COURT FILE NO.: 678/14 (Kingston) DATE: 20220413

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LORA DAWN SPRIGINGS (WIEDERICK) Applicant

- and -

CHRISTOPHER FLETCHER CHARLES WIEDERICK Respondent

COUNSEL: Jacqueline M. Mills, for the Applicant Michael D. Swindley, for the Respondent

HEARD: January 12, 2022 (by video conference)

REASONS FOR DECISION

TROUSDALE J.

[1] This is a Motion to Change brought by the Applicant and a Cross-Motion to Change brought by the Respondent.

[2] The Applicant submits that although this proceeding is called a Motion to Change, she is not seeking a change, but rather she is requesting a declaration of the Respondent’s income for 2018, and an enforcement of spousal support and child support for 2019 to be calculated on the court’s determination of the Respondent’s income for 2018, in accordance with the terms of the consent Final Order made by Justice Swartz on April 27, 2018.

[3] The Respondent opposes the Applicant’s claim for a declaration and argues that there is no jurisdiction for the court to make the declaration requested. The Respondent submits that it is a Motion to Change and that the Respondent’s income for 2018 which will be used to determine his 2019 child and spousal support payments, should only be his employment income for 2018. In addition, the Respondent is seeking to terminate child support.

BACKGROUND

[4] The parties married on August 28, 1993. The parties had three children: a daughter (herein “the first child”), who is now 24 years old, a son (herein “the second child”), who is now 22 years old, and a daughter (herein “the third child”) who is now 19 years old.

[5] The Applicant and the Respondent each obtained a Bachelor of Engineering Physics degree. After graduating, both parties worked in Toronto. The Applicant stopped working when the first child was born and stayed at home to care for the three children until approximately 2015, except for doing some modest fitness training during the marriage.

[6] The parties moved to Kingston in or about 2000, as the Respondent became employed at a company (herein “the Company”) where the manufacturing facility was in Kingston. The Respondent subsequently received shares in the Company as part of his compensation.

[7] The parties separated on September 10, 2010, after 17 years of marriage. The parties were each 43 years old at that time.

[8] After separation, the Applicant obtained a Bachelor of Education degree. She became an Ontario Certified Teacher in 2014 and worked part-time for a year. In March 2015, the Applicant obtained a contract position as a career coach for a Faculty at Queen’s University. In 2017, the Applicant became a certified coach for a program in the Faculty.

[9] The parties entered into Partial Minutes of Settlement on April 27, 2018. Some parts of those Partial Minutes of Settlement were incorporated into the Final Order of Justice Swartz which was made on consent of the parties on April 27, 2018 (herein the “Final Order”).

[10] The Partial Minutes of Settlement settled the equalization of net family property. In general terms, the Applicant received the matrimonial home with a net equity of $245,000.00 and her savings of $85,000.00. The Respondent retained his shares in the Company valued at $275,000.00 and his savings of $74,000.00. The Applicant owed an equalization payment to the Respondent in the sum of $37,500.00 which was offset by the sum of $75,590.00 retroactive child and spousal support owing by the Respondent to the Applicant, resulting in the Respondent paying the Applicant a net amount of $38,090.00.

[11] The Final Order also dealt with the issues of child support and spousal support.

[12] The parties agreed that commencing May 1, 2018, the Respondent would pay to the Applicant $3,597.00 total per month for child support for the third child who was primarily residing with the Applicant, and for child support for the second child during the summer months only when he was residing with the Applicant, as he was living away from home during the university school year.

[13] The parties agreed that commencing May 1, 2018, the Respondent would pay spousal support to the Applicant in the sum of $6,893.00 per month. The parties agreed to share in the children’s special and extraordinary expenses in proportion to their respective incomes.

[14] The quantum of child and spousal support provided for in the Final Order was stated to be based on:

(1) The Applicant’s income for 2017 in the amount of $77,815.00. (2) The Respondent’s income for 2017 in the amount of $381,692.00. (3) The second child shall reside with the Applicant in the summer months only. (4) The third child shall reside primarily with the Applicant.

