Reid v. MacLean, 2022 ONSC 1664

COURT FILE NO.: FS-15-401235-01

DATE: 20221118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA REID

Applicant

– and –

CHAD MACLEAN

Respondent

Catherine Hibberd, for the Applicant

Karen Ballantyne, for the Respondent

HEARD: March 7, 8, 9, 10, 11, and 14, 2022

papageorgiou j.

[1] This motion to change brought by the respondent Chad MacLean (“Chad”) proceeded to trial with affidavits, some limited examination in chief to mark exhibits, cross examinations and re-examinations. This was a hybrid trial with Chad, his counsel and his witness appearing on zoom while the applicant, Angela Reid (“Angela”), her counsel and her witness appeared in person.

[2] Chad originally commenced this motion to change seeking: 1) changes to the parenting schedule to increase his parenting time; 2) child support set off if he was successful in increasing his parenting time to a shared parenting arrangement; and 3) stepping down and terminating of spousal support as of September 1, 2019.

[3] The parenting and child support issues advanced by Chad have been resolved on a final basis pursuant to the consent order of Justice Czutrin dated February 8, 2022. The only issue that remains is Chad’s request to step down and terminate spousal support on the basis that there have been material changes.

[4] Chad has revised his request and in his closing submission asked that spousal support be reduced to a step down amount of $1,893 retroactive to July 1, 2021 and that it terminate on July 1, 2022, with the last payment being made on June 1, 2022.

[5] Angela argues that there have not been any material changes justifying the relief sought. She argues that even if there have, she continues to be entitled to spousal support on both a needs and compensatory basis.

[6] For the reasons that follow I find that there have been material changes in circumstances.

[7] Taking these circumstances into account, in the exercise of my discretion, I am varying the former spousal support order by continuing spousal support at the monthly amount of $3,500[^1] as indexed until the Twins (as defined below) graduate from high school. It shall then be stepped down to the amount of $1,500 per month (also indexed) and continue until D.M. (as defined below) graduates from high school.

Background

[8] Chad is currently 48 years old and Angela is currently 44 years old.

[9] Chad and Angela met in 2002 and began a committed relationship soon thereafter. They began living together in 2004 and were married in August 2005.

[10] Angela moved to the United States with Chad as a result of his career aspirations and a job he obtained in the United States with a large international corporation. Shortly thereafter they began having children as follows: Ha.M. and Hi.M. born XXX, XXX, 2007 (the “Twins”) and D.M. born XXX XXX 2010 (collectively the “Children”).

[11] Angela and Chad returned to Toronto in 2010 and separated in 2012.

[12] At the time of separation the Twins were seven and D.M. was two years old. The Twins are currently 15 and D.M. is 12.

[13] Both Chad and Angela have re-partnered.

[14] Chad’s new partner is Christy Bick (“Christy”). Angela’s new partner is Kevin MacAllister (“Kevin”). Chad and Angela both have children with their new partners, each of whom were born in 2015 and who are currently six years old[^2]. As well, Chad’s partner, Christy, has a child from a previous marriage, H.G. who is also currently 12 years old.

[15] In December 2015, Chad and Angela entered into Minutes of Settlement (the “2015 Minutes of Settlement”) whereby Chad agreed to settle child support and ongoing periodic support for 2014 and 2015. This agreement was made on the basis that Chad would pay Table Child Support in the amount of $3,861 based upon his income of $236,796.92 commencing October 1, 2015, as well as spousal support in the amount of $3,500 retroactive to January 1, 2014. The spousal support would be indexed by analogy to s. 34 of the Family Law Act, R.S.O. 1990, c. F.3.

[16] Chad and Angela’s agreement as to spousal support was formalized by Consent Order dated May 27, 2016 (the “2016 Consent Order”)

Credibility and Reliability Assessment

[17] None of the witnesses lacked credibility. In my view, the parties did their best to tell the truth as they recalled it.

[18] However, in my view, Angela was a superior witness to Chad in terms of reliability. I will explain.

[19] Angela’s recollection of past events was detailed and specific. In comparison, Chad’s overall recollection was vague and unspecific. Angela’s ongoing tracking of the Children’s activities and other occurrences through the maintenance of her own records assisted her in this regard. The events in question also appeared more important to her.

[20] Chad’s evidence suggested that past events were not very significant to him; thus, he did not recall them very well. With respect to multiple relevant issues Chad could not recall the specifics related to either his past income, his support obligations, changes he made to his support obligations, recalculations of his support obligations, the Children’s schedules and other matters. The bulk of the matters that he could not recall were either referenced in Angela’s or his affidavit or the trial documents (all documents which he had in advance).

[21] I have set out examples which illustrate this in Schedule “A” attached.

[22] While individually, these matters might seem insignificant, the volume of things that Chad could not recall was significant and speaks to his reliability with respect to this case, particularly since most of the things he could not remember were put in issue by Angela in her materials.

[23] Accordingly, where Angela’s evidence conflicts with Chad’s, I prefer Angela’s.

[24] I also did not find Christy to be reliable due to inconsistencies in her evidence. For example, in her affidavit she indicated that she had to cash in an RRSP in the amount of $16,000 to help pay for household expenses in 2020. However, under cross examination, when shown her tax return, she admitted that she did not in fact cash in any RRSP and that quite to the contrary, she had in fact received CERB in 2020 in the amount of $16,000.

[25] I also had some concerns about Kevin’s reliability for the reasons set out in a decision in respect of a motion for fresh evidence brought by Chad which I have released at the same time as this decision, for the reasons set out therein.

[26] In any event, I did not find either Kevin or Christy’s evidence helpful. The bulk of their evidence related to the contributions which each make to Angela and Chad’s respective household respectively. While all of this may have been relevant had this been a support motion de novo, it was not very relevant to either the material changes alleged, or the variation which should be made in light of them for the reasons which I have set out below.

Variation of Support Orders

The Legal Test

[27] Section 17 of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) states that a court may make an order varying, rescinding or suspending, retroactively or prospectively a support order. Section 17(4.1) sets out factors which the court must look to:

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.

[28] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, Justices Abella and Rothstein set out the test for variation of a spousal support order. The change of circumstance must be material which means that if it were known at the time, it would have likely resulted in a different support order (at para. 32). At para. 35, the Court notes it must have, “some degree of continuity, and not merely be a temporary set of circumstances”. As well at para. 34, “what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.” Further, at para. 33, “if a change was known at the relevant time it cannot be relied upon as the basis for variation.”

[29] As directed by the Supreme Court in L.M.P., at para. 33, “the focus of the analysis is on the prior order and the circumstances in which it was made.” Therefore, it is important to set out the context in which the support order was made before considering whether Chad has proven a material change in circumstances.

The Circumstances in Which the Consent Order was Made

[30] In my view, the following circumstances, which existed at the time of the May 2016 Consent Order, are the main relevant circumstances, although other relevant circumstances are also set out in the body of these reasons:

Angela’s Compensatory Claim

[31] Chad has acknowledged that at the time of the 2016 Consent Order Angela had a compensatory claim. Nevertheless, it is important to set out the basis for her compensatory claim as at the 2016 Consent Order. The strength of her compensatory claim at that time underlies the agreement the parties made as well as the 2016 Consent Order.

[32] When Chad and Angela met, she was economically independent, she paid all her own bills and was in the paid labour force.

[33] She graduated with an electrical engineering degree from Waterloo in May 2001 and subsequently held the following positions where she earned the following annual income:

Dates	Employer	Position	Salary
May 2001 to May 2003	Sunnybrook Hospital	Research Engineer hired on a contract basis working approximately 40 hours per week.	$45,000
June 2003- Oct 2003	Lake Louise Fairmont	Prep cook working approximately 75 hours per week	$45,000

[34] In 2003 Chad was offered a placement with Thomson Corp (now Thomson Reuters) (hereinafter “TR Co.” in London England for his MBA. Chad and Angela agreed that they would move to England together and that she would apply for a Commonwealth Visa. Accordingly, she gave notice to the Fairmont in October 2003. When Chad’s placement in London, England was delayed from January 2004 until July 2004, Angela worked as a pastry chef.

[35] Chad’s placement in London began in August 2004. Because Chad’s placement was only a six month contract, Angela could not apply for permanent positions but she did work as a kitchen manager at the Flying Chef.

[36] In February 2005, Angela and Chad became engaged to be married.

[37] In March 2005, Angela moved with Chad to Stanford Connecticut, USA for Chad’s continued employment with TR Co. She planned the wedding, travelling back and forth between Kingston and Connecticut.

