of the Dragons on the television show, “Dragon’s Den.” [^35]: In Zapfe the equalization payment exceeded $1.7 million. [^36]: SSAG Revised User Guide, supra at p. 82. [^37]: In Thompson, supra at para. 103(c) Chappell J. stated that "Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases." However, as noted in the SSAG Revised User Guide [at p. 84], this is not supported by the case law, which has often allowed the use of post separation income for the purpose of spousal support based on a finding of a compensatory claim alone. [^38]: Cohabitation was under 20 years and Ms. Howard did not achieve the “65” factor in the combination of age and years of cohabitation. [^39]: As set out in the Minutes of Settlement concerning child support dated May 18, 2021. [^40]: Based on Respondent’s income of $724,794 per annum [^41]: Based on Respondent’s income of $601,000 per annum [^42]: The Respondent used $1,515 per month for child support figure rather than the amount set out in the Minutes of Settlement of $1,779 per month. [^43]: That order provided that between September and December, 2021, child support payable by Dr. Howard would be $5,436 per month, which was $6,495 per month payable by him up to August 31, 2021 according to the final settlement of child support amounts which was ordered prior to trial.