[15] The Final Order provided for an annual adjustment of child and spousal support and set out the method for determining the annual adjustment.

[16] The remaining issues were adjourned to a hearing set for May 7, 2018. On May 7, 2018 the matter came before me on the issue of duration of spousal support and was argued on the basis of written material filed as evidence, and on oral submissions of counsel. I determined that the duration of spousal support would be indefinite, subject to a material change in circumstances based on specified circumstances agreed upon by the parties to be incorporated into the Order made at that hearing.

ISSUES

[17] The issues in this matter are as follows:

(1) Does the court have jurisdiction to make a declaration as to the income of the Respondent in 2018 for the purposes of determining child support and spousal support for 2019 in accordance with the Final Order? (2) Should some or all or any of the Respondent’s proceeds of sale from his sale of shares in the Company in 2018 be included in his income for the purpose of determining spousal and child support for 2019 in accordance with the Final Order? (3) If some or all of the Respondent’s proceeds of sale of the shares in (2) herein should be included in the Respondent’s 2018 income for the purpose of determining his spousal and child support payments in 2019, how much should be included? (4) Should the Respondent’s sale of the shares in 2018 be excluded from the Respondent’s 2018 income as a non-recurring amount? (5) If the value of the shares at the date of separation was taken into account in the equalization of net family property, should some or all of the proceeds of sale of the shares be excluded from the Respondent’s income to avoid “double-dipping”? (6) What is the Respondent’s income in 2018 for the purpose of determining the child and spousal support to be paid by the Respondent to the Applicant in 2019? (7) Based on the finding of the Respondent’s income for the purpose of child and spousal support in 2018, what child and spousal support should be paid by the Respondent to the Applicant for the whole of 2019? (8) Should child support payable by the Respondent for any of the children born of the marriage be terminated? (9) If the child support for any of the children born of the marriage should be terminated, as of what date should it be terminated?

The dispute between the parties

[18] The dispute between the parties arises as a result of the Respondent’s sale of 15,000 common shares in the Company on March 31, 2018, being part of the shares owned by him in the Company at the date of separation.

[19] At the date of separation, the Respondent owned 150,000 Class A preferred shares and 25,000 common shares in the Company. These were shares which he received as part of his employment at no cost to him. The Respondent obtained a valuation of the shares as at the date of separation on September 10, 2010, by a certified business valuator in a report dated June 28, 2014. The shares were valued by that business valuator at $70,000.00.

[20] The Applicant obtained a valuation of the shares as at the date of separation on September 10, 2010, by a different certified business valuator in a report dated September 15, 2017. The shares were valued at a range of $1.2 million to $1.8 million with a midpoint of $1.5 million.

[21] The parties eventually agreed on a value of $275,000.00 as the value of the shares as at the date of separation, being September 10, 2010. This was the figure used in the equalization of net family property which the parties settled by Partial Minutes of Settlement dated April 27, 2018.

[22] Unbeknownst to the Applicant, the Respondent had entered into an agreement on March 31, 2018, to sell 15,000 of his common shares to his corporate employer for the sum of $798,750.00 with an effective date of March 31, 2018. The Respondent did not advise the Applicant of the sale prior to the Partial Minutes of Settlement being entered into on April 27, 2018. The Applicant was unaware of the Respondent’s sale of 15,000 common shares until 2019 when the Respondent’s 2018 income tax return was provided to the Applicant. The Respondent did not produce a copy of the sale agreement dated March 31, 2018, to the Applicant until it was attached as an Exhibit to the Respondent’s affidavit dated October 13, 2020.

[23] The Respondent declared employment income in his 2018 income tax return of $366,300.02. When the Respondent declared the sale of the shares in his 2018 income tax return, the sum of $399,242.50 of taxable capital gains was included at Line 127 of his return (from his completed Schedule 3 which reported actual capital gains of $798,750.00 less 50% resulting in taxable capital gains of $399,242.50). With his employment income and the taxable capital gains, the Respondent had a total Line 150 income of $765,542.52.