[38] Chad initially worked under a temporary visa. However, Chad negotiated that TR Co. would sponsor his and Angela’s application for a green card. This would have permitted Angela to work. The agreement with TR Co. provided that if Chad stayed with TR Co. fewer than five years, any costs it had expended in respect of the green card applications would have to be repaid.

[39] Angela wanted to be able to work in Connecticut. However, shortly after they arrived, Chad and Angela discussed and agreed that because of Chad’s extensive work commitments, it would not be possible for Angela to work if they wanted to start a family.

[40] As well, Chad advised Angela that as he did not intend to stay in Connecticut long-term, it made no sense to incur the cost of the green card application for either himself or Angela. Chad then cancelled his green card application. As a result, Angela could not work in Connecticut. She did significant volunteer work, took care of their dog and the home, and planned the wedding.

[41] I pause to note that Chad insisted that it was Angela’s choice to stay home while she testified that it was the parties’ agreement. As discussed above, I found Angela to be a more reliable witness and accordingly, I prefer her evidence where it conflicts with Chad’s. In any event, Angela’s evidence on this issue is more consistent with the timing of the move, the fact that Angela could not work in the United States, the fact that Chad cancelled both his and Angela’s green card applications, and the fact that Chad was working long hours at a new job in the United States.

[42] Angela began fertility treatments and became pregnant in 2006 with their twins being born in 2007 (the “Twins”).

[43] In 2008 after Chad began working in Manhattan. His commute to work was close to 3 hours per day, thus making him unavailable for much of the time when childcare duties were required.

[44] Angela felt isolated. Chad was minimally involved in the Twin’s care. Angela got up with them in the night, took them to doctor appointments and activities. Chad did not feed, bathe, change them or put them to bed. He did not contribute in any way to household chores which he considered Angela’s job.

[45] In 2010 D.M. was born. Chad did not take any parental leave and went back to work the day after he was born. At this point, Chad and Angela were having problems in their relationship. Chad was quick to anger and Angela began having panic attacks. Chad advised her that if she tried to leave him, he would fight her and she would get nothing.

[46] In October 2010 Chad decided that the family would move back to Toronto. He wanted to take advantage of a generous severance package which provided salary continuation until March 2011. I note that although Chad gave evidence that they moved back to Toronto to make Angela happy, he also conceded when cross examined that her request that they move back to Toronto was made in 2007. It makes little sense that the sudden decision to move in 2010 was prompted by her request in 2007 as opposed to the generous severance package.

[47] I note as well that it was almost exactly five years after they moved to Connecticut; this is the time period within which his employer said he would have to repay green card application fees if he decided not to stay in the United Stated. Chad’s evidence that he could have worked indefinitely without a green card is inconsistent with his evidence that he was the one to initially negotiate his employer’s agreement to sponsor his green card application; why would he negotiate this if he did not need a green card?

[48] There is no independent evidence supporting this. Indeed, when cross examined on this issue Chad initially stated that he could not recall how long he could work in the United States with a “TM” visa, then he insisted that it could be rolled over indefinitely, then he qualified this by saying that he was “almost certain of this.”

[49] He also alleges the return to Toronto was a significant sacrifice he made for Angela because his income in the United States was $400,000 in CDN dollars and when he first came back to Canada he was unemployed. However, the fact that he did not pursue his green card application also supports the conclusion that he had not intended to stay in the United States long term. Chad admitted when cross examined that the decision to end his employment with TR Co. was his alone.

[50] By 2010, Angela had made good friendships in the community and was sad to be leaving. Nevertheless, Angela again supported Chad’s decision. This was another sacrifice she made for Chad. Had she not made this sacrifice and had his income continued at the above amount, Angela would have been entitled to greater spousal support when the marriage ended.

[51] Chad admitted when cross examined, that even after they returned to Toronto and when Chad did not work for an entire year, Angela continued to be the primary caregiver. Therefore, he did not assume greater parental responsibilities on an equal basis even when he was available that year.

[52] In 2011 Chad signed an agreement for the purchase of the matrimonial home. Angela believed that this home was being purchased in her name as well although he registered this home in his name alone.

[53] Chad and Angela’s relationship continued to deteriorate and he spent more and more time with friends without her and the Children. Chad began having outbursts at Angela. She felt intimidated and felt she had no way out because Chad was the sole income earner. She tried to avoid conflict and frequently slept with the Children.

[54] In March 2012 Angela began investigating options to go back to school and study interior design because she realized returning to the food industry was not possible given the long hours and the Children’s young age. She contacted the RCC Institute of Technology as they offered a BA in interior design which she wished to pursue. However, Chad was not agreeable to incurring the expense or pay for childcare.

[55] In July 2012 Angela and Chad separated.

[56] After their separation, Chad refused to leave the matrimonial home and at his request, Angela and the Children moved into rental accommodations. Angela’s father had to cosign the lease because of her economic situation. From their separation in July 2012 until September 2012, Chad only paid Angela $3,200 which was for her first month’s rent and which he later applied to his child support obligations.

[57] They agreed that the Children, (who were two and five at the time) would live with Angela. Pursuant to their interim parenting arrangement, Chad would with spend time with the Children on the weekend and on each Wednesday evening until the following morning. Initially, Chad insisted on Angela doing the driving to and from his home because she did not work outside the home.

[58] A significant contentious issue was where Angela could live. Chad insisted that she not be permitted to live more than 13 km from the former matrimonial home where he lived without his consent. This significantly impacted the kind of accommodation which Angela could obtain because of the area where the matrimonial home was located, but she agreed to it.

[59] Although they signed an interim agreement in October 2012 (the “October Interim Agreement”) which stated that child support and spousal support would be $3,200 and $1,900 per annum, he unilaterally reduced his child support from $3,200 per month to $1,500 per month taking the position that the Guidelines did not apply as he earned more than $190,000.

[60] Although the October Interim Agreement directed that child and spousal support would be re-negotiated by February 1, 2013, Chad failed to provide any documentation regarding his income by that date although Angela did. During the summer of 2014 he finally provided his 2011 and 2013 income tax returns. He has never provided his 2012 income tax return. There are other instances of Chad not being forthcoming as to his full income.

[61] In February 2015, Angela commenced this Application. As of that time, Chad had again reduced his spousal support payments such that he had paid a total of $21,500 per year or $1,792 per month for 2013 and 2014.

Angela’s Efforts at Retraining as at the 2016 Consent Order

[62] First, when Chad and Angela separated, Angela had been out of the workforce and had not worked in any field related to her engineering degree since 2003. Her qualifications were out of date for a job in that field in 2012 when they separated.

[63] Upon separation, Angela contacted the Department of Medical Biophysics at Sunnybrook Hospital, where she had previously worked, but was advised there was no job for her. She took online classes towards a certificate in food security at Ryerson University (as it then was) and completed the first course but did not continue working in that field because it required in person experience which she did not have. She also determined that there were insufficient opportunities in that field. She sought employment at Summerhill Market and even at IKEA but they did not have flexible positions which would permit her to be available for the Children.

[64] In September 2014 when D.M. started kindergarten, she began taking courses towards an interior decorating certificate at George Brown College. She took two classes per week, one when Chad had the Children one day during the week. She paid for these courses on her own and did her homework while the Children were at school.

[65] In March 2015, she obtained a part time job with Stacy McLennan Interiors as a junior designer part-time. A friend had referred her to Stacy McLennan. She earned $17 an hour and worked up to 20 hours per week if work was available. She also continued to upgrade her skills. She took a course in software used in interior design which resulted in an increase in her salary to $20 per hour.

Angela’s Need as at the 2016 Support Order

[66] Based upon the financial statement which Angela provided prior to the 2015 Minutes of Settlement and the 2016 Consent Order, Angela also had a needs based claim. In that regard, her financial statement dated September 11, 2015 showed that even taking into account the interim spousal support agreement of $3,200 as well as the contribution from Kevin to Angela’s household which was $1,500 at that time, she had a shortfall in her expenses of approximately $1,700. This is not to say that there is any evidence or reason to believe that the $3,500 spousal support was based upon $1,700 for need and $1,800 for compensatory support. There is no reason or evidence in the record which suggests there couldn’t be overlap in these amounts.

Duration of Spousal Support

[67] The spousal support was unlimited in duration and their agreement and the 2016 Consent Order did not provide for any automatic review.

Angela’s Physical ability to Work

[68] Angela was healthy, physically able to work and had already begun working with Stacy McLennan Interiors.

[69] The Children were already in school full-time which would permit Angela to work greater hours, taking into account her parenting responsibilities.

[70] Therefore, the parties must have known that she would be able to work greater and greater hours. Despite this, as noted above, there was no provision for an automatic review or a termination date. In my view, this speaks to the strength of her compensatory claim at that time.

