SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FC215/02- 02

DATE: August 12, 2022

RE: Samuel Pedro Goldman, Applicant

AND:

Mariana Weiss Goldman, Respondent

BEFORE: T. PRICE J.

COUNSEL: Anthony Macri - Counsel for the Applicant

Carolyn J. Lloyd - Counsel for the Respondent

HEARD: February 1 and March 2, 2022

ENDORSEMENT

Overview

[1] Dr. Pedro Goldman (Dr. Goldman) and his former spouse, Mariana Weiss Goldman (Ms. Weiss Goldman), separated in 2001 after a 27-year marriage. On April 11, 2003, Justice G.A. Campbell made a consent spousal support order which required Dr. Goldman to pay Ms. Weiss Goldman spousal support in the amount of $3,000.00 per month. A cost-of-living adjustment was to be applied on November 1, 2004 and on the first day of November each year thereafter.

[2] The order remains in force. The amounts payable under it are to continue being paid pending any agreed-upon change or further court order. Dr. Goldman has continued to comply with the order.

[3] The order further contained a clause providing that spousal support was to be reviewed on or after January 1, 2005 or upon Ms. Weiss Goldman obtaining employment, whichever event would first occur. An earlier request by Dr. Goldman for the order to be reviewed was terminated early. This proceeding comprises the first full review of the order.

[4] Dr. Goldman now seeks to terminate his support obligation. Ms. Weiss Goldman opposes his request. She seeks, instead, a significant increase in spousal support.

[5] For the reasons that follow, I order that Dr. Goldman shall continue to pay spousal support to Ms. Weiss Goldman, commencing September 1, 2022, in the amount of $2,250.00 per month until December 31, 2024, at which time Dr. Goldman’s obligation to continue paying spousal support to Ms. Weiss Goldman shall terminate. The payments shall not be indexed.

Procedural Matters – Focused Hearing

[6] Dr. Goldman brought a Motion to Change which was filed on January 10, 2020. Ms. Weiss Goldman’s Response to Motion to Change, which includes her claim for increased spousal support, was dated June 25, 2020. In 2021 the parties attended both a Case Conference and a Settlement Conference, the latter of which involved more than one appearance. Ultimately, on November 24, 2021, Justice P. Henderson ordered that the “matter” be adjourned to February 1, 2022 for a one-half-day focused hearing.

[7] A focused hearing is a trial. As a result, the parties must include only trial worthy evidence in their focused hearing affidavits. (Children's Aid Society of Algoma v. L.M., [2021] O.J. No. 7322 at para. 10)

[8] Focused hearings have their genesis in Family Law Rule 1(7.2), and their purpose is for the court to make factual findings that will be pivotal to the determination of larger issues. (Verma v. Bhooi, [2019] O.J. No. 5781 at para. 3)

[9] In this case, however, both parties have requested that I determine all of the issues between them.

[10] As to how a focused hearing should proceed, Justice J. Kukurin wrote in Children's Aid Society of Algoma v. L.M., [2021] O.J. No. 7322, at paragraph 5:

However, as the focused hearing is not provided for in the Family Law Rules, it is not surprising that how a focused hearing is to be held is not specified. The procedure on a focused hearing is judge driven, admittedly with the helpful suggestions of counsel (or parties). A focused hearing for one case may look totally unlike one for another case. In short, the focused hearing is a procedural tool that has to be customized for the particular issue or issues it is meant to determine, and for the particular statute that applies to the proceeding in which the focused hearing is to be used.

[11] In Verma v. Bhooi, “[t]he hearing took the form of a hybrid trial, with the parties giving their evidence in chief by affidavit, with a few minutes to augment their evidence testimony, and then for each to be cross-examined.” (Paragraph 4)

[12] A good example of the type of order that should be made when directing a focused hearing is found at paragraphs 32-42 of Justice P. McEachern’s decision in Hubley v. Fitzpatrick, [2020] O.J. No. 346.

[13] In his order, Justice Henderson required that the parties file a Statement of Agreed Facts, factums, and affidavits regarding matters not agreed to “limited to twelve (12) pages and ten (10) pages for exhibits” and updated financial statements.

[14] Filing deadlines were set. On the hearing date, each counsel was to be allowed one hour for submissions with a 15-minute reply for counsel for Dr. Goldman. There was no provision in the order for oral evidence or cross-examination.

[15] At first glance, it appeared that both parties complied with the order of Justice Henderson. However, in his affidavit prepared for the focused hearing, Dr. Goldman included a hyperlink to “Dropbox,” “to ensure completeness of the record and respect the page limits.” The materials accessed through the Dropbox hyperlink were organized under fifteen tabs and consisted of several hundred pages.

[16] In his affidavit, Dr. Goldman referred both to appended sworn exhibits and to some of the materials obtained through the Dropbox hyperlink, the contents of which were not deposed to in the affidavit.

[17] In Paragraph 1 of the affidavit, however, Dr. Goldman deposed that he believed information obtained from third parties to be true. This, presumably, included the content of documents contained within the materials obtained through the Dropbox hyperlink, many of which were originally produced by or on behalf of Ms. Weiss Goldman.

[18] Having reviewed the documents, I had questions about some that appeared to be more relevant than others to the issues before me. Those questions added to one that I had raised at the outset of the hearing with counsel about how I was to resolve disputed facts in the absence of viva voce evidence by the parties or cross-examinations, given that I had only affidavits to rely upon. (I do note, however, that Ms. Weiss Goldman was cross-examined in 2002, and a transcript of that cross-examination was included amongst the Dropbox materials supplied by counsel for Dr. Goldman.)

[19] Mr. Macri, counsel for Dr. Goldman, suggested, without any specific opposition by Ms. Lloyd, counsel for Ms. Weiss Goldman, that I should first attempt to address any issues which arose in the case based on what the documentary evidence revealed. If, however, I was to conclude that a disputed fact could not be resolved on only the written materials, the parties should be required to provide viva voce evidence on the disputed facts.

[20] Unfortunately, what Justice Henderson intended to be a focused hearing really quickly turned into a full trial of Dr. Goldman’s Motion to Change and Ms. Weiss Goldman’s counterclaim, all to be conducted without the benefit of viva voce evidence by either party.

[21] In an attempt to remedy that situation, I concluded that there should be a focused hearing within the focused hearing (a mini focused hearing) about any facts about which I felt the need to hear viva voce evidence.

[22] As a result, I convened a hearing of the parties on March 2, 2022. Having received the evidence of only Ms. Weiss Goldman on that date, I then determined that, with the consent of both parties, I would proceed to decide the triable issues in the manner originally directed by Justice Henderson and consented to by the parties.

Agreed Facts

[23] The following basic facts are taken from the Statement of Agreed Facts filed by the parties in accordance with the order of Justice Henderson. I have added, in bracketed italics, pertinent information which is elaborated on by the parties in their affidavit evidence.

Personal Information

[24] Dr. Goldman is currently 73 years of age. Ms. Weiss Goldman is currently 72 years of age. They have no children.

[25] Dr. Goldman, who was born in Argentina and Ms. Weiss Goldman, who was born in Israel, began to cohabit on August 1, 1973 and were married on March 18, 1975. At the time of their marriage, they were 26 and 25 years of age, respectively.

[26] The parties separated on March 22, 2001 in London, Ontario after a marriage of 26 years and cohabitation of 28 years. At the time of their separation, Dr. Goldman was 52 years of age and Ms. Weiss Goldman was 51 years of age.

[27] Both became Canadian citizens on November 25, 1982.

Pre-Marital Education and Employment

[28] The parties met at Technion, Israel Institute of Technology in Haifa, Israel, from which both graduated with a B.Sc. (Honours) in physics in 1975.

Education and Employment While Married – Dr. Goldman

[29] From January to July 1976, Dr. Goldman was enrolled in the M.Sc. program in Physics at Technion and worked as a teaching assistant. On August 15, 1976, he moved to Canada to continue his graduate studies, enrolling in the M.Sc. program in Physics at the University of Windsor, where he obtained his M.Sc. in 1977. He worked as a teaching assistant while pursuing this degree.

[30] From 1977 to 1981, Dr. Goldman pursued a Ph.D. in Physics at the University of Windsor, while also continuing to work as a teaching assistant. He obtained his Ph.D. in Physics in 1981. For the balance of 1981 and part of 1982, Dr. Goldman worked as a post-doctoral fellow at the University of Windsor.

[31] In 1982, Dr. Goldman began to work as a professor in the Department of Physics at the University of Western Ontario, where he held several professorships between 1982 and 2001.

Education and Employment While Married – Ms. Weiss Goldman

[32] In 1975-1976, Ms. Weiss Goldman worked as a full-time high school teacher of Mathematics in Israel.

[33] Ms. Weiss Goldman moved to Canada on October 27, 1976 as the accompanying wife of a foreign student. As such, she was not allowed to work or study in Canada. She returned to Israel in 1977 to obtain a Foreign Student Visa, which allowed her to do both. She returned to Canada that same year.

[34] Upon her return to Canada in 1977, Ms. Weiss Goldman enrolled in the undergraduate Psychology program at the University of Windsor from 1977 to 1978, while also working as a teaching assistant in the Departments of Mathematics and Physics. She obtained her B.Sc. in Psychology in 1978.

[35] From 1978 to 1980, Ms. Weiss Goldman was enrolled in the M.A. Program in Psychology at the University of Windsor, while also working as a teaching assistant in the Department of Psychology. She obtained her M.A. in Psychology in 1980.

[36] From 1980 to 1982, Ms. Weiss Goldman was enrolled in a Ph.D. program in Social Psychology at the University of Windsor, during which she continued to work as a teaching assistant. (Ms. Weiss Goldman did not complete her Ph.D. in Psychology.)

[37] From 1982 to 1983, Ms. Weiss Goldman was enrolled in the M.A. program in Economics at the University of Western Ontario, during which time she also worked as a teaching assistant. She obtained her M.A. in Economics in 1983.

[38] From 1983 to 1988, Ms. Weiss Goldman was enrolled in the Ph.D. program in Economics at the University of Western Ontario. She worked as a teaching assistant in the Department of Economics until 1986. (Ms. Weiss Goldman did not complete her Ph.D. in Economics.)

[39] In 1986, Ms. Weiss Goldman began to work as a lecturer in Economics at the University of Windsor. (She did not renew her contract in 1987.)

[40] Ms. Weiss Goldman enrolled in the MBA program at the Ivey School of Business at the University of Western Ontario in 1989 and received her MBA degree in 1991.

[41] From 1991 to 1996, Ms. Weiss Goldman looked for employment but was not employed.

[42] In 1996, Ms. Weiss Goldman opened a dog training business called “Sure Victor”, in which Dr. Goldman was a 50% partner from 1996 to December 2000. “Sure Victor” operated at a loss from 1998 to 2001.

Post-Separation Employment and Education - Dr. Goldman

[43] From 2001 to 2006, Dr. Goldman continued his employment as a Physics professor at the University of Western Ontario.

[44] In January 2006, Dr. Goldman began working as a professor in the Department of Physics at Ryerson University. (There, his focus was on Medical Physics.) He has continued to be employed there.