[24] The Respondent then utilized his lifetime capital gains deduction such that on the taxable capital gains of $399,242.50, the Respondent paid no income tax. As a result, the whole amount of $798,750.00 capital gains was received by the Respondent in 2018, free of income tax.

[25] Paragraph 5 of the Final Order provides as follows:

The parties shall annually, commencing in 2019, exchange income tax returns and Notices of Assessment by July 1st, and re-adjust, effective January 1st of that year, child and spousal support. Spousal support shall be payable on the basis of the parties’ Line 150 incomes for the year previous. A SSAG calculation shall be used to calculate spousal support, and the quantum of support shall be set at the mid-range. For the purposes of support, Line 150 incomes will be used with no tax deductions or credits except as associated with s. 7 expenses.

The Applicant’s Position

[26] The Applicant had commenced a Motion for a declaration and enforcement of the Final Order, but she ultimately withdrew her Summary Judgment Motion for a declaration as the Justice hearing the Motion indicated that as everything had been finally resolved in 2018, a Motion to Change would be required to bring the matter back before the court. Accordingly, the Applicant commenced this Motion to Change.

[27] The Applicant’s position is that although she was obliged to bring a Motion to Change, she is not seeking a change in the Final Order. She is seeking a declaration and enforcement of the Respondent’s income in 2018 so that the child and spousal support for 2019 can be determined in accordance with the Final Order. The parties have been unable to agree on the Respondent’s 2018 income for the purpose of determining child and spousal support for 2019.

[28] The Applicant argues that there are four options for determining the Respondent’s income for 2018 and the spousal support and child support for 2019 (with the child support based on full support for the third child and support for the second child for four months of summer support) as follows:

(1) The full capital gains income of $798,750.00 should be included in the Respondent’s income and it should be grossed up for the fact that the Respondent did not have to pay any income tax on that capital gain. This option would result in the Respondent having an income of $2,084,563.00 for 2018. According to the Applicant’s DivorceMate calculations filed, the Respondent would be required to pay child support of $18,583.00 per month and spousal support of $44,135.00 per month throughout 2019. (2) The full capital gains income of $798,750.00 should be included, and it should be grossed-up for the fact that the Respondent did not have to pay any income tax on it. There should be the sum of $165,000.00 deducted from that which is 60% of the $275,000.00 value which the parties agreed was the value of the 25,000 common shares at the date of separation, as the Respondent only sold 15,000 shares. According to the Applicant’s DivorceMate calculations (based inadvertently on a $275,000.00 deduction) the Respondent would have an income of $1,349,462.00 for 2018. The Respondent would according to those calculations be required to pay child support of $12,114.00 per month and spousal support of $53,652.00 per month throughout 2019. (3) The Respondent’s Line 150 income should be used as shown on his tax return. The Respondent would have an income of $765,542.00 for 2018. According to the Applicant’s DivorceMate calculations, the Respondent would be required to pay child support of $6,975.00 per month and spousal support of $17,208.00 per month throughout 2019. (4) The child and spousal support should be based only on the Respondent’s employment income. The Respondent would have an income of $366,300.00. The Respondent would be required to pay child support of $3,462.00 per month and spousal support of $6,412.00 per month throughout 2019.

[29] The Applicant submits that option (1) should be the option applied by the court.

[30] The Applicant disputes that the Respondent’s sale of the shares should be considered to be a non-recurring amount, as the Respondent still owns shares in the Company with whom he continues to be employed, and he may potentially sell more of those shares in the future.

[31] The Applicant argues that the Respondent’s work at the Company substantially increased the value of the Respondent’s shares in the Company since the date of separation.

[32] The Applicant submits that the Respondent misled her and the court in April and May 2018 by not disclosing his sale of the 15,000 common shares of the Company.

The Respondent’s position

[33] The Respondent’s evidence is that he sold the 15,000 shares to pay the sum of $38,090.00 owing to the Applicant pursuant to the Partial Minutes of Settlement, and to purchase a residence for himself as the Applicant received the matrimonial home in the equalization of the net family property.