Chad and Angela’s Income

[71] Chad’s income was approximately $237,000 and Angela’s actual income was $6,827.

[72] When the support obligations were calculated, an income of $15,000 was attributed to Angela, also demonstrating the expectation that she would be or should be working greater hours imminently. But again, despite this, there was no review period or termination date which speaks to the strength of her compensatory claim at that time.

Means of Chad to Pay

[73] Chad’s finances showed that he had the means to pay spousal support in the amount of $3,500. The corollary is that it is implicit that this level of spousal support was sufficient to satisfy Angela’s needs based entitlement.

Re-partnering

[74] Both parties had already re-partnered and had a child with that partner. Both Chad and Angela knew that the other had a spouse who could contribute to household expenses.

Chad’s Parenting time

[75] Chad’s parenting time pursuant to Justice Diamond’s September 27, 2016 Order resulted in Chad having 5/14 nights with the Children.

The Above Circumstances Were Baked into the 2015 Minutes of Settlement and 2016 Consent Order

[76] In my view, all of the above circumstances were “baked into” the 2015 Minutes of Settlement and the 2016 Consent Agreement.

Material Changes Asserted

[77] Chad claims that a number of material changes have occurred. They are set out in Chad’s closing submission on page 3 as follows:

a) There has been a change to the parenting schedule. Under the consent order dated May 27, 2016, the Children were only residing with Chad 5 out of 14 nights However, Ha.M. and Hi.M. have now been residing with Chad for approximately 50% of the time since April 11, 2021. D.M. has been residing with Chad approximately 45% of the time since January, 2022;

b) Chad obtained new employment in 2018. His income increased significantly at that time; and

c) Angela has been working fulltime, or has had the ability to work fulltime, since September 2016.

[78] I note that a great part of Chad’s case centered on Angela’s re-partnering with Kevin and his position that she no longer had any need for support because over time, her needs based claim would shift to Kevin. Chad made this argument while acknowledging that this could not be a material change because Angela’s re-partnering was known at the time of the 2015 Minutes of Settlement and the 2016 Consent Order. He argues that it should still be taken into account in any event. I will address this more fully below.

Do the increased overnights with Chad pursuant to the February 8, 2022 Order Constitute a Material Change?

[79] In my view, the evidence did not establish that any changes to Chad’s parenting time as of April 2021 were material changes. Although there were some changes to Chad’s parenting time, there was no degree of permanence to such changes.[^3]

[80] However, pursuant to the Final Order of Justice Czutrin dated February 8, 2022, parenting time and child support issues have been resolved on a final basis (the “February 2022 Order”). There has been a modification to the parenting time schedule whereby an additional overnight has been added for the Twins in each week and an additional overnight is now in place for D.M. in alternate weeks. As well, the Twins have an option of staying at Angela’s on a Wednesday if they wish.

[81] In terms of overnights, these changes result in Chad now having 7/14 overnights with the Twins and 6/14 overnight with D.M whereas previously Chad had 5/14 nights with D.M. and 6/14 nights with the Twins.

[82] Angela argues that this change is not material because she continues to perform almost all parenting responsibilities and essentially all that has happened is that the Children sleep at Chad’s house and have dinner with Chad more often.

[83] In my view, Angela’s argument is to conflate the existence of a material change with the variation that may be necessary because of that change. Angela’s argument and evidence on this point will, however, be relevant to the consideration of the variation required by the material change.

[84] Therefore, I accept that the changes in the parenting schedule constitute a material change. These changes were not known or foreseeable at the time of the 2015 Minutes of Settlement or the 2016 Consent Order, and they are permanent.

Does Angela’s full time employment with Stacy McLennan constitute a Material Change?

[85] In September 2016 Angela obtained full time employment with Stacy McLennan.

[86] The evidence established that her job was flexible and that she did not actually work full time hours because of her parenting responsibilities.

[87] Nevertheless, I agree that this constituted a material change in circumstances. At the time of the 2015 Consent Order, there was only $15,000 imputed to her and by 2017 she was earning approximately $30,000 and was therefore working considerably more hours. In my view, this is a doubling of her salary and therefore material.

Does The Increase in Chad’s Income Constitute a Material Change?

[88] Chad’s income increased significantly from $237,000 in 2015 to $440,672 in 2018.

[89] Chad argues that this increase resulted in significant increases to the Table Child support. In 2016 Table support was $3,861. As of 2022, Table support is now $7,380. He argues that because the child support has increased so significantly, Angela no longer needs any spousal support. In effect he argues that the increased child support will offset the elimination of the spousal support. In my view, this is to conflate the purposes of child and spousal support.

[90] Angela argues that child support is for benefit of the Children only. It is to be used for the Children’s housing, their cell phones, their computers and other material items. It permits the Children to live in a house parallel to Chad’s. It has been settled on a final basis with the recognition that there was no basis for child support set-off since Angela has and will continue to pay for the bulk of the Children’s expenses.

[91] When dealing with payor parents enjoying a high income and thus paying higher Guideline Child Support, the Court must not readily conclude that those higher Guideline child support payments have become a type of “spousal support”. The Court in A.J.B. v. J.M., 2020 BCSC 242, [2020] B.C.J. No. 294, stated the following at para. 83:

As a result, "when considering the question whether, and if so when, the high income of a payor should justify departure from the set-off under s. 9", the Court of Appeal, at para. 70 of B.P.E., adopted the following statement of principles summarized in Archibald v. Archibald, 2007 ABQB 486 at para. 27 (from Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250):

High income earners are in a unique economic situation in that expenses which may in other situations be considered unreasonable, may, in a high income situation be reasonable. Therefore, in order to challenge budgets, payors in high income situations must demonstrate that budgeted expenses are so high as to exceed the generous ambit within which reasonable disagreement is possible.

In situations where the table amount is so excessive in comparison to the reasonable needs of the children that support under the table is no longer just child support but a de facto wealth transfer or spousal support, the table amount should be reduced. This is in keeping with s. 26.1(2) of the Divorce Act which dictates that maintenance of children, rather than household equalization or spousal support, is the object of support payments.

Child support payments will often produce an indirect benefit to the custodial parent and the court should not be too quick to find that Guideline figures enter the realm of wealth transfer or spousal support.

An award of discretionary expenses is not unreasonable and may be high in high income situations.

[92] I take Angela’s point that the decisions upon which Chad relies are decisions where a high income earner has challenged the reasonableness of Table Child Support.

[93] Chad did not lead evidence to challenge the reasonableness of the Table Child Support based upon his current income, (indeed, he consented to a court order requiring him to pay Table Child Support without any set-off based upon his current income).

[94] Nevertheless, in Gray v. Gray, 2014 ONCA 659, 122 O.R.(3d) 337, at para. 30, Justice Lauwers accepted the proposition that there are financial synergies that benefit the spouse who has custody of the children and who receives support. Since Angela’s entitlement in 2015 and 2016 was also needs based, this kind of synergy could have implications for any ongoing entitlement to needs based support.

[95] Therefore, in all the circumstances, I find that Chad’s increase in income constitutes a material change in circumstances.

Variation Order if A Change in Circumstances Have Been Found

[96] Section 17 of the Divorce Act directs that the court must consider what variation is necessary, having regard to the change in circumstances. As directed by the Supreme Court in L.M.P.at paras. 47, 50.:

If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change. As Justice L'Heureux-Dubé, concurring in Willick, observed: "A variation under the Act is neither an appeal of the original order nor a de novo hearing" (p. 739). As earlier stated, as Bastarache and Arbour JJ. said in Miglin, "judges making variation orders under s. 17 limit [page797] themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order" (para. 62)

In short, once a material change in circumstances has been established, the variation order [page798] should "properly reflec[t] the objectives set out in s. 17(7), ... [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor" (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.

[97] The four objectives of the Divorce Act which must be taken into account are set out in section 17(7) as follows:

A variation order varying a spousal support order should:

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

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

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

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

[98] To summarize, the variation that this court should make is one which takes into account the increase in Chad’s income, the increased parenting time, as well as Angela’s full-time position considering the above objectives. It is not an opportunity to appeal the 2016 Consent Order which was based upon the circumstances which existed at that time.

17(7)(a) & (b) Economic advantages and disadvantages arising from the marriage or its breakdown and apportionment of financial consequences arising from the care of the children

Angela’s Compensatory Claim Since the 2016 Consent Order

[99] Notwithstanding paragraph 98 above, it is important to consider whether Angela’s compensatory claim, which existed in 2015 and 2016, has been satisfied as yet.

[100] Chad claims that he has been paying spousal support for ten years, this is the mid-range and that is enough time.