Post-Separation Employment and Education - Ms. Weiss Goldman

[45] Following the separation, Ms. Weiss Goldman continued to operate “Sure Victor.” It continued to lose money from 2001 to 2008.

[46] In 2001 and late 2002, she completed courses designed to assist her to find employment.

[47] From 2001 to 2006, she gained experience preparing tax returns by volunteering at free tax clinics offered by Canada Revenue Agency.

[48] In 2004, she began to offer paid tax-preparation services out of her home. She has continued to do so since then.

Spousal Support Paid by Dr. Goldman – Prior to Order of April 2003

[49] In the period before the order of April 2003, Dr. Goldman paid spousal support to Ms. Weiss Goldman, monthly, from August 1, 2001 to April 1, 2003 in amounts of $2,500.00 (once), $3,100.00 (15 times) and $3,700.00 (5 times).

Spousal Support Paid by Dr. Goldman – Pursuant to the Order of April 2003

[50] Since the order of April 2003, Dr. Goldman has paid support monthly in accordance with its terms. The monthly amount required to be paid as of November 1, 2021 is $4,033.56.

[51] Over the period between May 1, 2003 and December 31, 2021, Dr. Goldman paid spousal support totaling $784,303.12 in accordance with the terms of the order.

Total Spousal Support Paid by Dr. Goldman

[52] Over the entirety of the period that he has been paying spousal support, Dr. Goldman has paid $851,803.12 to Ms. Weiss Goldman.

Previous Motion to Review Support

[53] In March 2005, Dr. Goldman brought a Motion to Change spousal support. He withdrew the motion in August 2006. The parties disagree on the reason for the withdrawal.

Additional Evidence of the Parties

[54] Both parties swore affidavits at the time they filed their pleadings in this matter. Because the contents of those affidavits are largely subsumed in either their Statement of Agreed Facts or in the affidavits that they swore for the focused hearing, I will be referring to the evidence from the latter affidavits as I review the various issues arising on this review.

Applicable Legal Principles: Review, Not Variation

[55] Counsel for the parties agreed that, since the order of Justice Campbell contained a clause requiring a review of “the issue of spousal support,” neither party was required to prove a material change in circumstances, as would be required in the event of a variation application. (Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, paras. 39, 41)

[56] The problems presented by this review may be better understood if I set out in full some of the comments made in previous cases about such orders:

Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, 2006:

36 Review orders under s. 15.2 have a useful but very limited role. As the amicus curiae pointed out, one [page 937] or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act.

38 Here the review order was justified by serious doubt at the time of trial as to the true financial situation and prospects of the wife and what level of support would actually be needed. See Schmidt v. Schmidt (1999), 1999 BCCA 701, 71 B.C.L.R. (3d) 113 (C.A.), at para. 9:

[Review orders] are considered particularly useful in circumstances where there is some doubt as to whether spousal maintenance should be continued and, if so, in what amount.

39 Willick and Choquette establish that a trial court should resist making temporary orders (or orders subject to "review") under s. 15.2. See also: Keller v. Black, 2000 22626 (ON SC), [2000] O.J. No. 79 (QL) (S.C.J.). Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order. This is because on a "review" nobody bears an onus to show changed circumstances. Failure to tightly circumscribe the issue will inevitably be seen by one or other of the parties as an invitation simply to reargue their case. That is what happened here. The more precise condition stated in the reasons of the trial judge was excessively broadened in the formal order. This resulted in a measure of avoidable confusion in the subsequent proceedings.

Fisher v. Fisher, (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.)

[68] In "Spousal Support Post-Bracklow: The Pendulum Swings Again?" (2001) 19 C.F.L.Q. 185, at para. 218, Professor Rogerson refers to Choquette and Andrews and concludes, "to justify a review order, there must be either a concern about a spouse's failure to make reasonable efforts toward self-sufficiency or a clear expectation of a change at an identifiable point in the future."…

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

[57] Unfortunately, because the order of Justice Campbell was made on consent, and neither the parties nor Justice Campbell specifically identified the factual underpinnings for the support ordered, or the specific parameters of the review, other than specifying that Ms. Weiss Goldman obtaining employment would trigger it, as would the passage of two years, whichever first occurred, counsel agreed that this review was to be “generally equivalent to an initial application for support [necessitating] a complete rehearing of every issue from entitlement to quantum.” (Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241, at para. 63 (C.A.); Verkaik v. Verkaik, [2020] O.J. No. 5703, at para. 21 (Div. Ct.))

[58] As Justice M.A. Penny wrote in Verkaik, at paragraph 22, “On the return, the court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies.”

[59] That being the case, I must determine, on the available evidence, as of the date of the focused hearing:

i. whether Ms. Weiss Goldman remains entitled to spousal support and, if so, the legal basis for her entitlement; and

ii. should Ms. Weiss Goldman be entitled to support:

1. the parties’ incomes, including whether income should be imputed to either party;

2. the quantum of support, if any, to be paid by Dr. Goldman; and

3. the duration that any such support is to be paid.

General Legal Principles Pertaining to Spousal Support

[60] The legal principles pertaining to whether, and on what bases, spousal support is payable have been articulated numerous times, including by Justice D. Chappel in the oft-cited Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001.

[61] There, Justice Chappel examined the statutory factors and objectives pertaining to spousal support as set out in the Divorce Act and reviewed the models on which an entitlement to spousal support has been held to exist. The following is taken from her decision in that case. (footnotes omitted)

i. Statutory Factors: Section 15.2(4) of the Divorce Act

43 Sections 15.2(1) and (2) of the Act set out the court's jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. Section 15.2(4) of the Act directs the court hearing a spousal support claim to take into consideration "the condition, means, needs and other circumstances of each spouse," including:

a) The length of time the spouses cohabited;

b) The functions performed by each spouse during cohabitation; and

c) Any order, agreement or arrangements relating to support of either spouse.

46 The court's duty pursuant to section 15.2(4) of the Act to consider the parties' "condition, means, needs or other circumstances" in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis… Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown," and the focus of the analysis is therefore "the effect of the marriage in either impairing or improving each party's economic prospects." The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus….

ii. Statutory Objectives: Section 15.2(6) of the Divorce Act

48 Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:

15.2(6) Objectives of Spousal Support Order- An order made under subsection (1)… that provides for the support of a spouse should:

1. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

2. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

3. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

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

49 The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties….

52 …The issue of entitlement is the preliminary issue to determine in any spousal support claim.

2. General Principles Respecting Entitlement

i. Overview of the Grounds For Entitlement

53 As noted above, the parties both acknowledge that the Respondent is entitled to spousal support but disagree respecting the basis of this entitlement. This issue is important to the determination of quantum and duration of spousal support, and also to the question of whether the Respondent should be able to benefit from any post-separation increases in the Applicant's income.

54 The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support…

Is Ms. Weiss Goldman Entitled to Spousal Support and, if so, on what Basis?

[62] Since, as Justice M.A. Penny wrote in Verkaik, supra, at paragraph 22, on a review, “[t]he issue of support is determined afresh on the facts and the original onus of proof applies”, I begin with an examination of Ms. Weiss-Goldman’s position, since she is the support claimant.

Parties’ Positions - Entitlement

Ms. Weiss Goldman

[63] Ms. Lloyd, counsel for Ms. Weiss Goldman, submitted that her client “continues to be entitled to periodic spousal support on both a compensatory and non-compensatory basis.”

[64] She wrote that “[e]ntitlement to spousal support is established if one of the statutory objectives of the Divorce Act are met” noting that “none of the objectives is paramount,” according to the Supreme Court’s decision in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420.

[65] Again, citing Bracklow, Ms. Lloyd further noted that “many modern marriages consist of a “complex mix of interdependence and independence,” and [that] many claims for spousal support involve aspects of both compensatory and non-compensatory principles. It is not a question of applying one basis of support to the exclusion of the other. Instead, the Court is called to “apply relevant factors and strike the balance that best achieves justice in the particular case.” (italics in original factum)

[66] Ms. Lloyd submitted that, in this case, “there are compensatory and non-compensatory elements present,” arguing that Dr. Goldman “was certainly advantaged by the marriage and its breakdown,” and that Ms. Weiss Goldman ‘is facing severe economic hardship as a result of the breakdown of the marriage.”

[67] Ms. Lloyd further submitted that the facts do not bear out another finding sought by Dr. Goldman – that Ms. Weiss Goldman is economically self-sufficient.

[68] She also submitted that Dr. Goldman not only has an obligation to continue to pay spousal support, but that Ms. Weiss Goldman is also entitled to share in the post-separation increases in his income.

Dr. Goldman

[69] Dr. Goldman contended that Ms. Weiss Goldman is longer entitled to spousal support. He submitted that the parties clearly intended Ms. Weiss Goldman to become economically self-sufficient within a short period of the April 11, 2003 order - hence, the inclusion of a provision for a review of spousal support on or after January 1, 2005 or upon Ms. Weiss Goldman obtaining employment, whichever might first occur.

[70] From the perspective of April 11, 2003, the review could have occurred in 21 months. As a result, Dr. Goldman submits, Ms. Weiss Goldman has received substantially more spousal support over the ensuing years than either party ever intended her to receive initially. As a result, his counsel submitted, spousal support is no longer payable and should be discontinued.

[71] Mr. Macri, counsel for Dr. Goldman, further submitted that if the court “must make an analysis” of Ms. Weiss Goldman’s present entitlement to spousal support, her entitlement is not compensatory in nature - only needs based (non-compensatory).”

Analysis

[72] At the outset, I find that, because Justice Campbell’s order of April 11, 2003 was noted as coming on the heels of a two-day hearing, and was made on consent, the parties clearly agreed that Ms. Weiss Goldman was, at that time, entitled to spousal support on some basis.

[73] Accordingly, whether they adverted to this or not in their settlement agreement, it also means that one or more of the objectives found in s. 15(6) of the Divorce Act must have been agreed upon by the parties as having applied at that time.

[74] Unfortunately, the parties failed to specify on what basis or bases the original right to support arose. As a result, I need to consider that issue, having regard to the facts as they existed in 2003.

[75] I am of this view for the following reason: if, for instance, Ms. Weiss Goldman was entitled to compensatory support in 2003, the facts that led to that entitlement would still be pertinent today. Conversely, if she was not entitled to compensatory support in 2003, there is likely nothing that she could have done in the intervening years to resurrect the right to such support.

[76] On the other hand, whether or not Ms. Weiss Goldman was entitled to spousal support on the basis of need in 2003, her circumstances today might lead to a different finding.

[77] I begin by adverting to the observation of Justice Chappel in Thompson that the spousal support objectives set out in s. 15.2(6) (a) and (b) of the Divorce Act “primarily relate to compensatory support”, while those set out in s. 15.2(6) (c) and (d) “primarily relate to non-compensatory support.”

Compensatory Support

[78] Justice Chappel described compensatory support as follows in Thompson v. Thompson:

ii. Compensatory Support

55 The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

56 Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse's income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party's income.

57 In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.

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.

[79] The parties have no children. This fact, alone, in my view, removes from consideration the objective of a compensatory spousal support award set out in s. 15(6)(b) of the Divorce Act.