[34] The Respondent argues that the money received by him from the sale of 15,000 common shares in 2018 should be excluded from his income in 2018 for the purpose of determining child support and spousal support for 2019 in accordance with the Final Order, as it was non-recurring income.

[35] In the alternative, the Respondent argues that if the taxable capital gain of $399,242.50 is included in his Line 150 income for determining child and spousal support, it should be reduced by the sum of $275,000.00, which was the value for the shares in the equalization of net family property. The Respondent submits that the Applicant should not be permitted to benefit from the same asset, both as a capital asset in equalization of property and as a source of income for support, as that would be “double-dipping”.

[36] The Respondent filed various DivorceMate calculations depending on what his Line 150 income is determined to be for 2018, and based on full child support for only the third child and no support for the second child.

[37] According to those calculations, if the Respondent’s income was determined to be only his employment income of $366,300.00, the child support for the third child would be $3,462.00 per month throughout 2019 and the spousal support would be $6,269.00 per month throughout 2019.

[38] If the Respondent’s income were determined to be $915,050.00 made up of employment income of $366,300.00 and capital gain of $548,750.00 (full capital gain less $275,000.00, being the value of the shares as set out in the equalization), the child support for the third child would be $8,291.00 per month throughout 2019 and the spousal support would be $32,653.00 per month throughout 2019.

[39] If the Respondent’s income were determined to be his employment income of $366,300.00 plus the capital gain in his Line 150 income of $399,242, the child support for the third child would be $5,731.00 per month throughout 2019 and the spousal support would be $26,396.00 per month throughout 2019.

ANALYSIS

The issue of a request for a declaratory order

[40] Section 97 of the Courts of Justice Act, R.S.O. 1990, c. C43 provides as follows:

Declaratory orders

97 The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make declarations of right, whether or not any consequential relief is or could be claimed.

[41] Subrule 1(7) of the Family Law Rules, O. Reg. 439/07 states:

Matters not covered in rules

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7) .

[42] The Applicant referred the court to the case of 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2011 ONSC 3871. At paragraphs 28 and 29, the nature of a declaration is discussed and the court stated that a declaration is a “formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”.

[43] Pursuant to Section 97 of the Courts of Justice Act, I see no reason why the Applicant is not able to ask the Superior Court of Justice for a declaration of the 2018 income of the Respondent for the determination of child support and spousal support to be paid by the Respondent throughout 2019 in accordance with the Final Order. All of the persons who will be affected by this declaration are parties to this proceeding and have had an opportunity to make submissions on the issues.

What is the Respondent’s income in 2018 for the purpose of calculating child and spousal support for 2019?

[44] The Respondent relies on the case of Fournier v. Labranche, 2019 ONSC 4651 which followed the precedent set in Ewing v. Ewing, 2009 ABCA 227 and McNeil v. McNeil, 2013 NBCA 65, where the capital gain from the sale of a capital asset was determined to be a non-recurring amount and excluded from income for the purpose of determining child support.

[45] I note that the three cases relied on by the Respondent all involve child support. None of the cases involve spousal support. Nevertheless, many of the principles are the same.

[46] The court does have the discretion pursuant to Section 17 of the Federal Child Support Guidelines (herein “the Guidelines”) to determine that inclusion of a capital gain pursuant to Section 16 of the Guidelines would not be the fairest determination of a spouse’s annual income for the purpose of determining income for child support. That is what occurred in the three cases upon which the Respondent relies. Nevertheless, a non-recurring amount is not automatically excluded from income. It is a matter of discretion and fairness.

[47] Although the Applicant had no knowledge of it, the Respondent knew that he had sold 15,000 shares of the Company on March 31, 2018 for $798,750.00. He would have known that the capital gain would appear in Line 150 of his income tax return for 2018. However, the Respondent committed himself in the Partial Minutes of Settlement dated April 27, 2018 to the support being calculated on the parties’ respective Line 150 incomes.