[101] In Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84 at paras. 54-55, the Court of Appeal indicated that a strong compensatory claim may favour a spousal support award at the higher end of the ranges in terms of both quantity and duration.

[102] In terms of duration, the SSAG range for spousal support with child support formula provides a range for an indefinite (unspecified duration) subject to variation and possibly a review to a 16 year maximum.

[103] In the SSAGs, authors Professors Rogerson and Thompson also stress that when dealing with a shorter marriage which ends when the children of the marriage are young, it will often be more appropriate to fix the range of duration of spousal support based on “age of the child(ren)” test. This range is based, not on the length of the cohabitation/marriage, but when the last child of the marriage will complete his/her secondary education. Use of this formula is most appropriate when the basis of spousal support has a significant compensatory element. The learned authors recognized that the compensatory elements of entitlement arise in the post-separation roles of the spouses.

[104] In my view, Angela’s compensatory claim was strong. This is evident from: a) the description of all the sacrifices she made for Chad’s career which I set out above; b) the fact that their agreement for support was not time limited and had no automatic review period, even though the Children were in full time school and Angela had already begun working; and c) the fact that it would be indexed, suggesting the expectation that it would go on for some time.

[105] In my view, Angela’s strong compensatory claim as at 2015 and 2016 has not yet been satisfied and the duration falls at the higher end given the above considerations.

Does Angela have any Ongoing Compensatory Claim Because of Ongoing Sacrifices She has Made and Ongoing Benefits Chad has Received Since the 2015 Minutes of Settlement and 2016 Consent Order

[106] Since the 2016 Consent Order, Angela has continued to perform the bulk of the parenting responsibilities.

[107] She has had the primary responsibility for purchasing the Children’s clothing. While this may not seem like a large task, there are three children. It is not merely the fact of going to the shopping mall to buy clothes that is cumbersome. Maintaining a growing child’s clothes involves knowing the clothes they have, knowing when they outgrow something, knowing what they need, organizing times to shop, then finding them things they like at an affordable price and then dealing with the outgrown clothing.

[108] The Children have not kept a separate set of clothes at Chad’s. In the past the Children have brought a suitcase to Chad’s when they attend his house for overnights. When the Children have returned to Angela’s from their time at Chad’s, their suitcases have been filled with their dirty clothes for her to wash.

[109] Chad admitted that he would tell the Children to bring specific items to his house and ask Angela to pack them. Although the February 2022 Order provides that both parties will be responsible for adequate clothing at their residences, (this clause was inserted at Angela’s request) when cross-examined, Chad could not recall a single item of clothing that he has purchased for the Children or that he is intending to purchase for them. The most he could say is that he will be attempting to build on their current clothing.

[110] On occasions when something has been damaged in the past during Chad’s parenting time, (for example D.M.’s soccer shoes, or Hi.M.’s ski jacket,) it has been Angela who has had to step in to purchase a replacement to deliver to Chad’s house.

[111] Angela has arranged all of the Children’s extra-curricular activities and sports including: soccer, skills development for soccer, workshops, arts programs, and music. Again, this does not merely involve signing and submitting forms. It involves knowing what the Children are good at, skills they need, and/or what they are interested in, evaluating options which exist for such activities, completing the paperwork, and then ensuring that they have the necessary clothes or other items necessary for the activity.

[112] Chad did not want the Children in any activities that crossed over into his parenting time. As such, he has rarely attended any extra-curricular activities. There have only been a handful of times when he has taken the Twins to soccer if it fell during his parenting time.

[113] Chad takes the position that his taking the Children skiing on weekends and holidays constitutes an extra-curricular activity. While it is no doubt beneficial, family activities are not the same thing as extra-curricular activities. I note that the case law establishes that extra-curricular activities are an important part of a child’s development.

[114] Angela has been the one available when the Children need something or to address their emotional needs. Chad’s demanding work schedule is such that he has not been available to care for the Children on an equal basis. Chad did not discuss the Children’s emotional needs in any of his evidence apart from his evidence regarding one particular important activity he is involved with on a weekly basis with one of the Children, for which I do commend him—but it is only one activity.

[115] Angela has arranged the Children’s childcare, March break activities and summer camps outside of the weeks when they were scheduled to be with each parent. The only summer camp which Chad has ever arranged was for D.M. in August 2020. Chad had asked for an additional week with D.M. that summer and Angela agreed. Afterwards, she found out that Chad had signed him up for camp instead of doing something with him.

[116] Angela has completed all school registrations required for the Children including lunch programs, activity fees, other school related fees, yearbooks, gym uniforms and musical instruments etc. She has purchased all items which the Children need for school including backpacks, pens, binders, thermoses, calculators etc.

[117] As well, the Children generally have completed their schoolwork and projects at Angela’s home, and she is the one who has assisted them with their homework and projects. At times when they were staying at Chad’s home, they would ask to come to Angela’s the night before a test so she could help them study. I note that these Children are very successful scholastically and so her work in this regard has been very valuable.

[118] Chad has never taken off time to look after the Children if there was no school or if they were sick. He has never picked the Children up from school if they were sick and the school called. When there is no school, such as a PA day, outside of the holiday schedule, the Children stay at Angela’s.

[119] Angela has taken care of the Children’s medical and dental needs including arranging and attending all appointments. She is the one the school has phoned to pick up the Children when they are ill and when the school calls, she has been the caregiver. Chad admitted that in the past, he would drop the Children at Angela’s house when they were sick and she would look after them.

[120] It is very telling that during the pandemic when school was online, the Children would generally go to Angela’s to do their online school-work during their parenting days with Chad. The responsibility to supervise on-line school during the pandemic was not insignificant.

[121] Angela even supported Chad’s career by allowing Ha.M. and Hi.M. to attend at his home during Angela’s parenting time to assist with babysitting Chad and Christy’s child during the period when schools were closed as a result of COVID.

[122] As well, even on Chad’s parenting days, D.M. returns to Angela’s after school and was picked up by Chad at 5:00 pm. Ha.M. was also generally picked up from Angela’s on Tuesdays and Friday’s with D.M. and she often would go to Angela’s for lunch even during Chad’s parenting days. Even when the parties agreed that Chad would pick the Children up from school, he admitted under cross-examination that he continued to pick them up from Angela’s house.

[123] I note that Angela has kept detailed records and receipts for money she has spent on the Children as well as their activities. She has produced 301 pages of various receipts for the years 2016 to 2021 which include the purchase of Chromebooks, Macbooks, power adapters, a wired gaming mouse, a laptop sleeve, phones, phone cases, airpods, wireless phone plans, an iPad stand, an iPad case, and wireless phone plans. Again, purchasing items for the Children involves knowing what they need, evaluating the options in consultation with the Children and then finding and purchasing these items at affordable prices.

What Changes to Angela’s Parenting Responsibilities will occur as a result of Chad’s additional parenting days?

[124] Chad gave no evidence that he would now be contributing to any of the parenting responsibilities assumed by Angela, as a result of the changes to the parenting plan. He only stated that he will begin buying the Children clothing as required by the February 2022 Order, although as noted, he could not recall a single item he had purchased.

[125] Angela’s parenting work is necessary to meet the Children’s needs. This work has continued to cause Angela an ongoing economic disadvantage. It also assists Chad with the pursuit of his career aspirations and his ability to continue to climb the corporate ladder with the knowledge that his Children’s needs are taken care of. I add that there is a significant mental component to the work done by Angela. She completes tasks that Chad need never worry about or even consider.

[126] This is not to say that Angela is the better parent. Chad has a wonderful relationship with the Children and because of his career pursuits, these Children enjoy a very high standard of living. Because of Angela, all of these Children’s other needs are taken care of. These Children are very fortunate to have both of these extremely devoted parents.

[127] It is simply that Chad and Angela have continued to have different roles to a large extent post separation and right up until the date of trial and there is no reason to conclude that this will not continue, subject to the Children’s increasing independence as they age. It is unfair for Chad to receive the continued benefits conferred by Angela’s work, without compensating her. It is unfair for her to have to do this ongoing work without being compensated.

[128] As accepted by Justice McLachlin in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, where one parent continues to provide the majority of the parenting duties following a separation, that parent continues to suffer economic hardship arising from the marriage or its breakdown. At para. 81 the Court states:

If childcare responsibilities continue past the dissolution of the marriage, the existing disadvantages continue, only to be exacerbated by the need to accommodate and integrate those demands with the requirements of paid employment.