[80] That leaves for analysis the objective set out in s.15(6)(a). In doing so, I must review the facts relied on through the lens of “compensation for the sacrifices and contributions” claimed to have been made by Ms. Weiss Goldman, “economic losses which [she claims to have] experienced and may continue to experience as a result of the marriage”, and the “benefits which [Dr. Goldman] has received as a result of these sacrifices and contributions.” (Thompson, at para. 55, supra)

[81] In support of Ms. Weiss Goldman’s claim to compensatory support, Ms. Lloyd argued that “[i]t is well established law” that “spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.”

[82] That quote is taken from the first paragraph of the Supreme Court’s decision in Bracklow. It is a reassertion of the key principle set out in Moge v. Moge, 1992 25 (SCC), [1992] S.C.J. No. 107. It was written, however, as a preamble statement to a case with quite different facts, one in which the issue examined was the obligation of a spouse to support an ailing former spouse, a situation where compensatory support might not otherwise be applicable. It is, in essence, the decision which makes the case for needs-based spousal support.

[83] As Justice Chappel noted in Thompson at para. 56, however, “a compensatory claim can also be founded on other forms of contribution to the other party's career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party's income.”

[84] It is Ms. Weiss Goldman’s position that Dr. Goldman “gained a significant economic advantage from the marriage because…. his career development superseded that of [Ms. Weiss Goldman], creating a disparity in their career patterns and widening the gap between their respective earning powers.”

[85] Her counsel further submitted that Ms. Weiss Goldman’s “education and career choices are a product of what was available to her where the parties lived and where [Dr. Goldman’s] career developed.”

[86] Lastly, she submitted that while Ms. Weiss-Goldman did, in fact, “forego educational and career advancement opportunities” because of Dr. Goldman’s career trajectory, “the fact that [Ms. Weiss Goldman] was able to pursue education while the [Dr. Goldman] developed his career should bear little weight, if any, to her compensatory spousal support claim.”

[87] In contrast, Dr. Goldman submitted that the facts which pre-dated 2003 and those existent at the time that Justice Campbell made his order in April 2003, which remain in place today, clearly weighed (and continue to weigh) against an award of compensatory spousal support.

[88] In his factum, counsel for Dr. Goldman listed eighteen specific facts which, he contends, support this submission. They included Ms. Weiss Goldman not doing any of the following, which have been found to support claims for compensatory support:

i. sacrificing any career or economic opportunities for the marriage;

ii. sacrificing any educational opportunities;

iii. making any contributions to Dr. Goldman’s career in a “highly scientific profession;”

iv. supporting the family while Dr. Goldman upgraded his education;

v. selling any assets or a business for the benefit of the family; and

vi. assisting Dr. Goldman in establishing any business.

[89] They also included Dr. Goldman:

i. not benefitting from any sacrifices made by Ms. Weiss Goldman during the marriage for the sake of his career because she made none; and

ii. making significant investments of time and money into Ms. Weiss Goldman’s education and career.

[90] From a review of the evidence and submissions, it is clear that the key elements underlying Ms. Weiss Goldman’s claim to, and Dr. Goldman’s denial of, compensatory support lies in the extent, if any, to which:

i. Dr. Goldman either benefitted from Ms. Weiss Goldman’s contributions to his career, or

ii. Ms. Weiss Goldman suffered disadvantages as a result of making those contributions.

[91] It is also anchored in her claim that her educational choices were “a product” of where she felt compelled to reside because of Dr. Goldman’s career choices.

Sacrifices and Contributions

[92] Ms. Lloyd submitted, citing Shaw v. Shaw, 2003 64335 (ON SC), [2002] O.J. No. 2782 (C.A.), that “[t]he payor spouse’s economic advantage gives rise to an entitlement to spousal support, even in cases where the recipient did not experience an economic disadvantage. Roles taken or contributions made by a spouse during marriage may involve sacrifices including the impairment of income-earning potential; the foregoing one’s own educational and career advancement opportunities; and the contribution to the career development of the other spouse.”

[93] In Shaw, Justice Kiteley found that the recipient wife’s career drive had suffered a setback when she had children, despite the lack of evidence that she had, in fact, suffered disadvantages in her career. Justice Kiteley also was “not prepared to find that the disadvantage which [the payee spouse] experienced as a result of her role in the relationship was significant.” Justice Kiteley held that, although there was a compensatory component to the spousal support ordered, it was to be reviewed in 5 years.

[94] Ms. Weiss Goldman followed Dr. Goldman to Canada in 1976, giving up her teaching position in Israel to do so. She undoubtedly sacrificed that employment to support her husband’s pursuit of his academic goals at that time. She also placed her life somewhat on hold when she returned to Israel in order to re-apply for a different immigration status, a move that also worked to her advantage since it allowed her to work in Canada.

[95] Once both parties were in Canada permanently, there was only one further move related to Dr. Goldman’s career. That occurred in 1982, when the parties moved from Windsor to London when Dr. Goldman accepted a faculty position at Western.

[96] The most immediate negative effect for Ms. Weiss Goldman of that move was her failure to remain in Windsor at a time when she was close to completing her psychology doctorate. (According to Dr. Goldman, Ms. Weiss Goldman had completed the coursework for her Ph.D. in Psychology at the University of Windsor but never completed her thesis. Ms. Weiss Goldman appears to agree that only her thesis remained to be completed.)

[97] The question is whether Ms. Weiss Goldman was compelled by the move to abandon the pursuit of her doctorate in Social Psychology. Her evidence on this point is unconvincing.

[98] According to that evidence, Ms. Weiss Goldman gave up on the pursuit of her doctorate in Social Psychology in Windsor for a number of reasons, none of which, in my view, amount to sacrificing her education or career for the benefit of Dr. Goldman.

[99] She first asserted that she discontinued her work on her doctorate following the move to London because of her belief that it would have been “too arduous and complicated to communicate” with her thesis supervisor in Windsor while working remotely from London. While the claim was made, quite accurately, that communication in the 1980s was more primitive than today, she provided no evidence why such communications would have been “too arduous and complicated” to occur or even be attempted. In 1982, business was routinely conducted by telephone and mail. There is no evidence that anything on which Ms. Weiss Goldman was working demanded an immediate response. A move to London surely did not mean the end of her ability to communicate regularly with her thesis supervisor.

[100] Additionally, Ms. Weiss Goldman declared it to be “unreasonable to expect anyone to make a four-hour round trip many times per week [between London and Windsor], especially during a Canadian winter.” She does not explain why such an expectation would have been “unreasonable,” particularly for someone who was nearing the conclusion of her academic pursuit in Social Psychology.

[101] She also provided no indication of how “many times per week” she would have had to travel between London and Windsor or even why any such travel would have had to occur. She also failed to indicate whether she had even attempted such travel during the winter, let alone during the summer, spring or autumn.

[102] Lastly, Ms. Weiss Goldman indicated that her thesis supervisor had been in a motorcycle accident which, she claimed, prevented him from being able to supervise her work. She, again, provided no evidence about whether she had made any effort to find an alternate thesis supervisor at Windsor. If there would have been no person who could have supervised her completion of the doctorate, surely this explanation means that the injury to the thesis supervisor meant the loss of Ms. Weiss Goldman’s ability to complete her doctorate, rather than the move to London. Her place of residence was unrelated to the injury suffered by her thesis supervisor.

[103] Notwithstanding, Ms. Weiss Goldman now seeks to lay the blame for her failure to advance to a career in psychology on Dr. Goldman who, she claims, refused to remain in Windsor in order to allow her to complete her Ph.D.

[104] Dr. Goldman responded, firstly, that the move to London was discussed with Ms. Weiss Goldman before it occurred and, secondly, that there was no faculty position available for him in the Department of Physics at the University of Windsor when he accepted the position at UWO.

[105] I find, based on my assessment of the evidence and the inferences that I have drawn, that Ms. Weiss Goldman simply quit her doctorate program in psychology for reasons not related to the parties’ move to London, and that she did not suffer an educational or career setback as a result of the move.

[106] In fact, Ms. Weiss Goldman deposed that she obtained her M.A. in Psychology in 1980 “to have something to do and earn an income as a graduate student” at the University of Windsor. She enrolled in the Ph.D. program in Social Psychology “to continue earning income” since the parties’ application for permanent resident status was denied until 1981 and she had no other options prior to that time. Clearly, her heart was never in this area of study. My finding is bolstered by Ms. Weiss Goldman’s own words. She deposed that social psychology “was a field of no interest to me anyways.”

[107] Surely, a decision made by a spouse solely having regard to that spouse’s own opportunities, for reasons having nothing to do with the other spouse, must merit a different consideration than decisions made by a spouse because of, or for the benefit of, the other spouse.

[108] In fact, on abandoning her studies in psychology, Ms. Weiss Goldman learned that she could use her combined B.A. in Psychology and Economics from the University of Windsor to switch to studying Economics, concluding that she would have better chances of employment as an economist than as a social psychologist. Thus, she began to pursue a degree in Economics at UWO.

[109] Having done so, Ms. Weiss Goldman next claims that a basis for her being entitled to compensatory support lies in her having had to sacrifice her doctorate in Economics because Dr. Goldman refused to move back to Windsor in 1986 to allow her to complete the second year of a two-year teaching contract.

[110] According to Ms. Weiss Goldman’s evidence, because Dr. Goldman refused to quit his job in London and move back to Windsor, her efforts to reside there on a temporary basis were futile because she was compelled to:

i. abandon an apartment she had sublet in Windsor because the landlord had “entered the premises without either warning or permission while [she] was away,” an event which, she claimed, without elaboration, meant that she “could not live there any longer;” and

ii. vacate a room that she had rented in a house because the daughter of the owner was said to have engaged in behaviour which deprived Ms. Weiss Goldman of the ability to work or rest.

[111] Ms. Weiss Goldman provided no evidence of ever having discussed with either the landlord, in the case of the apartment, or the homeowner/parent, in the case of the daughter, the issues that allegedly drove her out of those premises.

[112] She also provided no evidence of having made any effort to secure alternate accommodation in Windsor, a city large enough to likely have had a number of alternate rental places available for her to consider.

[113] Instead, she elected to return to London and to drive twice per week between London and Windsor. She found that task to have a deleterious effect on her ability to concentrate on her Ph.D. so it, too, was abandoned. (According to Dr. Goldman, Ms. Weiss Goldman had completed all of the coursework and “progressed significantly with her Ph.D. thesis” in Economics when she withdrew from the Ph.D. program in Economics.)

[114] Noting that, when she was asked during oral questioning on December 10, 2002 about having declined the second year of the teaching position, Ms. Weiss Goldman had also indicated that she turned down the position because of the commute between London and Windsor, Dr. Goldman deposed for this proceeding that, in order to alleviate that difficulty, he had offered to continue renting Ms. Weiss Goldman’s apartment in Windsor, with both parties then relocating to Chatham. Each would have driven the approximate one-hour commute to the city where they were respectively working. That did not occur.