[48] The Respondent could have and should have advised the Applicant of the sale of those shares. If he had, he could have attempted to build into the Minutes of Settlement which the parties subsequently negotiated, how that capital gain would be dealt with in the following year with respect to the calculation of child support and spousal support. However, the Respondent failed to advise the Applicant of the sale. This was even though as at March 31, 2018 the parties were scheduled to start a five-day trial on May 7, 2018, for which the Respondent would have been required to update his financial disclosure to the Applicant at least four days before the trial pursuant to Rule 13 (12.2) of the Family Law Rules.

[49] As the parties had settled almost all the issues between them by way of the Partial Minutes of Settlement and the Final Order made on April 27, 2018, the sole issue of duration of spousal support came before me for determination on May 7, 2018. The Respondent was seeking a set termination date of June 1, 2024 while the Applicant was seeking that the spousal support should be indefinite in duration, subject to variation in the event of a material change in circumstances of either party.

[50] In my decision released on June 25, 2018, I found that the Applicant had a strong entitlement to compensatory spousal support as well as an entitlement to non-compensatory support. I stated in paragraph 39 of my decision: “The Respondent has no pension plan and he submits that his assets have not increased in value. He argues that if he pays spousal support until June 2024 as he proposes and retires at age 65, he will only have 7 more years to save for his retirement.”

[51] The Respondent’s submission in that regard was not accurate. The Respondent knew that the value of his shares had substantially increased in value, as he had just sold 15,000 common shares in the Company for substantially more than the negotiated value of his 25,000 common shares and his 150,000 class A preferred shares at the date of separation.

[52] In the case before me, the parties entered into Partial Minutes of Settlement and consented to the Final Order on April 27, 2018. They specifically agreed to a specified formula that the child and spousal support would be adjusted each year based on their Line 150 income for the prior year with no tax deductions or credits except as associated with section 7 expenses.

[53] In 2019, it was the first year after the Final Order was made to apply that specified formula, based on the 2018 Line 150 incomes of the parties. On the evidence before me, I find that specified formula should be applied as closely as possible. The Applicant started this court proceeding sometime in 2014 and it took three to four years to resolve this matter. The matter was resolved only ten days prior to a scheduled five-day trial. The terms of the Final Order should not be cast aside lightly.

[54] In the circumstances of this case, where the Respondent knew that his capital gain would appear in his 2018 income tax return before he executed the Partial Minutes of Settlement, he should not be permitted to argue the exclusion of the capital gain when it appeared in his Line 150 income. That is what the Respondent bargained for and he should be kept to his bargain.

[55] The Respondent knew that he had this capital gain when he consented to the Final Order, so it would not constitute a material change in circumstances.

[56] I find on the evidence before me that the Respondent’s Line 150 income should be his income for 2018 for the purpose of determining child support and spousal support for 2019 as provided for in the Final Order, subject to consideration of other adjustments hereinafter raised by the parties.

[57] The Respondent states that his employment income has decreased in each year since 2018 and suggests that his income for support purposes be averaged. However, the Final Order provides that the child support and spousal support are to be recalculated each year. Therefore, a finding regarding the Respondent’s income for 2018 will only affect child support and spousal support for 2019, as the child and spousal support will be re-adjusted in accordance with each party’s Line 150 income in each subsequent year pursuant to the Final Order.

[58] I would point out that the Respondent has likely benefitted from the provision that the support is to be calculated on his Line 150 income, as Section 16 of the Guidelines provides that the Line 150 income is to be adjusted in accordance with Schedule III. Paragraph 6 of Schedule III would require the taxable capital gains realized in the year to be replaced by the actual amount of capital gains realized in the year, which would result in the Respondent’s Line 150 income being determined to be $1,164,785.00 for the purpose of determining child support if the court found that it should not be otherwise adjusted pursuant to Section 17 of the Guidelines. This figure could also potentially be the figure used to determine spousal support to be paid in 2019.

[59] The Applicant argues that the capital gain should be grossed-up for the fact that it was completely tax-free to the Respondent.