[129] In my view, Angela suffered significant economic impairment for which she has not yet been compensated. As a result of Angela’s sacrifices during the marriage and at least, in part, because of her continued disproportionate share of parenting responsibilities, Chad has been able to focus on his career so as to steadily increase his income from approximately $220,000 at the time of separation to approximately $470,000 in 2021. It is impossible to know where Angela would be financially had she not made her sacrifices. What is known is that Chad is currently 48 years old and, absent unexpected circumstances, he will be able to keep this considerable income and any ongoing increases long after his financial responsibility for his Children is concluded. Angela has not even reached the income of $45,000 which she was earning in 2003. Had she been able to continue working, it is more than likely that her income would have steadily increased, just as Chad’s has.

17(7)(d) Promote Economic Sufficiency Within a Reasonable Amount of Time

[130] I agree with Chad’s submission that the objective of self-sufficiency does not mean parity of income: Lazare v. Heinter, 2018 ONSC 3604, 17 R.F.L. (8th) 211 at para. 10.

[131] Nevertheless, in my view, Angela has made diligent efforts to become economically sufficient. Unfortunately, this has been impeded by the ongoing and disproportionate parenting responsibilities she has undertaken described above.

[132] In Chad’s motion to change, he stated his belief that Angela had failed to work full time hours because of “her own decision to have another child after separation” which was a “lifestyle choice of her own doing”. Despite his belief in this regard, Angela and Kevin had their Child in the summer of 2015 and Angela returned to work shortly thereafter.

[133] Angela testified that because Kevin is a hands on father who shares parenting responsibilities, her parenting of their child, L., does not detract from her ability to work. Indeed, they have a nanny for him. It is the parenting responsibilities she has had for the Children, which she says Chad does not share, that are impairing her ability to work more hours.

[134] Chad also complains that Angela has not made sufficient efforts at re-training. However, Angela provided significant evidence of ongoing attempts which she has made to obtain work and become self-sufficient.

Efforts at Re-training as at the September 2016 Order

[135] In my view, Chad cannot complain about Angela’s attempts at re-training prior to the 2016 Consent Order as some basis for a variation, as that Order should have taken into account all relevant circumstances of which the parties were aware at that time.

Efforts at Re-training Since the 2016 Order

[136] Angela’s efforts at retraining after the 2016 Consent Order are relevant to the issue of any variation required as a result of the material changes.

[137] As set out above, in September 2016, Angela began working greater hours at Stacy McLennan Interiors. However, it must be noted that Angela was only paid when she worked even though it was called full time hours. During the time she worked with Stacy McLennan Interiors, she had flexibility and she had to take off time because of the Children’s needs and her parental responsibilities, appointments etc. The evidence established that she has never actually been able to work full time hours and has been able to work approximately 28 hours per week.

[138] In September 2018, she was promoted to associate designer and her pay increased to $24 an hour.

[139] The following is a summary of the income which Angela earned from Stacy McLennan Interiors:

2016: $6,827 2017: $28,942 2018: $32,392 2019: $33,400

[140] In 2020 Angela was laid off due to a shortage of work. She tried to start her own business but the world had shut down because of COVID. In the early days of COVID, she had to stay home because she had to supervise on-line learning. The Children returned to school in September 2020 and she picked up some design projects from friends. As well Stacy McLennan sent her referrals but the income she earned from this was not significant.

[141] Between March 2020 and November 2020, Angela was looking after the Children fulltime. Even during this period she sent out job applications and applied for 5 to 10 jobs but did not receive any response.

[142] Her partner Kevin owns a bakery called Bunners. In November 2020, he advised her that he was looking to expand the Savory Department at his bakery and hired her part time for $20 per hour. In 2020 she earned $3,179 from Bunners, $6,012.90 from Stacy McLennan and $848 from her own design business. In 2021 she earned $20,426 from Bunners and had some other income from her design business.

[143] In 2021 her total income was approximately $32,000.

[144] The picture that emerges of Angela is of an industrious and motivated woman who has always sought to support herself and be financially independent. She has worked as many hours as she can when she has not been attending to the Children’s needs.

[145] In my view, she has not been able to work fulltime hours. It would be unfair to require her to work fulltime and then return home to a second part time job where she performs parenting responsibilities to which that Chad does not contribute.

[146] I reject the submission that Angela has been intentionally under-employed in the past, although I do accept that she has been able to and should be expected to work greater and greater hours as the Children age and they become increasingly more independent. This is essentially what she has been doing with a stop-gap when COVID hit.

[147] I add that some of Chad’s conduct post separation has made Angela’s life more difficult and stressful. In my view, this has also constituted, at a minimum, a distraction which has further impeded her ability to become self-sufficient to the degree she was previously. The following are some examples.

Chad’s Conduct Since the 2016 Order

[148] Chad has only provided his support cheques a few at a time by dropping them in her mailbox, creating stress and anxiety for her. Angela has continually had to ask through her lawyer for his income tax returns as per the final order so that support could be adjusted. Each year she has had to provide the necessary calculations even though child support is Chad’s obligation.

[149] As well, he did not provide any indexation of his spousal support obligation as per the agreement until Angela raised it.

[150] Chad is responsible for extraordinary expenses which include childcare. In 2019, Chad started arbitrarily deducting amounts from his childcare that he thought he had overpaid and was owed. What is surprising about this is that up until 2016, Angela had a nanny for L. (her child with Kevin) who also watched the Children after school at no cost to Chad. This attributed great savings to Chad. However, from 2016 to 2017 Angela hired a babysitter for childcare afterschool on the days she worked because L.’s nanny had committed to another family for after school. Angela hired someone at a cost of $37.50 per day. Angela paid her in cash. Then from 2017 to 2018, the nanny that Kevin and Angela hired became available for afterschool at a cost of $15 per hour. Because the babysitter was also watching Kevin and Angela’s child L., Angela agreed that Chad would only pay $11.25 an hour towards these babysitting costs and she did not attribute any WSIB or other costs to Chad. Each year, Angela provided the back up for these costs and also paid additional costs to her accountant to prepare a breakdown when Chad took the position that he had been overpaying her. Angela’s accountant concluded that after all source deductions and WSIB were factored in, Chad would owe her money.

[151] Then in September 2019, D.M. was registered at a childcare centre through the Toronto District School Board where the cost of the after-school program was $280 per month. Chad would only agree to pay $165 per month instead of his $235 share which was required pursuant to their agreement to pay 88% of extraordinary expenses. Angela gave up arguing about this issue as it would cost her more in legal fees than it was worth. Notably, based upon Chad’s spreadsheet (Exhibit 19) the total childcare costs which Chad paid from 2015 to 2020 inclusive was only a little over $14,000 or approximately $2,400 per year.

[152] Chad frequently makes changes to the parenting schedule to suit his needs. He often makes these requests through the Children without communicating with Angela directly.

Conclusion re Promotion of Self-Sufficiency

[153] Even if I accepted that Angela could be self-sufficient, or that her current income does make her self-sufficient at this time, in Thomson v. Thomson, 2013 ONSC 5500, Justice Chappel confirmed that even where a spouse could be self-supporting, they may be entitled to ongoing compensatory support where their financial advancement has been impaired. At para. 58:

A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties' separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family

[154] In compensatory cases, the goal in establishing quantum and duration should be to formulate an award that reflects the economic disadvantages and advantages flowing from the marriage, and that continues until those consequences are redressed, even if the recipient has reached a reasonable degree of self-sufficiency (Morigeau v. Moorey, 2015 BCCA 160, 67 R.F.L. (7th) 19, at para. 243; Tedham v. Tedham, 2005 BCCA 502, 20 R.F.L. (6th) 217, at paras. 58-60; Allaire; Dancy v. Mason, 2019 ONCA 410, 25 R.F.L. (8th) 93).

[155] Although I will take into account the overall objective of self-sufficiency in the final award as directed by s. 17(7)(d), it is not a basis to terminate spousal support because the economic consequences and disadvantages flowing from the marriage, as well as the ongoing roles which Chad and Angela have continued to assume, have not yet been redressed and her financial advancement continues to be impaired.

17(7)(c) Relieve Economic Hardship of the Spouses Arising From the Marriage breakdown

[156] Chad argued he could not afford to pay spousal support at the current rate. Angela argued that she could not afford her expenses without the spousal support. I reject both of their positions making the overall point that if they are in this position, it is not because of anything that arose out of the marriage breakdown or anything new that has happened since the 2016 Consent Order.

Chad’s Current Financial Circumstances

[157] First, Chad’s argument that he can no longer afford spousal support payments in the amount of $3,500 (and indexed) negotiated at a time when his income was approximately one half of what it is now is illogical.

[158] What has happened is that Chad has chosen to considerably increase his budgeted expenses because of his choices. These choices were not forced upon him or driven by circumstances beyond his control.