[115] The failure of Ms. Weiss Goldman to complete the second year of the teaching contract in Windsor meant the loss of a pathway to a tenured position at the University of Windsor, according to Dr. Goldman. While she claimed in her evidence for this proceeding to not know how Dr. Goldman could make such an assertion with any certainty, Ms. Weiss Goldman gave similar evidence to that of Dr. Goldman during her oral questioning in 2002. (Questions 185-199)

[116] According to Dr. Goldman, however, there was no future for him in physics if he had returned to the University of Windsor, which ultimately lost the ability to grant doctorate degrees in physics.

[117] Ms. Weiss Goldman ultimately withdrew from the Ph.D. program in Economics at UWO because it does not hire its own students. Again, I find that the failure to complete her doctorate in Economics is unrelated to whether or not Ms. Weiss Goldman would have returned to Windsor, because she was working on that doctorate at Western.

[118] Had she stayed with the program and competed the second year of her teaching contract at Windsor, she may have then been on track for a tenured position there, but that eventuality never arose. She and Dr. Goldman would have had to discuss their careers at that point but because Ms. Weiss Goldman ended her studies at Western and did not persist with her teaching contract at Windsor, that discussion never needed to be held.

[119] Ms. Lloyd submitted that “[t]he law recognizes that spousal support can be awarded in situations where there may not be an economic disadvantage caused during the marriage, but simply by the marriage’s breakdown and the loss of standard of living, past and future. That is the case even in a childless marriage where the spouse was not deprived of any education or retraining that would have improved that spouse’s income-earning potential.” She cited Fisher v. Fisher for this statement.

[120] In that case, however, the Court of Appeal, while not characterizing the basis on which spousal support was ordered, specifically noted, at paragraph 45, that “with the respondent's support and encouragement, the appellant chose an educational program in fine arts, which accorded with her personal interests. There was no evidence that this choice, or any other choice made during the marriage, deprived the appellant of any other education or retraining that she otherwise would have pursued to improve her income-earning potential. Indeed, the appellant is content with her current career, which is a continuation of the career she followed during the marriage. In those circumstances, the marriage did not put her at a disadvantage regarding her career.” (Bolding added)

[121] Lastly, the Court of Appeal held that, “In summary, the appellant suffered no established economic disadvantage arising from the marriage either by the assumption of childcare responsibilities or in any other way that compromised her career or educational aspirations. Any minimal disadvantage cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse. While the appellant's economic assistance at the beginning of the parties' marriage provided an advantage to the respondent, the primary basis for the appellant's support claim is framed as an inability to attain self-sufficiency in light of the marital standard of living.” (Bolding added)

[122] Ms. Lloyd also relied upon the decision of Justice J.A. Keith of the Nova Scotia Supreme Court in Churchill-Keating v. Churchill, [2020] N.S.J. No. 247, in support of her submission that compensatory support is appropriately awarded in a situation where a recipient spouse leaves jobs to “live closer to wherever the payor spouse’s educational and professional opportunities took her, causing the recipient spouse to have career opportunities that depended more on what employment might be available to him in the places where the parties moved as a couple…”

[123] The parties in Churchill-Keating v. Churchill moved several times as a result of the payor spouse’s career choices, and each move meant a setback or change in career goals for the recipient.

[124] On the issue of compensatory support, for which Ms. Lloyd cited this case, Justice Keith found that the payee spouse “fell into a pattern of following [the payor] from place to place as she pursued higher education and the corresponding professional opportunities. His financial role in the marriage became somewhat subordinated to [his wife’s] professional aspirations. As a result, [the payee spouse] experienced a measure of economic disadvantage. This pattern began to emerge relatively early in their relationship.”

[125] In that case, however, the court found the “circumstances” to be “unique,” meaning that the payee spouse’s claim to receive compensatory support were significantly weakened by a number of important mitigating factors. These included:

i. the payee “consistently maintain[ing] an undeniably high degree of independence -- both financially and in terms of his own domestic responsibilities;”

ii. the payee never contributing financially to the payor’s education; and

iii. the payor always being “the main financial manager and primary income earner,” paying the bills and administering the finances.

[126] Unlike Churchill-Keating, where there were several interprovincial moves over the course of the relationship, in this case the parties faced two moves over the course of their marriage – from Israel to Windsor and from Windsor to London. Ms. Weiss Goldman was able to secure employment in Windsor after obtaining the proper visa, and later worked, firstly in London and, latterly, in Windsor despite living in London. She ultimately gave up that job – a job that would have placed her on a tenure path at Windsor – for her own reasons.

[127] Justice Keith, holding that Churchill-Keating was one of the “rare cases” in which “the suggested [SSAG] ranges [of 8.5 years to 17 years for support to be payable] fail to achieve the balance and fairness that must underpin every award of spousal support” ultimately awarded the support payee, after a 16-year marriage that produced two children, with spousal support for 5 years.

[128] Ms. Lloyd also relied upon the British Columbia Court of Appeal decision in Chutter v. Chutter, 2008 BCCA 507, [2008] B.C.J. No. 2398 to support her position that Ms. Weiss Goldman was entitled to compensatory support even though she was relatively independent during the marriage.

[129] That case, in my view, is distinguishable on the issue of compensatory spousal support.

[130] Firstly, there was a child born of the marriage and the trial judge found, as upheld by the Court of Appeal, that the payee spouse interrupted her career as a dental hygienist for a number of years both to care for the child and to participate in the operation of a campground purchased by the parties.

[131] Additionally, the payee spouse testified that she was primarily responsible for caring for the residence while the payor addressed his business interests.

[132] The payee ultimately did return to dental hygiene, but she only had about five years of employment left when the matter came on for trial.

[133] The Court of Appel held that the payee was entitled to compensatory support for the following reasons:

68 After the parties' son was born, the appellant was constrained in her employment by her role as a mother. When the appellant went back to work as a dental hygienist in 1985, the respondent was in agreement only so long as her employment did not interfere with her being able to provide care for their son. As the following evidence demonstrates, the appellant arranged her work schedule so as to accommodate the perceived needs of their son:

... he wanted me there for when our son came home from school, and I had the flexibility with my employer to say I can go back and work three days a week. I won't take lunch. I'll work through lunch, but I need to be home at 3:00.

69 The appellant's ability to further her career as a hygienist, or pursue other careers, was limited by these constraints.

[134] Lastly, Ms. Weiss Goldman claims that what she really wanted to do was to become a high school teacher in Canada. However, at no time over the entire period between 1978, when she received a visa which permitted her to study and work in Canada, and 2001, when the parties separated, did she apply to a Faculty of Education anywhere in Ontario. One such faculty is located at UWO. She offered no reason for not having pursued the career she desired, especially in light of the number of years she pursued higher education.

[135] Dr. Goldman noted this in his evidence, where he deposed that Ms. Weiss Goldman, possessing an honours B.Sc. degree in Physics, could have enrolled, either “in Teacher’s College” or to the University of Windsor for a Master of Education if she wished to qualify as a teacher in Ontario, but she never did.

[136] I find, on the evidence, that Ms. Weiss Goldman’s failure to achieve her ultimate career goal of becoming a teacher in Ontario lies entirely on her, which undermines her claim that she was economically disadvantaged by not being able to complete her educational goals because of the career moves of Dr. Goldman.

Supporting the Family

[137] The evidence further establishes that, while both parties were pursuing their academic and career goals, both were also working regularly.

[138] In 1975-1976, while residing in Israel, Ms. Weiss Goldman was employed full-time as a teacher of high school Mathematics while Dr. Goldman worked as teaching assistant at the same time that he was seeking his M.Sc. in Physics.

[139] Dr. Goldman continued to work after coming to Canada, first as a teaching assistant while working towards his master’s and doctorate degrees, then as a post-graduate fellow after obtaining his doctorate and, ultimately, as a professor in the Department of Physics at UWO.

[140] Ms. Weiss Goldman was unable to be employed in Canada in the period 1976-1977 because of her limited status on immigrating. However, after she returned from Israel in 1977, she was also steadily employed, working as a teaching assistant throughout the periods that she sought her various degrees, first at the University of Windsor, then at Western, and again, as a Lecturer, at the University of Windsor.

[141] On the evidence, it appears that, over the period between 1975 and 1991, the only periods when both parties were not working was in 1976-1977, when Ms. Weiss Goldman had come to Canda and was unable to seek employment, and between 1989 and 1991, when Ms. Weiss Goldman was working on her MBA. I was provided with no evidence about what Ms. Weiss Goldman was doing in the period between 1987 and 1989.

[142] Ms. Weiss Goldman deposed that the income that she earned from work as a teaching assistant and from scholarships constituted “a substantial addition to the family income.” She did not provide specific information as to the amounts that she contributed, but her 1999- and 2000-income tax returns show her to have reported nil income in each year, with substantial losses of income attributed to “Sure Victor.”

[143] While it may be that her income earned as a teaching assistant was not taxed, which I find to be unlikely, and her scholarships went untaxed, which seems more plausible, the evidence suggests that it is highly unlikely that what Ms. Weiss Goldman contributed financially to the marriage matched or exceeded what Dr. Goldman earned.

[144] Additionally, Ms. Weiss Goldman’s contributions came at a time when Dr. Goldman was, apparently, no longer a student, suggesting, in my view, that any such contributions as may have been made would be differently characterized than as “support for the family while the other party obtained or upgraded their education.”

[145] Lastly, after obtaining her MBA in 1991, the evidence shows that Ms. Weiss Goldman was either unemployed (1991-1996) or operating a money-losing business (1998-2001). As such, she could not and did not claim that she was supporting the family unit during these periods.

Advising Dr. Goldman

[146] Ms. Weiss Goldman further claims that what she contributed “during [Dr. Goldman’s] graduate studies, and the first few years in his position at UWO” – a period covering the years 1977-1981 − were a willingness to discuss his research and “suggestions in his thesis, research, grant applications and other aspects of his career.”

[147] With due respect to Ms. Weiss Goldman, I must question the value of the advice that she would have offered to Dr. Goldman about his “thesis [and] research” in physics when she possessed just a bachelor’s degree in that discipline. She provided no examples of such advice.

[148] Similarly, she also did not provide any specific examples of how Dr. Goldman benefited or gained by the “suggestions” she made to him about “grant applications and other aspects of his career,” citing only her “belief” that she had been “an active contributor to his success.”

[149] Dr. Goldman denied that any of his discussions with Ms. Weiss Goldman during the marriage were instrumental in advancing his career. As Mr. Macri put it, the discussions appear to have been no different than the discussions that occur on a daily basis in most marriages about the day-to-day events in the lives of a couple.

[150] Additionally, even if her evidence were to be accepted as a foundation for an award of compensatory spousal support, one would have to question the value of such contributions since, by her own evidence, Ms. Weiss Goldman viewed Dr. Goldman’s salary as a professor at Western to be “unusually low.” In 2001, his employment income amounted to $89,897.00.

[151] According to Dr. Goldman, he took no sabbaticals during the marriage because Ms. Weiss Goldman would not support him doing so. (Ms. Weiss Goldman denies this claim, citing Dr. Goldman’s c.v., which noted that, for a period in 1985, Dr. Goldman was a “Visting Scientist” at Harvard.) He claimed that she also refused to travel to the location of sponsoring universities or agreed to him doing so even if he were to return for periodic visits, effectively frustrating his career development.