[60] On the facts of this particular case, I do not agree that the capital gain should be grossed-up. Line 150 income is the relevant figure for calculation of child and spousal support pursuant to the Final Order. As the taxable capital gain sits on Line 150, it is taxable to the Respondent. It is after Line 150 on his tax return that the Respondent chose to use up a large part of his lifetime capital gains exemption, which resulted in the Respondent paying no tax. In effect, the Respondent spent most of his lifetime capital gains exemption which will not be available to him in the future. If the capital gain were grossed-up, it would result in the Respondent being required to pay child and spousal support in excess of the total amount he received as a capital gain, which in my view would not be fair or reasonable.

[61] With respect to the Respondent’s argument that he should be given a credit for the $275,000.00 value of the shares that was equalized in the settlement of the net family property in order to avoid “double-dipping”, the Applicant responds that if credit is given, the credit should only relate to the number of shares sold. The Applicant argues that if there is to be any deduction given, leaving aside the Class A preferred shares, the Respondent only sold 60% of his 25,000 common shares, and therefore he should only receive a deduction of $165,000 regarding these shares (60% of $275,000.00), rather than the deduction of $275,000.00 claimed by the Respondent.

[62] I agree that the amount that was included in the equalization of net family property regarding these 15,000 common shares ($165,000.00) should be taken into account and there should be no “double-dipping”. However, I find that as only 50% of the Respondent’s capital gain was included in the Respondent’s Line 150 income, the Respondent has already received a greater deduction than the $165,000.00 value of the 15,000 shares at the date of separation. Accordingly, I would not deduct any amount in this regard from the capital gain in the Respondent’s Line 150 income.

[63] I find on the evidence before me that the fairest determination of the Respondent’s 2018 income is his Line 150 income of $765,542.52 for the purpose of calculating child and spousal support for 2019 pursuant to the Final Order.

[64] Accordingly, there shall be a declaration that the Respondent’s 2018 income for the purposes of determining child support and spousal support for 2019 is $765,542.52.

What is the amount of child support and spousal support payable by the Respondent throughout 2019?

[65] There is a substantial difference between the DivorceMate calculations prepared by each party for the amount of child and spousal support to be paid by the Respondent in 2019. It appears that part of the difference arises because the parties do not agree on how many children are entitled to child support in 2019. The Applicant takes the position that the second child was residing with her during the summer of 2019. This means that child support for that year would be for one child at full time support and one child at four months support during the summer.

[66] The Respondent takes the position that the second child moved into a townhouse in September 2018 and has not lived with the Applicant since that time. His calculations for child support are based on one child at full time support. This results in a much higher amount of spousal support.

[67] The Applicant’s evidence on this issue in her affidavit dated February 12, 2021, is that she and the Respondent agreed that the second child was living with her in the summer of 2019.

[68] The Respondent’s evidence on this issue in his affidavit dated March 9, 2021, is that the second child shares a townhouse with some friends and has lived independently there since September 2018.

[69] The Respondent did not expressly dispute the Applicant’s assertion that the Applicant and the Respondent agreed that the second child was living with the Applicant in the summer of 2019. I find that for the summer of 2019, the parties agreed that the second child resided with the Applicant during the summer months and is entitled to child support for four months during the summer of 2019.

[70] Based on the Respondent’s Line 150 income of $765,542.00 for 2018, with the third child residing full-time with the Applicant in 2019, and the second child residing with the Applicant for four months in the summer of 2019, there shall be a declaration in accordance with the DivorceMate calculations (Option 3) filed by the Applicant, that the Respondent shall pay child support to the Applicant in the sum of $6,975.00 per month throughout 2019, and that the Respondent shall pay spousal support to the Applicant in the sum of $17,208.00 per month throughout 2019, with credit to be given to the Respondent for the amount of child support and spousal support already paid by him to the Applicant in 2019.

Termination of Child Support

[71] The Respondent has requested a variation of the Final Order to provide that none of the three children of the marriage shall be entitled to child support as of September 1, 2021.