[159] Chad’s May 14, 2015 financial statement showed total income from all sources of $19,028 and total expenses of $16,408 with no contribution from Christy to his expenses. His December 17, 2021 financial statement shows monthly income of $33,831 and expenses of $43,744.

[160] Chad gave evidence that his expenses have increased in part to provide support for Christy’s daughter from her previous marriage, H.G. Christy’s former husband was paying monthly child support in the amount of $719 but passed away in or around 2018 leaving a $250,000 life insurance policy specifically put in place for the support of H.G. Chad and Christy only set aside approximately $60,000 of this money for H.G.’s support and testified that they used the balance to pay of their own personal debts, although they could not recall any details as to what debt was paid off, what debts were joint debts or how the joint debt was incurred.

[161] Therefore, any increases in his expenses as a result of H.G. have been caused by Chad and Christy’s decisions with regard to the life insurance policy proceeds.

[162] His mortgage payments have increased from $3,258 to $4,330. The home was transferred to Christy jointly with Chad for $2 and then remortgaged on October 27, 2015, all of which occurred prior to the 2015 Minutes of Settlement. Therefore, Chad was aware of his increased mortgage payments prior to the May 2016 Support Order.

[163] Other significant changes are as follows:

Item	2015 Financial Statement	2021 Financial Statement
Repairs and Maintenance of Home	$200	$1,000
Groceries	$500	$1,800
Household supplies	$200	$500
Daycare	0	$500
Clothing	$200	$500
Hair and Beauty	$50	$400
Alcohol and Tobacco	$30	$300
Gifts	$125	$500
Vacations	$500	$1,000
Legal Fees	0	$1,500

[164] While some of these increases may be reasonable as the Children age, and taking into account the increased overnights which Chad will have with the Children (e.g. things like cost of food and vacation costs), many of these increases are unsupported. For example, Chad has increased his cost of monthly repairs and maintenance from $200 to $1,000 for a home that he and Christy renovated in 2015 using sale proceeds from Christy’s home in the approximate amount of $250,000. I question why a newly renovated home would require so much maintenance.

[165] Chad’s personal monthly hair and beauty expenses have gone up from $50 per month to $400 per month without any explanation ($4,800 annually). I make the similar comment for gifts, alcohol and clothing.

[166] At the time of the 2015 Minutes of Settlement and the 2016 Consent Order, Chad had re-partnered, already had a new child, and lived in the exact same house in which he currently lives. He could afford his own expenses as well as the spousal support agreed upon.

[167] To look at this in a different way, despite his assertion that he cannot afford to pay spousal support any longer, Chad has been able to pay off approximately $125,000 in personal debt during the period between October 23, 2018 and December 17, 2021 even though he continued to pay spousal support at the $3,500 rate (as indexed) as well as increased child support based upon his increased income.

[168] Chad admits that his net worth has increased from $255,040 in 2018 to $305,778 in 2021 based upon his estimated net worth in his financial statements. Angela contends that the increase from was from 2018 was $449,308 in 2021 based upon admissions made when cross examined. Regardless, he admits his net worth has increased.

[169] Chad has argued strenuously that maintaining the current level of spousal support would be unfair and inappropriate because it would result in Angela having more of the Net Disposable Income. However, in Fielding v. Fielding, 2015 ONCA 902, at para. 50, the Court emphasized that “the equalization of income (“NDI”) has never been the basis upon which spousal support has been determined in Canada.”

[170] Cases referred to by Chad where courts have focused on equalizing NDI were cases where there was a true shared parenting arrangement where both parents contribute and share in the children’s expenses. This is not the case here as Angela is responsible for the bulk of the Children’s expenses. In my view, this is why Chad has agreed that there will be no child support set-off.

[171] I note as well that the cases which Chad relies upon in his closing submissions with respect to NDI are not motions to change but applications for support de novo or situations where there was a prescribed review date in the original spousal support agreement or order.[^4] This is not the case here and, in my view, such arguments are not as applicable in this case where the only variation is to be based upon the material changes proven.

[172] I note that Chad’s own calculations as to the NDI (which the parties must have been able to compute over the years) show that Angela has always had greater NDI, and certainly did before 2015 and 2016 and as a result of the 2015 Minutes of Settlement and 2016 Consent Order.

[173] Chad’s own calculations show that even on his best day with this court accepting his calculations, Angela’s NDI has steadily decreased even taking to account indexation and child support. In 2015 and 2016, Chad’s calculations show Angela’s share of the NDI to be 58.9 % and 60 % respectively. This is a circumstance that existed at the time of the 2015 Minutes of Settlement and the 2016 Consent Order. Therefore, this was something he knew and agreed to at that time. In my view, this must have been his implicit acknowledgement that Angela has always been incurring more of the childcare costs, and as such, this was appropriate. I have found that she continues to incur more of the childcare costs; therefore a disproportionate share of NDI to her is appropriate.

[174] In any event, Chad is actually better off now in terms of NDI. In 2020 and 2021, his calculations show that Angela’s share of NDI decreased to 51.8 % and 50.9 % respectively. This makes sense because as Chad’s income has gone up, spousal support has been a fixed amount subject only to indexation.

[175] While Chad also argues that this will somehow affect the standard of living that the Children have in each home, there is no evidence that the way in which they structured his support obligations has ever resulted in a different standard of living for these Children in each household.

[176] While Chad argues that he will have to pay a disproportionate share of university costs, he knew that as well at the time of the 2015 Minutes of Settlement and the 2016 Consent Order. If Chad can no longer afford to pay spousal support that he agreed to in 2015 after having doubled his salary, then he must adjust his spending. The annual spousal support payable pursuant to the May 2016 Support Order is $42,000 and it is tax deductible. Therefore, the after tax cost to Chad, given his current tax bracket is approximately $21,000. It is difficult to accept that he cannot afford to pay this when he is earning almost $500,000 per year.

Angela’s Current Financial Circumstances

[177] Although there was also a great deal of evidence about Angela’s current need, in my view she has done the same thing as Chad. She has increased her expenses over time because of choices she has made since separation. Her September 11, 2015 financial statement shows total income from all sources (including the contribution from Kevin) in the amount of $6,778 per month and expenses in the amount of $8,461. Her December 17, 2021 financial statement (together with the contribution made by Kevin to the Angela’s household) is $10,740 per month and her expenses are now $17,009. I note that she did not include the child support payment in her financial statement. If she had, then her expenses are almost exactly her stated total household income.

[178] She argues that without the spousal support, she cannot afford her expenses. I make the same point. She lives in the exact same home and has the exact same family as in 2015 and 2016. Furthermore, she has more income (both on her own and taking into account Kevin’s contribution). In my view, any ongoing need she may have does not arise from the marriage breakdown.

[179] I also agree that some of the expenses on her December 17, 2021 financial statement cannot be justified: yoga training at $275 per month, and gifts at $450 per month.

[180] Angela has been able to pay off $26,000 in debt since this action was commenced in 2018. Chad points out that her net worth has increased from $167,312 in 2018 to $323,715 in 2021.

[181] I do take the point that it is appropriate to take into account the fact that over time Angela’s need as at the time of 2015 Minutes of Settlement and the 2016 Consent Order has shifted to Kevin. Even though this is arguably something that the parties could have predicted, s.17(7)(c) specifically directs the Court to examine hardship arising from the marriage. If there is none left, then it should be considered as part of the variation required.

[182] In my view, Angela no longer has any need that arises out of the marriage or its breakdown, and there is no basis for any ongoing spousal support on that basis. To appreciate this in a different way, at the time of the 2016 Consent Order, Angela’s need, which was based upon the marriage breakdown was $1,700 taking into account Kevin’s then contribution to her household of $1,500. Kevin now contributes $3,000 to Angela’s household. Therefore, the need she set out in her September 2015 financial statement is almost completely eliminated by Kevin’s additional contributions to her household. It must be remembered that all of these financial statements are estimates and the $200 discrepancy is non-material in that context.

[183] However, the fact that she no longer has any needs based entitlement does not have a significant impact on any compensatory claim which has not been satisfied and which is ongoing. As set out in Politis v. Politis, 2020 ONSC 1306, 40 R.F.L. (8th) 174, at para. 112:

Re-partnering has a greater impact on need based support than compensatory support. Re-partnering does not compensate for financial hardship experienced by a spouse as a result of the former marriage and its breakdown.

The Range of Spousal Support Orders Pursuant to the SSAG taking into account Chad and Angela’s current income

[184] As directed by Justice Lauwers in Gray v. Gray, 2014 ONCA 659 at para 42, it is appropriate to consider the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, April 2016) (“SSAG”) guidelines when determining spousal support on a motion to change.