[152] Some of Ms. Weiss Goldman’s claims about the support she gave to Dr. Goldman also sounded petty and vindictive.

[153] For example, she deposed that he called her from work “on almost an hourly basis, usually to tell me his latest brilliant feat,” and that, if Dr. Goldman travelled to a conference or to another university as a visiting professor, he called her “several times a day.” She did not say why, or how her answering of his calls constituted actions meritorious of compensatory spousal support.

[154] She also alleged that Dr. Goldman “has an enormous need to be the centre of attention and admired as “the best” in any circumstances and social setting.” She further claimed that Dr. Goldman “ensured that there were public displays of affection when around others.”

[155] Dr. Goldman denied her claims.

[156] I fail to see how these particular allegations assist Ms. Weiss Goldman’s claim to compensatory support. Even if her assertions are accurate, I find that supporting a vain spouse in social settings should not be a foundation upon which to establish the basis for an award of compensatory spousal support.

Conclusion – Compensatory Support

[157] At paragraph 125 of his decision in Christmann v. Christmann, [2019] O.J. No. 271, a case relied upon by Ms. Weiss Goldman, Justice D.A. Broad wrote about “a useful analytical categorization of the types of compensatory support” that Alfred A. Mamo articulated in his Annual Review of Family Law, 2007 (Toronto: Thomson Carswell, 2007), at p. 331, “quoted by Justice G.A. Campbell in the case of Beneteau v. Young, [2009] O.J. No. 3244 (Ont. S.C.J.), at para. 194, as follows:

i. non-specific compensatory support (where a spouse's ability to achieve self-sufficiency was comprised by career/job dislocation for the family); Walsh v. Walsh, 2006 Carswell NB 582 (Q.B.);

ii. specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage) Spurgeon v. Spurgeon (2001), 2001 38738 (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);

iii. specific calculable advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 1992 7715 (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.).”

[158] I find that Ms. Weiss Goldman did not point to “a specific calculable overriding loss resulting from the marriage, or the roles adopted in marriage” nor did she demonstrate that she conferred “a substantial career enhancement opportunity on” Dr. Goldman.

[159] Walsh v. Walsh was a case where the recipient spouse spent 22 years of a 29-year marriage caring for the parties’ children and, as a result, never was able to achieve her career potential.

[160] Whether Ms. Weiss Goldman has achieved economic self-sufficiency will be discussed later, but I have been provided with no evidence that any failure on her part to have achieved it, as she claims, resulted from her career pursuits or job dislocation for the family.

[161] Instead, I adopt the finding of the Court of Appeal in Fisher v. Fisher and hold that Ms. Weiss Goldman suffered no established economic disadvantage arising from the marriage either by the assumption of childcare responsibilities or in any other way that compromised her career or educational aspirations. The failure to achieve her desired educational goals were the result of choices that Ms. Weiss Goldman made independent of her husband.

[162] I further find that “any minimal disadvantage” suffered by Ms. Weiss Goldman – or the advantage gained by Dr. Goldman from the economic assistance Ms. Weiss Goldman rendered at the beginning of the parties’ marriage – “cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse.”

[163] To the extent that the original support award may have contained a compensatory element in relation to Ms. Weiss Goldman’s relocations from Israel to Canada and from Windsor to London, I further find that those have been compensated for through the spousal support paid by Dr. Goldman over the years between 2001 and the date he commenced this review.

[164] I agree with the following comments made by Justice J. W. Quinn in Keller v. Black, 2000 22626 (ON SC), [2000] O.J. No. 79:

24 In my view, to justify an award of compensatory spousal support, it is not enough that one spouse merely suffers an economic deprivation or that the other spouse merely experiences a financial gain because of the roles adopted in the marriage. The deprivation or the financial gain must be significant. The court should not engage in the making of fine calculations of net gains and losses. Marriage, and the decisions made during it, are too complex to permit a painstaking analysis of such things. Furthermore, it is trite of me to say that the wife must establish her entitlement to an award of compensatory support, and she must do so on a balance of probabilities.

[165] As a result, I find that the spousal support award made by Justice Campbell in favour of Ms. Weiss Goldman on April 11, 2003 did not include a meaningful compensatory element if it contained one at all.

[166] Consequently, I also find that Ms. Weiss Goldman, who bears the burden of establishing on a balance of probabilities that she is entitled to an award of compensatory spousal support, has failed in her task.

Non-Compensatory Support

[167] Justice Chappel touched on the basis for non-compensatory support at paragraph 59 of her decision in Thompson v. Thompson, writing:

iii. Non-Compensatory Support

59 Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse's economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. …

[168] In Bracklow, Justice McLachlin, as she then was, wrote:

“[E]conomic hardship . . . arising from the breakdown of the Marriage” is capable of encompassing…the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. (at para. 41)

[169] At paragraph 48 in Thompson, Justice Chappel wrote that the support objectives identified in s. 15.2(6)(c) and (d) of the Divorce Act, which focus on relieving any economic hardship of the spouses arising from the breakdown of the marriage and, in so far as is practicable, promoting the economic self-sufficiency of each spouse within a reasonable period of time, primarily relate to non-compensatory support.

[170] Ms. Lloyd addressed this issue in her factum, writing, at paragraph 28:

A spousal support order also relieves any economic hardship arising from the breakdown of the marriage. It recognizes the “interdependence or merger of interests” that developed over the marriage, offering a remedy that is reasonable and equitable. Entitlement to spousal support on a non-compensatory basis arises where there is need and ability to pay.

[171] Mr. Macri did not address this issue directly in his factum. Instead, he focused on whether support should continue as a result of the review.

[172] Given that this review was authorized to take place at the earlier of January 1, 2005 or upon Ms. Weiss Goldman obtaining employment, it seems to me that, consistent with my conclusion that Ms. Weiss Goldman has not established an entitlement to compensatory support, the original spousal support order was non-compensatory in nature, having been based on Ms. Weiss Goldman’s needs at the time. Clearly, it was not based on any contractual agreement between the parties.

[173] It is not difficult to draw the conclusion, based on the parties’ financial circumstances at the time of their separation in 2001, that Ms. Weiss Goldman needed support because of their separation. As a result, any support that was ordered would undoubtedly have been founded on non-compensatory principles.

[174] In paragraph 47 of Thompson, writing about the court’s obligation under s. 15.2(4) of the Divorce Act to consider "the condition, means, needs and other circumstances of each spouse" when faced with a claim for spousal support, Justice Chappel wrote:

47 The "condition" of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse's "means" encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. The assessment of the "needs" of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, "self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage." In considering the extent of a spouse's need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.

[175] I was not provided with sufficient information to draw any conclusions based on evidence about the “condition” of the parties at the time of their separation, other than their ages − both parties being in their early fifties - the fact that they had no dependents, and their “stations in life” at that time − Dr. Goldman being a doctorate level physicist and Ms. Weiss Goldman operating a business which was losing money annually.

[176] Similarly, their “means” at that time were not fully disclosed, but I was told that Dr. Goldman was earning an annual salary of approximately $89,900 at the time of separation.

[177] I was also informed that the parties had a matrimonial home, but I received no information about the disposition of the proceeds of its sale.

[178] Given that Ms. Weiss Goldman was operating a business that was earning no income, was required to find accommodation given the sale of the matrimonial home and appears to have not generated any real cash reserves during her years as a student, it is highly unlikely that she had any capital assets to speak of at that time which would have generated income for her.

[179] As Justice M. Blais wrote in Blanchet v. Arsenault, [2021] N.B.J. No. 187 at para. 87, “[w]hile there is no obligation to equalize incomes between spouses after separation, what the Court must strive to achieve is a fair redistribution of the higher income where circumstances warrant.”

[180] What is clear to me is that, based on Dr. Goldman’s annual salary of approximately $89,900, the parties agreed that it was appropriate for him to pay monthly spousal support of $3,000.00 to Ms. Weiss Goldman, an amount representing approximately 40% of his date of separation pre-tax income. The evidence suggests that Ms. Weiss Goldman was earning no income to speak of at that point.

[181] This strongly suggests to me, and I find, that, on the breakdown of the marriage, Ms. Weiss Goldman was in serious need of spousal support.

[182] Based on the foregoing, I also find that the support agreed upon by the parties in 2003 was to be paid based on Ms. Weiss Goldman’s needs at the time, and, accordingly, was non-compensatory in nature.

[183] I also find support for this finding in the uncontradicted evidence of Dr. Goldman that the parties agreed to include a review provision in the order of Justice Campbell because they expected that Ms. Weiss Goldman “would be gainfully employed within” two years of the date of the order, “especially considering her high level of education and intelligence.”

[184] In other words, in 2003 the parties agreed that support was to be reviewed when Ms. Weiss Goldman’s need for it would presumably diminish or disappear on finding employment.

Current Circumstances

[185] Dr. Goldman brought this review, claiming that Ms. Weiss Goldman has received support from him for a period of sufficient duration such that his obligation to continue paying support should be found to have ended.

[186] His position is that Ms. Weiss Goldman has either attained or ought to have attained economic self-sufficiency by this time in her life.

[187] Justice Chappel wrote about economic self-sufficiency in Thompson as follows:

49 …With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse's obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S. It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies "in so far as practicable." The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.

50 In considering the objective of self-sufficiency, the court must also recognize that this concept is a relative one which must take into consideration the parties' standard of living during the marriage. The Ontario Court of Appeal emphasized in Fisher v. Fisher and Allaire v. Allaire that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse's ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage…

51 The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L'Heureux-Dubé, J. made this point in Moge v. Moge, where she stated that "the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution."

[188] Mr. Macri further submitted on behalf of Dr. Goldman that, if support is to continue, an income higher than that being reported by Ms. Weiss Goldman should be imputed to her, which could have the corollary effect of reducing the amount of support that Dr. Goldman needs to pay her on a go-forward basis, depending on the level of income attributed to him as the basis for support payments.

[189] In her response, Ms. Weiss Goldman submitted that, despite her best efforts, she has been unable to achieve economic self-sufficiency or to secure employment which would generate a greater income, that it would be inappropriate to impute an income to her, and that she is, in fact, entitled to greater support because she is entitled to share in Dr. Goldman’s post-separation increases in income.

Does Ms. Weiss Goldman continue to suffer economic hardship arising from the breakdown of the marriage? Has She Achieved Economic Self Sufficiency?

[190] The parties differ on these issues.

[191] Ms. Weiss Goldman claims that, despite the fact that the parties have been separated for 21 years, she continues to suffer economic hardship as a result of the breakdown of their marriage. She points to her inability to secure permanent, full-time employment since the parties separated, despite efforts to do so, attributing that inability, partly, to the emotional repercussions she claims to have suffered following the end of the marriage and partly to the fact that she spent her married years pursuing a career in academia, which did not prepare her for employment in a competitive, non-academic work environment.

[192] According to Ms. Weiss Goldman, her emotional difficulties have their roots in her failed educational pursuits. She deposed that, as she continued to encounter these difficulties during the marriage, she became “more and more dependent” on Dr. Goldman, a turn of events that eventually led to her becoming very insecure and lacking in self-esteem.