[72] The eldest child completed her university degree in 2019. She is living and working in Toronto. In the Final Order, paragraph 3 stated that there shall be no child support payable for this child. Accordingly, there is no need for a further order to be made.

[73] The second child graduated from university in June 2021. The Respondent states in his Affidavit that the second child is living and working in Halifax.

[74] As the second child has graduated from university and is living and working in Halifax, I find the second child is no longer a child of the marriage. There shall be an order that child support for the second child shall terminate effective September 1, 2021, as requested by the Respondent.

[75] Pursuant to the Final Order, the Respondent was to pay child support to the Applicant for the third child on the basis that the third child was residing primarily with the Applicant. The third child graduated from high school in June 2020. She resided with the Applicant during her first year of university in 2020/2021 due to COVID-19. In the Respondent’s affidavit dated March 9, 2021, the Respondent states the third child was at that time living with the Applicant due to COVID-19. He went on to say that as the third child had now signed a lease commencing May 2021, the third child would be moving out of the Applicant’s home either in May 2021, or in September 2021 when her second-year studies commence.

[76] The Respondent states in his affidavit dated December 17, 2021 that the third child lived with the Applicant and the Respondent on a shared basis until September 1, 2021, when she moved into the rental apartment referred to above. The Respondent does not say when the shared basis commenced or what time he maintains the third child was residing with him.

[77] It is clear that as at March 9, 2021, the Respondent acknowledged that the third child was residing with the Applicant. The Respondent does not request in the calculations in his affidavit dated December 17, 2021 that he should pay less than full base Guideline support to the Applicant for child support for the third child up to August 31, 2021. Accordingly, I do not find it necessary to make a determination as to what time the third child spent with each party prior to August 31, 2021. For clarity, the Respondent shall pay full Guideline child support to the Applicant for the third child from the date of the Final Order to August 31, 2021 inclusive, and thereafter as set out herein.

[78] The parties share proportionate to their incomes the post-secondary expenses of the third child. The third child is now in second year university. As of September 1, 2021, she started living in a rented apartment with some friends. It is still possible that the third child will be residing with the Applicant during the four months off school each summer. Due to COVID-19, the third child has also been residing with the Applicant for part of this school year of 2021/2022.

[79] I find that the third child continues to be a child of the marriage and entitled to child support as hereinafter set out. Just as the parties agreed with respect to the second child, the Respondent shall continue to pay full child support to the Applicant for the support of the third child in the summer months when that child is primarily residing with the Applicant. In addition, if that child finds it necessary to reside with the Applicant for any months during the school year due to COVID-19, or for other reasonable reason, the Respondent shall also pay full child support to the Applicant for any such months.

[80] Accordingly, for the aforesaid reasons, the Respondent’s request to terminate child support for the third child at this time is dismissed.

RE-CALCULATION

[81] The Respondent has continued to pay the spousal and child support to the Applicant based on the 2017 income of the parties as set out in the Final Order. The parties and their counsel will need to re-calculate the child support and the spousal support for the years 2020, 2021, and 2022 (once the parties’ respective 2021 income tax returns are available) and reconcile what, if anything, is owed by one party to the other during the period from May 1, 2018 to the present time.

ORDER

[82] Final Order to go in accordance with these Reasons for Decision.

COSTS

[83] If the parties are unable to resolve the issue of costs between themselves, the Applicant may serve and file written submissions as to costs of no more than three typewritten double-spaced pages, together with a Bill of Costs, and a copy of any Offers to Settle, within 14 days of the release of this decision. The Respondent shall have 14 days from the date he is served with the Applicant’s submissions to serve and file responding submissions of no more than three typewritten double- spaced pages, together with a Bill of Costs, and a copy of any Offers to Settle. The Applicant shall have 7 days from the date she is served with the Respondent’s submissions to serve any reply submissions of no more than two double-spaced typewritten pages. If no submissions regarding costs are received within the aforesaid timelines, there shall be deemed to be no costs.

Justice A.C. Trousdale Released: April 13, 2022