[185] Chad has based his motion to change, at least in part on his significant increase in income. This is usually the basis for a payee’s request for increased spousal support.

[186] While there is some debate in the case law as to whether or not post separation increases in income should be taken into account in determining spousal support, this case would be an appropriate case to do so. Building on the cases of Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), [2003] 66 O.R. (3d) 40 (Ont. C.A.) and Fisher v. Fisher, 2014 ONSC 4941, the Court in Thompson v. Thompson, 2013 ONSC 5500 at para. 103 outlined general principles which should guide the Court’s exercise of its discretion where there are increases in the payor’s post-separation income. The right to share in such increases generally arises in cases where there is a compensatory claim, where the recipient spouse can demonstrate that they made contributions directly linked to the payor’s post separation success, where the relationship was long term and the parties personal finances were integrated, where the skills and credentials which led to the increased income were obtained and developed during the relationship while the recipient was subordinating their career for the sake of the family. Also see Kinsella v. Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, at paras. 428-432 and Nault v. Nault, 2022 ONSC 904 at para. 38.

[187] As noted above, Angela moved with Chad to England and then Connecticut to support his job in the with TR Co. He was then employed in the Treasury Department with TR Co. between 2005 and 2008. He was then promoted to Global Head of Finance between 2009 and 2010. He left TR Co on very good terms. He used the skills and experience he gained at TR Co to obtain a position with a Toronto corporation as Treasurer. He returned to TR Co. in Toronto in 2018 where he is again employed in the Treasury Department as Assistant Treasurer.

[188] In my view, the knowledge, skills, experience and credentials which Chad obtained while working at TR Co. in the Treasury Department, as well as his ability to form a relationship with TR Co., where he returned in 2018, were contributed to by Angela’s sacrifices during the relationship. As well, the fact that she continued to be the primary caregiver post-separation allowed Chad to continue to focus on his career. These facts favour the sharing of his post-separation increases. However, in my view the temporal distance between his old position and new one support only a partial sharing of Chad’s increase in income.

[189] Angela has provided a spreadsheet and Divorcemate calculations based on a variety of different incomes earned by her and Chad over the past years which I have attached as Schedule “B”.

[190] The SSAG range for 2021, taking the full amount of the increase into account, would be between a low of $7,423 and a high of $9,627 based upon Chad’s 2021 income of $470,651 and Angela’s actual income of $32,927. Chad has sought to impute $45,000 to Angela. Even if this were done, the range of spousal support based upon his current income would be well above the $3,500 (indexed) which he currently pays.[^5]

[191] However, Angela does not seek any increase in spousal support. She simply wants it to continue at the same amount, indexed, indefinitely.

Summary

[192] Chad is now required by court order to contribute to the purchase of the Children’s clothing which will relieve some of the time burden on Angela. The Children will spend more evenings at Chad’s. Even though he is not explicitly assuming any additional parenting responsibilities above the purchase of clothing, these additional evenings will also free Angela up to focus more on her career. The Twins are now 14 and D.M. is 12; it is implicit that over time, as they age, the Children will become more independent, also freeing up time which Angela can use to focus on her career. The Twins will be adults in four years. With respect to her contribution to Chad’s ability to obtain his position with TR Co., as I said above, while she did contribute, this contribution is temporally quite distant. It is most appropriately addressed by the duration of the current spousal support given Angela does not seek any increase.

[193] In my view, taking into account all the circumstances, in the exercise of my discretion, I am varying the 2016 Consent Order only to the extent that spousal support of $3,500 as indexed, shall continue until the Twins graduate from high school. Thereafter, it shall be reduced to $1,500 per month (and be indexed) and continue until D.M. completes high school in 2028.

[194] There is one final issue which needs to be addressed. In Chad’s closing submissions he requests an order which confirms the amount of child and spousal support actually paid by Chad to Angela in 2020 and 2021 so that he can deduct the spousal support paid. This seems to be a very simple issue but Angela did not provide her position. I am asking counsel to consult and consider whether this can be resolved. If it cannot then they may make short submission pursuant to the same timelines I have set out below for costs submissions.

[195] If the parties cannot agree on costs, they may make submissions, no longer than 10 pages each as follows: a) Chad within 10 days; b) Angela within 10 days thereafter.

[196] I would also ask the parties to consult and prepare a draft order where they address the specific dates when the Twins and D.M. will finish high school.

[197] This Court Orders that:

a. Pursuant to s. 17(7) of the Divorce Act, the Order of Justice Corbett dated May 27, 2016 is varied such that spousal support in the amount of $3,500 as indexed shall continue until the Twins complete high school. Thereafter, spousal support shall be stepped down to $1,500 and continue until D.M. finishes high school. The parties shall provide me with the dates when the Children finish high school for the purposes of the Order.

b. The parties may submit cost submissions in accordance with paragraph 195 above.

Released: November 18, 2022 Papageorgiou J.

Schedule “A”

Chad’s Evidence

1. Chad could not recall that Angela was working as a research engineer when they met, or the specifics of the spousal visa that Angela was under when they moved to Connecticut.

2. Chad initially stated that he could not recall how long he could work in the United States with a TM visa, then he insisted that it could be rolled over indefinitely, then he qualified this by saying that he was “almost certain of this.”

3. He could not recall whether Angela had taken any form of continuing education while married, whether Angela was pregnant when he cancelled his green card application, how much paternity leave he took, whether he attended doctor appointments for the Children when he and Angela returned to Toronto, the specifics of the initial support arrangements, or what financial disclosure he provided to Angela when they negotiated their initial spousal support.

4. Although he insisted that he wanted Angela to stay in the matrimonial home upon separation, he could not recall any specifics of this conversation.

5. While admitting that he unilaterally reduced his agreed upon support payments to Angela in 2013, he could not recall the reduced amounts and he could not recall that the shortfall was not made up until the end of the year.

6. Although he recalled that the parties settled upon outstanding support adjustments which had to be paid to Angela from 2012 to 2015, he could not recall what they were or any specifics.

7. He could not recall when divorce proceedings were commenced, going to court, the dates of court appearances or when matters were finally resolved. He did not know whether he had ever filed an Answer and did not even know what an Answer was.

8. He could not recall that in 2015 Angela brought a motion for spousal support.

9. When asked when the former litigation was concluded he said he thought it was in 2015 or 2016 whereas the final order was made in 2017.

10. When asked if Angela had expressed concerns about him returning the Children’s clothes to him unwashed, he denied that Angela had ever raised this. However, Angela’s November 2018 affidavit specifically references this issue.

11. One of Angela’s contentions is that she is required to purchase all the Children’s clothes and other necessities because he does not do so. Although he insisted that he has begun assuming some of these tasks such as the purchase of one of the Children’s school uniforms, he could not recall the items he says he purchased. As well, he also testified with respect to his clothing budget for the Children going forward and indicated that he is building on the clothing the Children already have. When asked what clothing items his household had purchased for the Children he did not know.

12. His new spouse Christy received a $250,000 payment from her ex-husband’s estate in 2018 for the support and maintenance of Christy’s daughter from her previous marriage. Although Chad conceded that they used this money to pay off their joint debts, he could not recall how much of his debts this money went towards paying.

13. On several occasions, it was apparent he did not know what was in his document brief. For example, he was asked to confirm whether he ever provided his 2012 income tax return and indicated he would be surprised if that was so, but would take Angela’s counsel’s word for it. He also never provided his full 2015 income tax return and indicated that this was his fault. He also did not provide his 2020 income tax return but in this instance indicated that he always provides what was asked and that it should be in their document brief, but it was not.

14. He did not specifically recall passport expenses for the children in 2019 but said it sounded familiar.

15. Even though the shut-down of schools and the commencement of on-line learning as a result of COVID-19 was a significant event for parents who had to supervise on-line learning in 2020, he could not recall when that was. He could also not recall whether the twins spent their online schooling during January 2022 at Angela’s. Or whether one of the twins Ha.M. was with Angela the nights of February 2, 2022 and January 19, 2022.

16. He indicated that he did not keep close track of how often since April 2021 the Children had gone to Angela’s during additional parenting days which he negotiated, and which were optional for the Twins and thought it might be a couple of times only.