[193] She claims that she tried, unsuccessfully, to obtain employment in the public and private sectors, as well as the academic world, in the years between 1991 and 1996, after obtaining her MBA in 1991. (Dr. Goldman disputes this.)

[194] Even the obtaining of her MBA in 1991 did not lift Ms. Weiss Goldman’s spirits. She deposed that she “felt like a failure” because she had had to give up an academic career. She regarded her MBA as “a degree that meant nothing to me other than a chance of employment in positions that could not make me happy.”

[195] Eventually, however, she founded her dog training business, called “Sure Victor,” in 1996. It never turned a profit and was eventually closed in 2008.

[196] Ms. Weiss Goldman claimed that, following the parties’ separation, she went through a period of extreme stress, lack of confidence, and confusion. She viewed herself as someone who was in their fifties with a “minimal employment history and an eclectic educational background, including two incomplete Ph.Ds.”

[197] Ms. Lloyd submits that “[s]elf-sufficiency is currently impractical despite the Respondent’s education.”

[198] Ms. Weiss Goldman is currently 72 years of age. She continues to work in the tax-preparation business, albeit her work appears to be concentrated to the period between the months of January and April annually. While she claims that she works during the balance of the year on tax-related matters, she also acknowledged that there is far less work in that area during the final eight months each year than there is in the initial four months.

[199] Dr. Goldman, on the other hand, takes the position that, if one were to begin with the amount that he has paid to Ms. Weiss Goldman for spousal support since 2001, and add to that a reasonably imputed income that she should be earning by this point in her life, Ms. Weiss Goldman has attained economic self-sufficiency and is no longer entitled to spousal support.

[200] Mr. Macri submits that Ms. Weiss Goldman “is not entitled to any further spousal support since her income, or imputed income, equals” that of Dr. Goldman “at the time of separation,” meaning that Ms. Weiss Goldman “has now achieved self-sufficiency.” As I have noted elsewhere, when the parties separated Dr. Goldman was earning approximately $89,900.00 per annum at UWO.

[201] Mr. Macri further asserted that, because of a decision made in 2021, Ms. Weiss Goldman began that year to receive income of approximately $17,700 from her retirement funds that she had not theretofore received. This increases her non-support income.

[202] According to Mr. Macri, if Dr. Goldman’s spousal support is deducted, and Ms. Weiss Goldman’s pension and CPP payments are added, she is still earning an income of at least $73,000 per year.

[203] He further asserted that Ms. Weiss Goldman’s unmortgaged residence is worth $461,000.00 and that she should be required to access her equity to assist her in maintaining self-sufficiency.

[204] He submitted, paraphrasing an argument made to the Court of Appeal in Choquette v. Choquette, [2019] O.J. No. 2004 at para. 28, that “any current economic hardship [currently claimed by Ms. Weiss Goldman] is simply the result of [her] own choices.”

[205] In response, Ms. Lloyd submitted that the proper approach to determining self-sufficiency is that which is set out by the Ontario Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, in which the court wrote:

[52] Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is "practicable" to do so and where the objective can be realized "within a reasonable period of time". [page 256]

[53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

[54] Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

[55] In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties' merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.

[206] A similar approach to self-sufficiency was taken by the Ontario Court of Appeal in the later case of Allaire v. Allaire, 2003 26263 (ON CA), [2003] O.J. No. 1069, where the court wrote “self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties.”

[207] More recently, the Court of Appeal wrote at paragraph 17 of Choquette:

17 … Section 17(7) of the Divorce Act does not create a requirement that a former spouse become self-sufficient. It merely directs that a support order should, among other objectives, encourage a former spouse to become self-sufficient, and only "in so far as practicable."

[208] On those bases, Ms. Lloyd submits that Ms. Weiss Goldman has not achieved, and cannot achieve, economic self sufficiency.

Analysis

[209] According to her Notices of Assessment for 2018, 2019 and 2020, Ms. Weiss Goldman had Line 15000 income of $35,121.76 in 2018, $43,856.00 in 2019 and $53,667.00 in 2020, respectively. Those amounts included the spousal support paid by Dr. Goldman.

[210] Ms. Weiss Goldman also receives Old Age Security and Canada Pension Plan payments.

[211] According to her Financial Statement sworn January 11, 2022, Ms. Weiss Goldman owned pension investments (LIFs, RIF, TFSA) with a collective, net-of-tax, value equalling $487,131.52.

[212] That Financial Statement also indicated that, in 2021, her gross income was $90,823.56, consisting of Old Age Security and Canada Pension Plan payments totalling approximately $14,600.00, spousal support of $48,485.58, and pension income totaling $29,796.30, with her business losses amounting to $2,062.51. As has been noted, Ms. Weiss Goldman began to receive payments from her pension funds in 2021. Not including spousal support, Ms. Weiss Goldman’s 2021 gross income amounted to $42,337.98.

[213] At the time of separation, Dr. Goldman was earning approximately $89,900.00 per annum at UWO. Thus, Dr. Goldman’s support still played a pivotal role in Ms. Weiss Goldman’s income in 2021, although a lesser one than before, with her pensions now being paid.

[214] A comparison of the net-of-tax capital value of Ms. Weiss Goldman’s pension assets set out in her Financial Statements dated June 19, 2020 and January 11, 2022 reveals that the capital value of the pension funds increased over the 18 months between the statements by $107,252.05, which amounts to an increase in the after-tax value of the pensions, over that period, of 28.23%. Ms. Weiss Goldman attributed the increase to “taking great risks and aggressive investing.”

[215] If one were to have regard to "self-sufficiency” as “an absolute concept,” rather than a “relative” one, it is clear that, prior to 2021, when her pensions began to form part of her income, Ms. Weiss Goldman was not economically self-sufficient without spousal support, which she clearly required in order to get by financially.

[216] In 2021, her income improved with the addition of her pension payments, so she came closer to economic self-sufficiency than she had been previously.

[217] However, a support recipient’s means cannot be examined in isolation. Their “needs” also must be examined.

[218] According to her Financial Statement sworn June 19, 2020, Ms. Weiss Goldman had monthly expenses of $7,612.23, which equated to annual expenses of $91,346.76. Included in her monthly expenses were debt payments of $1,000.00, undefined expenses of $1,076.45, and dental expenses of $1,509.95. (I assume this amount to have been an error. It was unexplained and, by January 11, 2022, had dropped to $42.84 per month.)

[219] She had a home equity line of credit registered against her residence, and credit card debt on two cards that, at the date of the Financial Statement, amounted to $8,892.42, which was said to be “paid off monthly.”

[220] There is a disconnect between the amounts noted as monthly payments in Ms. Weiss Goldman’s 2020 Financial Statement, and the amounts that she indicated that she paid monthly on her credit cards. Ms. Weiss Goldman’s explanation is that her sister was responsible for many of the card expenses.

[221] According to her Financial Statement sworn January 11, 2022, Ms. Weiss Goldman’s monthly expenses had increased from June 2020 to $8,064.26, which equated to annual expenses of $96,771.12. Her monthly debt payment had increased by only $112.24 to $1,112.24. The undefined debt payment had disappeared, and her claim for dental expenses was reduced to $42.84. Her monthly payment on legal fees had increased by $2,609.85, from $926.86 in 2020 to $3,536.71 in 2022.

[222] Her two credit cards had debt totalling approximately $15,200.00, which was an increase over that shown in 2020, but the amount that she pays off monthly is now said to be varied. I understand that is because her sister no longer has access to, or uses, either credit card.

[223] In 2021, Ms. Weiss Goldman’s debt payment and legal fees accounted for 57% of her monthly expenses, with her legal fees alone accounting for 43.8% of her monthly expenses. The resolution of this litigation should, hopefully resolve that issue. In fact, removing her monthly payment of legal fees will reduce her monthly payments to $4,527.55. On an annual basis, monthly payments of that amount equal $54,330.60. As I have already noted, her non-support annual income in 2021 amounted to $42,337.98, leaving her with an annual non-support income shortfall of $11,992.62, or just under $1,000.00 per month.

[224] It is obvious that Ms. Weiss Goldman’s financial position improved greatly between June 2020 and January 2022. The main reasons were that she had a smaller net loss from her business activities in 2021 than she did in 2019, and she is now receiving pension income.

[225] Using Ms. Weiss Goldman’s monthly expenses as a barometer of her “needs,” it is clear that she continued in both 2020 and 2021 to be unable to match her means with her needs.

[226] Consequently, without regard to other factors which are to be discussed, I find that, based only on her own means and needs as revealed in her financial documents, Ms. Weiss Goldman continues to be in need of some level of support, but less than before.

[227] Given that Ms. Weiss Goldman continues to be in need of support, I also find that she has not yet achieved economic self sufficiency, having regard only to her reported income. She has, however, moved much closer to it now that she is drawing on her pension.

[228] It is equally clear, however, that, with her continuous string of business income losses, Ms. Weiss Goldman has not been seriously attempting to become economically self-sufficient.

To What Level of Support is Ms. Weiss Goldman Entitled?

[229] In order to answer this question, I must first consider some other issues raised by the parties. They are:

i. Whether Ms. Weiss Goldman should have additional income imputed to her (raised by Dr. Goldman) based upon:

1. her alleged failure to disclose income;

2. her unreasonable deduction of expenses from income; or

3. the general principles pertaining to imputation of income as applied to the facts.

ii. Whether Ms. Weiss Goldman should share in Dr. Goldman’s post-separation income increases (raised by Ms. Weiss Goldman)

Should a Greater Income be Imputed to Ms. Weiss Goldman?

[230] Dr. Goldman’s submissions were directed mainly to this issue.

[231] It is Dr. Goldman’s position that Ms. Weiss Goldman, after having worked in the tax preparation business since 2004, should have imputed to her an income higher than the nil amount that she reports each year.

[232] Mr. Macri began his analysis by referring to s. 19 of the Child Support Guidelines, which addresses the imputation of income. The principles set out there also apply equally to spousal support claims. Section 19 provides as follows:

Imputing income

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

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

b) the spouse is exempt from paying federal or provincial income tax;

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

e) the spouse's property is not reasonably utilized to generate income;

f) the spouse has failed to provide income information when under a legal obligation to do so;

g) the spouse unreasonably deducts expenses from income;

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Reasonableness of Expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[233] Mr. Macri’s submissions were concentrated on subsections (a) – intentional under-employment, (f) – failing to provide income information, and (g) – unreasonably deducting expenses from income, and s. 19(2). The mini focused hearing of March 2, 2022 related to Ms. Weiss Goldman’s deductions from her business income, which will be addressed, infra.

[234] Justice D. Chappel addressed imputation of income, generally, in Kinsella v. Mills, 2020 ONSC 4785, writing:

165 In the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse, since one of the objectives of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable….

166 The onus is on the party requesting the court to impute income pursuant to section 19(1) to establish an evidentiary basis for such a finding…In practice, this principle poses significant challenges, since the information required to support an imputation of income argument is invariably within the knowledge, power and control of the party whose income is in question or third parties, rather than the party seeking to impute income. …[W]hen considering an imputation of income argument, the court must be mindful of the fundamental principle that every party in a support case must disclose and adduce the evidence required to allow the other party and the court to undertake a proper assessment of their income for support purposes…. [O]nce such concerns are raised, the party whose income is in question …has a positive obligation to respond to reasonable inquiries by disclosing information and evidence in support of their position respecting their income, including why income should not be imputed to them. …If the party whose income is in question does not disclose information in response to reasonable concerns and questions raised by the other party that could support an imputation of income argument, the trial judge may draw an adverse inference against them …It may also impute income pursuant to section 19(1)(f), on the basis of the party's failure to provide income information when under a legal obligation to do so. Furthermore, once the party seeking to impute income presents evidence at trial that supports their imputation of income argument, the onus shifts to the other party to satisfy the court as to their income level and that income should not be imputed…

167 … Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. In carrying out the exercise, the court must take into consideration the purposes of the Guidelines and must arrive at a figure that is reasonable based on the evidence before the court….The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete…The overall goal is to determine a figure that fairly reflects the parties' financial circumstances…

168 Where income is imputed to a party, it is important for the court to consider whether the amount imputed over and above the party's section 16 income should be grossed up to a likely pre-tax amount to take into account the fact that it was not subjected to tax… For instance, it is appropriate to do so where …expenses deducted from income are added back into income on the basis that they were unreasonable….…[edited; citations omitted]

i) Has Ms. Weiss Goldman Failed to Disclose Income?

[235] Justice Chappel addressed this issue in Kinsella v. Mills as follows:

3. Section 19(1)(f): Failure to Disclose Income Information

175 Income can be imputed pursuant to section 19(1)(f) of the Guidelines where a spouse fails to comply with financial disclosure obligations under the Guidelines, the Family Law Rules or court orders, or fails to respond appropriately to reasonable requests respecting additional income disclosure. The court may also impute income pursuant to this section…:

2. Where the evidence respecting their income is not credible for any other reason… This includes situations where the party's deposits into their personal or business accounts reflect that their income was greater than reported in their income tax returns…

3. When their lifestyle is such that a reasonable inference can be drawn that they have undisclosed income…[edited; citations omitted]

Dr. Goldman’s Submissions

[236] In his factum, Dr. Goldman simply asserted that Ms. Weiss Goldman had “not provided full and frank disclosure of her income.”

[237] In his affidavit, he deposed that Ms. Weiss Goldman:

i. responded to a request for financial information not in the form of a requested affidavit but by a letter from her counsel;

ii. refused to provide disclosure of her business expenses;

iii. only provided detailed records of her tax filings for one year (2019);

iv. initially “provided a heavily redacted copy of the BMO credit card statements with all the transactions blanked,” although she did ultimately provide “the full record of the BMO credit card account;” and

v. received substantial monthly payments from three undeclared bank accounts, which Ms. Weiss Goldman explained belonged to her sister, the payments being provided by her sister partly in repayment of purchases made by the sister on Ms. Weiss Goldman’s credit cards and partly to assist her with her expenses.

[238] Mr. Macri submitted that the monies received by Ms. Weiss Goldman from her sister, grossed up for tax purposes, amounted to approximately $45,000 per annum. In his submission, that money should be counted as income attributable to Ms. Weiss Goldman when determining her income for spousal support purposes.

[239] Dr. Goldman noted that the payments made to Ms. Weiss Goldman by her sister ceased approximately four months after he commenced his Motion to Change spousal support. He clearly saw this as evidence that the funds being advanced surreptitiously to Ms. Weiss Goldman were intended to assist her financially and, for that reason, ought to be considered as income.

[240] Dr. Goldman further provided several examples of what he viewed as questionable financial transactions revealed by the records he received from Ms. Weiss Goldman, which, he concluded, had to mean that Ms. Weiss Goldman was earning a much greater income than she was claiming.

[241] In response to an interim order that I made for further financial disclosure by Ms. Weiss Goldman in advance of the mini focused hearing of March 2, 2022, she produced approximately 3,000 pages of financial records relating to her business income and expense deductions over several years.

[242] Mr. Macri obviously pored over them. In his written submissions following the mini focused hearing, he listed a number of concerns about what the information disclosed which had not theretofore been disclosed, including that Ms. Weiss Goldman:

i. by filing in excess of 3,000 pages of documents, was evidencing her prior failure to have complied with her disclosure obligations;

ii. improperly deducted expenses from income, which will be discussed in the next section;

iii. had a large discrepancy between her cash flow and her claimed income which could not be reasonably explained other than by her having a higher income than she was reporting;

iv. used repeated invoice numbers when billing clients, and missed other invoice numbers, thereby rendering a proper audit of her business impossible; and

v. between 2017 and 2020, spent 2 to 3 times her income on expenses, which suggested that, if the expenses were legitimate, Ms. Weiss Goldman ought to have either sought to expand her client base or undertaken a different activity to fund her lifestyle.

Ms. Weiss Goldman’s Submissions

[243] In her factum, Ms. Weiss Goldman focused her response on the monies that she received from her sister and whether those funds should be considered income for spousal support purposes.

[244] She deposed that a bank account referred to by Dr. Goldman about which she claimed no knowledge is likely located in Israel and owned by her sister.

[245] According to Ms. Weiss Goldman, the payments from her sister began in 2009, long after the parties had separated. At that time, Ms. Weiss-Goldman’s sister started to help Ms. Weiss Goldman financially by “giving” her, initially, $800.00 per month, then $1,000.00 per month, and for a period, $2,000.00 per month. (Dr. Goldman replied that Ms. Weiss Goldman’s sister’s payments of substantial portions of Ms. Weiss Goldman’s credit card debt amounted to “an actual contribution” to her lifestyle and should be considered income.)

[246] In March 2020, Ms. Weiss Goldman’s sister suffered a severe stroke and was hospitalized for approximately seven weeks.

[247] Ms. Weiss Goldman relied upon the following decisions to support her position that the funds received from her sister ought not to be considered as income for spousal support purposes: Bak v. Dobell (1987), 2007 ONCA 304, 86 O.R. (3d) 196 (C.A.); Probst v. Shah, [2020] O.J. No. 1111 (S.C.J.); and Horowitz v. Nightingale (2015), 2015 ONSC 190, 123 O.R. 3d 772 (S.C.J.)

[248] In Bak v. Dobell, the Respondent father suffered from severe personality disorders said to have been chronic and severe, rendering him unemployable. His father had made efforts to assist him, funding career training and providing him with an amount covering his day-to-day expenses. He also bought a condominium for the use of the Respondent, registering it in his name. The Appellant support payee had obtained an original consent support order which the Respondent had been unable to fund because he could not maintain employment. The Appellant brought an application to increase child support by imputing income to the support payor based upon, inter alia, the gifts he received from his father.

[249] In responding to the submission of the payee Appellant that the monies advanced by the payor’s father should be considered income, Justice Lang, writing on behalf of the Court of Appeal, noted, at paragraph 62, that gifts are not listed as one of the circumstances outlined under s. 19(1) of the Child Support Guidelines for which income could be imputed. Justice Lang continued, “[s]ince the legislature did not include gifts within the ambit of imputed income, it can be presumed, in the normal course, that the legislature did not intend the receipt of gifts to be an "appropriate circumstance" in which to impute income. For this reason, usual gifts, such as those given to mark a special occasion, are not included as income.”

[250] Justice Lang then considered whether gifts could ever be included within the ambit of imputed income and wrote:

[74] Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance under s.19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an "appropriate circumstance" in which to impute income.

[75] In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors. Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor's entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts.

[251] In Horowitz v. Nightingale, the husband had received an annual gift of $50,000 from his parents for at least eight years, which formed part of the family’s income and contributed to the lifestyle that the parties had come to enjoy. There was other evidence, as well, that the husband’s parents provided other monies to the parties during the marriage. Justice Douglas, ruling on an interim motion for spousal and child support, held that the annual payments of $50,000 should be imputed to the father for spousal support purposes.

[252] In Probst v. Shah, Justice Breithaupt Smith was faced with a situation where the support payee was receiving approximately $2,800 per month from her brother, and a further sum of approximately $52,000 from a third party, inclusive of $1,000 per month said to be the repayment of the debt owed to the support payee by the third party. No documentation for the loan was produced.

[253] Justice Breithaupt Smith distinguished Probst v. Shah on the basis that the payments by the support recipient’s brother and the third party “arose as a result of Ms. Shah’s inability to support herself post-separation.” Justice Breithaupt Smith therefore concluded that the payments had not supported the lifestyle of the parties prior to separation, could not be expected to continue once the financial issues in the litigation were resolved and were for the limited purpose of assisting the recipient through a period of financial instability. Accordingly, she declined to include the amount received by the support recipient as income.

[254] In responding to the submissions made on behalf of Dr. Goldman in relation to the mini focused hearing, counsel for Ms. Weiss Goldman took issue with the “several unsubstantiated allegations” made against her client, and the evidence ignored by counsel for Dr. Goldman about her client’s financial disclosure and her tax return preparation business.

[255] Counsel for Ms. Weiss Goldman submitted that her client had not failed to disclose financial information but had been, in contrast, “forthright in disclosing her financial affairs.” She points out that the additional 3,000 pages of productions had been requested by Dr. Goldman’s former counsel and were being assembled when Dr. Goldman changed counsel, leading Ms. Weiss Goldman to hold back on their production until there was clarity as to whether the new counsel required the documents. Once I ordered the productions, according to counsel for Ms. Weiss Goldman, “she promptly complied.”

[256] She also took issue with the assertion that Ms. Weiss Goldman only produced her tax return for one year, noting that complete tax returns for the years 2016 through 2020 had been produced earlier, including capital cost allowance statements in or about April 2021.

[257] On that point, I do note that, in her affidavit sworn March 1, 2022 for the mini focused hearing, Ms. Weiss Goldman had produced her complete tax returns for the years 2016 through 2018, while in her financial statement sworn January 11, 2022 she had produced her notices of assessment for 2018, 2019 and 2020, and had appended to her Response to Motion to Change dated June 25, 2020 a number of tax documents including her 2017, 2018 and 2019 tax return summaries and notices of assessment, and her 2019 income tax and benefit return.

[258] Counsel further addressed the submission that there were improper deductions from income, which will be discussed at the next section.

[259] Lastly, she cited a number of alleged discrepancies in the submissions of counsel for Dr. Goldman, or misinterpretations of financial information produced by Ms. Weiss Goldman, concluding that, “at best, the Applicant has misunderstood the Respondent’s evidence in this proceeding [while] at worst, the Applicant is choosing to ignore the evidence already put forth by the Respondent to support a narrative that does not exist.

[260] Counsel submitted that Ms. Weiss Goldman “has complied with her disclosure obligations and has been forthright about her income.”

Analysis

[261] As I have already noted, this entire exercise was supposedly a focused hearing. Instead, it turned into the production of voluminous documents.

[262] I acknowledge that my order for the production of a number of documents for use on the mini focused hearing came late in the proceeding. Ms. Weiss Goldman and her counsel are to be commended for having assembled the documents and placed them before the court in short order.

[263] The effort of counsel for Dr. Goldman to ferret out discrepancies or what he believes to have been questionable entries in the voluminous productions is also noted.