Schedule “B”

SSAG Calculations – Based on the Incomes for Both Parties

Year	Chad’s Income	Angela’s Employment Income	Total Annual Spousal Support Paid	SSAG Low	SSAG Mid	SSAG High
2010	Total income: $367,307 - Employment income: $318,547 (USD $309,269) - Severance: $48,760	$0	N/A	$6,587 (monthly) $79,044 (annual)	$7,382 (monthly) $88,584 (annual)	$8,177 (monthly) $98,124 (annual)
2011	Total income: $267,783 - Employment income: $112,727 - Severance: $155,056	$0	N/A	$4,512 (monthly) $54,144 (annual)	$5,108 (monthly) $61,296 (annual)	$5,673 (monthly) $68,076 (annual)
2012	Total income: $221,043 - Employment income: $221,043 (net rental loss not included)	$0	$7,156	$3,135 (monthly) $18,810 (6 months – July to December) $37,620 (annual)	$3,936 (monthly) $23,616 (6 months – July to December) $47,232 (annual)	$4,563 (monthly) $27,378 (6 months – July to December) $54,756 (annual)
2012	Total income: $223,304 - Employment income: $221,043 - Gross rental income: $2,261	$0	$7,156	$3,200 (monthly) $19,200 (6 months – July to December) $38,400 (annual)	$4,001 (monthly) $24,006 (6 months – July to December) $48,012 (annual)	$4,620 (monthly) $27,720 (6 months – July to December) $55,440 (annual)
2013	Total income: $191,618 - Employment income: $94,933 - Interest and investment income: $91 - Net rental income: $11,209 - Sears severance: $85,385	$0	$21,500	$2,468 (monthly) $29,616 (annual)	$3,099 (monthly) $37,188 (annual)	$3,755 (monthly) $45,060 (annual)
2013	Total income: $227,209 - Employment income: $94,933 - Interest and investment income: $91 - Gross rental income: $46,800 - Sears severance: $85,385	$0	$21,500	$3,475 (monthly) $41,700 (annual)	$4,204 (monthly) $50,448 (annual)	$4,822 (monthly) $57,864 (annual)
2014	Total income: $218,477 - Employment income: $205,940 - Net rental income: $12,537	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$3,131 (monthly) $37,572 (annual)	$3,861 (monthly) $46,332 (annual)	$4,526 (monthly) $54,312 (annual)
2014	Total income: $399,163 - Employment income: $205,940 - Net rental income: $12,537 - Pension: $180,686	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$7,176 (monthly) $86,112 (annual)	$8,041 (monthly) $96,492 (annual)	$8,910 (monthly) $106,920 (annual)
2014	Total income: $270,339 - Employment income: $205,940 - Net rental income: $12,537 - Non-equalized portion of pension: $51,862	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$4,591 (monthly) $55,092 (annual)	$5,230 (monthly) $62,760 (annual)	$5,843 (monthly) $70,116 (annual)
2014	Total income: $252,740 - Employment income: $205,940 - Gross rental income: $46,800	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$4,104 (monthly) $49,248 (annual)	$4,807 (monthly) $57,684 (annual)	$5,397 (monthly) $64,764 (annual)
2014	Total income: $433,426 - Employment income: $205,940 - Gross rental income: $46,800 - Pension: $180,686	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$7,907 (monthly) $94,884 (annual)	$8,830 (monthly) $105,960 (annual)	$9,755 (monthly) $117,060 (annual)
2014	Total income: $304,602 - Employment income: $205,940 - Gross rental income: $46,800 - Non-equalized portion of pension: $51,862	$0	$42,000 ($22,800 + $19,200 paid in Dec 2015)	$5,324 (monthly) $63,888 (annual)	$5,990 (monthly) $71,880 (annual)	$6,627 (monthly) $79,524 (annual)
2015	Total income: $237,006 - Employment income: $236,967 - Interest and investment income: $39	$6,827 (employment income)	$42,000	$3,341 (monthly) $40,092 (annual)	$4,056 (monthly) $48,672 (annual)	$4,654 (monthly) $55,848 (annual)
2015	Total income: $248,706 - Employment income: $236,967 - Interest and investment income: $39 - Gross rental income: $11,700	$6,827 (employment income)	$42,000	$3,638 (monthly) $43,656 (annual)	$4,342 (monthly) $52,104 (annual)	$4,940 (monthly) $59,280 (annual)
2016	Total income: $247,411 - Employment income: $237,208 - Employment Insurance: $10,203	$11,855 (employment income)	$42,000	$2,743 (monthly) $32,916 (annual)	$3,737 (monthly) $44,844 (annual)	$4,518 (monthly) $54,216 (annual)
2017	Total income: $285,285 - Employment income: $285,285	$28,942 (employment income)	$42,000	$3,649 (monthly) $43,788 (annual)	$4,321 (monthly) $51,852 (annual)	$5,026 (monthly) $60,312 (annual)
2018	Total income: $444,672 - Employment income: $444,672	$32,392 (employment income)	$42,000	$6,535 (monthly) $78,420 (annual)	$7,583 (monthly) $90,996 (annual)	$8,634 (monthly) $103,608 (annual)
2019	Total income: $326,055 - Employment income: $326,055	$33,400 (does not include Home Buyer’s Plan non-payment RRSP income of $1,666.67)	$45,103 (includes lump sum payment of $1,857 for indexation from 2017 to 2019)	$4,185 (monthly) $50,220 (annual)	$4,956 (monthly) $59,472 (annual)	$5,808 (monthly) $69,696 (annual)
2020	Total income: $405,980 - Employment income: $405,980	$24,029 (employment income of $9,193, EI of $11,987, CERB of $2,000 and net self-employment income of $849)	$44,626	$5,751 (monthly) $69,012 (annual)	$6,712 (monthly) $80,544 (annual)	$7,717 (monthly) $92,604 (annual)
2021	Total income: $470,651 - Employment income: $470,651	$32,927 (employment income, self-employment income estimate of $3,500 and Canada Recovery Caregiving Benefit of $9,000)	$45,420	$7,606 (monthly) $91,272 (annual)	$8,780 (monthly) $105,360 (annual)	$9,961 (monthly) $119,532 (annual)
2021	Total income: $470,651 - Employment income: $470,651	$32,927 (employment income, self-employment income estimate of $3,500 and Canada Recovery Caregiving Benefit of $9,000)	$45,420	$7,423 (monthly) $89,076 (annual)	$8,522 (monthly) $102,264 (annual)	$9,627 (monthly) $115,524 (annual)

All three children living with Angela. Shared schedule was only commenced in May 2021.

Hannah and Hayley in shared schedule for SSAG purposes. Current child support of $6,435 based on 2020 income.

Schedule “C”

Respondent’s Support Calculations from March, 12, 2022

Date	SSAG Range	% NDI	Actual SS Paid	% NDI
2012 (July to December)	Assume similar to 2013	Assume similar to 2013
2013	$2,203 to $2,934	57.1-61.1%	$2,400	58.3%
2014	$3,129 to $4,281	55.2-59.9%	$3,600	57.3%
2015	$2,766 to $4,054	56.1-60.8%	$3,500	58.9%
2016	$2,110 to $3,232	55.0-59.2%	$3,500	60.0%
2017	$2,856 to $4,886	54.8-59.5%	$3,500	56.1%
2018	$6,478 to $8,822	52.0-56.7%	$3,500	47.0%
2019	$210 to $1,524	59.8-63.5%	$3,591	67.7%
2020	$4,759 to $6,656	57.4-61.5%	$3,719	55.6%
2021 (Jan to March)	$5,994 to $8,176	55.4-59.7%	$3,769	51.8%
2021 (Apr to Dec)	$3,287 to $7,888	50.0-59.8%	$3,770	50.9%

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA REID

Applicant

– and –

CHAD MACLEAN

Respondent

REASONS FOR JUDGMENT

Papageorgiou J.

Released: November 18, 2022

[^1]: As at the time of trial, the indexed amount of the spousal support was $3,785. For ease of reference and so as to not have to reference different quantum of spousal support over the years based on indexation, I am simply referencing the spousal support in these reasons to be $3,500 and indexed. [^2]: Angela and Kevin’s child L. was born on XXX XXX, 2015, and Chad and Christy’s child, H. was born on XXX XXX, 2015. [^3]: I add that while Chad has sought to characterize Angela as an obstructionist parent who would not agree to more parenting time, the evidence established that Angela supported gradual changes to the schedule to see how the Children adapted. Both Chad and Christy confirmed that in the past when Chad has asked for changes to his schedule, Angela has facilitated it. [^4]: Martins v. Martins, 2014 ONSC 113; MacDonald v. MacDonald, 2012 ONSC 6657; Mayer v Mayer, 2013 ONSC 7099; Lazare v Heinter, 2018 ONSC 3604, 17 R.F.L. (8th) 211. [^5]: I do not accept the SSAG calculations relied upon by Chad because they do not take into account the significant pension/RRSP deductions that Chad is able to claim on an annual basis and other issues raised by Angela and which is attached as Schedule “C”.