[264] He immersed himself in the many pages produced to determine whether there was information that ought to have been produced earlier, or further information that needed to be produced.

[265] Two things became clear to me after the end of the proceeding, when I was going through some of the documents that were produced for the mini focused hearing by Ms. Weiss Goldman. First, Ms. Weiss Goldman produced substantial financial information and, second, Mr. Macri had utilized fully his opportunity to review and make submissions about the importance and meaning of such financial information.

[266] As a result, I am satisfied that Ms. Weiss Goldman met her disclosure obligations in this case and that it would not be appropriate to impute income to her on the basis that she failed to do so.

[267] With respect to the specific claim made by Dr. Goldman that the monies being advanced to Ms. Weiss Goldman by her sister following the parties’ separation should be imputed to her as income, I accept the explanation of Ms. Weiss Goldman that her sister’s financial assistance began long after the parties separated. Clearly, no money was advanced by Ms. Weiss Goldman’s sister to the parties during the marriage and they did not come to rely upon it to finance a lifestyle.

[268] In that regard, I agree with Justice Breithaupt Smith and distinguish this case from Horowitz v. Nightingale. Instead, having considered the circumstances of the funds advanced by Ms. Weiss Goldman’s sister to her in light of those listed by the Court of Appeal in Bak v. Dobell, I find that the circumstances surrounding these particular gifts are not so unusual that they constitute an "appropriate circumstance" in which to impute income to Ms. Weiss Goldman based on those gifts.

[269] I was presented with no evidence that Ms. Weiss Goldman is living a lifestyle far beyond her means, certainly not to the degree that Justice Chappell must have been contemplating when she wrote that income can be imputed to a person when “their lifestyle is such that a reasonable inference can be drawn that they have undisclosed income.”

[270] In my view, it is as likely that Ms. Weiss Goldman’s sister provided her with funds to sustain her lifestyle because Ms. Weiss Goldman was living beyond her means as it was that her sister was providing her with funds to maintain a basic lifestyle.

[271] Accordingly, no income will be imputed to Ms. Weiss Goldman based upon a failure to produce financial information or based upon monies advanced to her by her sister.

ii) Has Ms. Weiss Goldman Unreasonably Deducted Expenses from Income?

[272] Justice Chappel addressed the issue of unreasonable deductions of expenses from income in Kinsella v. Mills, writing:

4. Section 19(1)(g): Unreasonable Deduction of Expenses From Income

i. General Principles

177 The court may impute income to a party pursuant to section 19(1)(g) of the Guidelines on the basis that they unreasonably deducted expenses from their income. Income may be imputed on this basis even if the deduction is considered acceptable and proper for income tax purposes. Section 19(2) specifically provides that the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada), R.S.C. 1985, c. 1 (5th Supp.).

178 As with all imputation of income claims, a party who requests that income be imputed pursuant to section 19(1)(g) has the onus of satisfying the court that the expenses are unreasonable and should be added back into the spouse's income for support purposes… If the matter proceeds to trial and expense deductions continue to be in issue, the party seeking to defend the expenses in question has an obligation to adduce all relevant evidence in support of their position that the expenses were in fact reasonable…

179 The issue that the court must determine when considering a request to impute income pursuant to section 19(1)(g) of the Guidelines is whether the full deduction of the expenses in question results in a fair representation of the actual disposable income that should be available to the party for personal expenses and support… In deciding this issue, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of support…Ultimately, the determination of this issue is not an exact science, and the judge is entitled to decide based on all of the evidence whether the amount of expenses claimed is unreasonable on a common-sense basis … An important factor in carrying out this analysis is whether the amount of expenses claimed appears reasonable and proportionate having regard for the income earned…

180 As I indicated in Szitas, a review of the case-law respecting business deduction claims reveals a general theme that in determining whether claimed expenses should be added back into a party's income for support purposes, an important consideration is whether there is evidence of a personal benefit derived from the expenses that employed people would have to pay from their income, or insufficient evidence of a business-use element to the expenses…

ii. Capital Cost Allowance Deductions

181 … Capital cost allowance is an expense which addresses amortization of the business' assets. Income tax rules allow for the deduction of capital cost allowance at specified rates based on the assumption that depreciable assets wear out over time and will therefore have to be replaced. Section 11 of Schedule III to the Guidelines specifically provides that deductions for capital cost allowance in respect to real property must be included in income for support purposes. There is no provision specifically setting out how capital cost allowance respecting personal property should be dealt with, and therefore the reasonableness of this expense is left for the court to determine on a case by case basis pursuant to section 19(1)(g) of the Guidelines…A pragmatic approach should prevail when considering the reasonableness of a capital cost allowance, and the primary focus should be whether the deduction claimed was real and legitimate or was more in the nature of a book entry to artificially reduce the party's income…[edited; citations omitted; bolding added]

[273] Justice T. Minnema also discussed the unreasonable deduction of expenses from income under s. 19(1)(g) of the Guidelines in Yeo v. Hutcheson, [2020] O.J. No. 887, writing:

46 Regarding subsection 19(1)(g), when expenses are deducted unreasonably from income by a self-employed individual, they are generally added back in. While the analysis starts with section 16 and Line 150, the test is whether the annual income fairly reflects the payor's income for … support purposes and whether there is evidence the deduction is unreasonable (i.e., not incurred to produce income)…

[274] I conclude that, according to both Kinsella v. Mills and Yeo v. Hutcheson, the test regarding whether an expense is deductible from income turns on whether, viewed from a common-sense perspective, the expense deducted was reasonably incurred solely to produce income or whether it also provided some measure of personal benefit to the person claiming the deduction.

Dr. Goldman’s Position

[275] Prior to the mini focused hearing, in his initial submissions, Dr. Goldman asserted that Ms. Weiss Goldman “had been declaring large personal expenses and business expenses that unreasonably exceed her income” and that, by doing so, Ms. Weiss Goldman had been creating the false impression that she has no income, something he claimed that she has been doing since she commenced operating “Sure Victor” in 1998.

[276] Many of Dr. Goldman’s concerns touched on deducted expenses that he believes are personal and not business-related, and on capital expenditures by Ms. Weiss Goldman.

Ms. Weiss Goldman’s Position

[277] In her initial responding affidavit, Ms. Weiss Goldman provided details about the expenditures she incurred over the years on her residence, part of which she uses for her income tax preparation business. She noted that the personal portions of the expenses were listed as personal expenditures on her financial statement.

The Mini Focused Hearing Regarding Ms. Weiss Goldman’s Deductions from Income

[278] Ms. Weiss Goldman testified that she resides in a semi-detached building, with one unit at the front of the property and the attached second unit towards the rear of the property. The front portion of the building is maintained as an office for her business. Her residence is in the rear unit.

[279] She testified that she does not use the front unit for any non-business purposes, and that, while the unit is not used at all times during the year, it is “always open for business.”

[280] She further acknowledged that she had not been using the front portion of the building to meet clients since the onset of the Covid-19 pandemic in March 2020. Instead, she has met with her clients at their homes or places of business.

[281] She confirmed that street parking is available in front of her residence/business premises. She also indicated that the larger portion of her recently paved driveway, part of the cost of which she deducted by way of capital cost allowance, was allocated for business purposes, although she did use the driveway, as well, for her own personal parking.

[282] That portion of the building comprising her office was originally built in 1886, while the rear portion in which she resides was built in the 1950s or later. The basements under the two structures are separated by an 8-foot space, although she agreed with Mr. Macri that work done on one part of the basement could have been necessary to maintain the basement for the entire structure.

[283] She testified that, until 2019, she owned two cars, one of which was used for business and one of which was used for personal purposes. In 2019, she transferred one of the vehicles to her sister.

[284] Ms. Weiss Goldman testified that in 2016 she had eighty clients but that the number has now declined to fifty-four, largely because a number of her clients have passed away, although some have moved away and no longer had Canadian income. She had further lost clients due to the pandemic.

Non-Capital Expenditures Deducted by Ms. Weiss Goldman

2016

[285] According to Ms. Weiss Goldman’s 2016 statement of professional activities, amongst the expenses she deducted that year from her business income were $3,985.80 for travel (not including motor vehicle expenses), $163.08 for insurance, $1,311.07 for property taxes on the business unit and $928.01 for landscaping costs.

[286] No deduction was claimed for utilities for the business unit in 2016. However, for the years after 2016, Ms. Weiss Goldman allocated 50% of the cost of utilities to the business unit and deducted that amount from her business income.

2017

[287] According to her 2017 statement of professional activities, Ms. Weiss Goldman deducted from her business income $159.30 for insurance, $1,258.41 for property taxes and $3,691.79 for utility costs allocated by her to the business unit, and landscape costs of $195.88.

2018

[288] In 2018, Ms. Weiss Goldman deducted $200.88 for insurance, $1,249.51 for property taxes and $3,741.11 for utility costs allocated by her to the business unit, and $299.11 for landscaping costs.

2019

[289] In 2019, Ms. Weiss Goldman deducted from her business income $251.64 for insurance, $1,239.71 for property taxes and $4,095.68 for utility costs allocated by her to the business unit, and $39.49 for landscaping costs.

2020

In 2020, Ms. Weiss Goldman deducted from her business income nothing for insurance, $1,247.11 for property taxes and $3,602.08 for utility costs allocated by her to the business unit. There was no deduction for landscaping that year.

Automobile Expenses

[290] In her tax returns between 2016 and 2019, Ms. Weiss Goldman deducted 100% of the costs of operating an automobile (not including capital cost allowance). This vehicle was said to have been used exclusively for business.

i. In 2016, the deduction amounted to $2,138.28. That year, the car was driven 4,987 kms.

ii. In 2017, the deduction amounted to $1,788.27. That year, the car was driven 4,500 kms.

iii. In 2018, the deduction amounted to $2,264.83. That year, the car was driven 100 kms.

iv. In 2019, the deduction amounted to $1,929.59. That year, the car was driven 100 kms.

Capital Expenditures Incurred, and Capital Cost Allowances Deducted, by Ms. Weiss Goldman

2016

[291] Ms. Weiss Goldman’s 2016 income tax return shows that she incurred capital costs of $37,951.27, approximately $27,000.00 of which was spent on office renovations. The work undertaken included the building of cabinets, the installation of a built-in desk, the renovation of walls and the installation of tiles to replace the existing floor. Together with other claimed capital expenditures on her business, Ms. Weiss Goldman spent $39,285.31 on her business in 2016. She deducted from her income that year capital cost allowances totalling $7,434.92.

2017

[292] Ms. Weiss Goldman’s 2017 income tax return shows that she incurred a capital cost of $17,684.50 for the enlargement of the parking area outside of her residence. Of the full cost, she allocated $6,088.44 to personal use.

[293] At an 8% capital cost allowance (which is the rate that applied to the additional parking area, which Ms. Weiss Goldman indicated was a Class 17 capital expenditure), that part of the driveway expansion costs deducted from her business income in 2017 amounted to $410.48, which is 50% of the amount that can normally be deducted because it was the first year of the write off.

[294] Ms. Weiss Goldman also spent $28,317.77 on Class 1 expenditures to her office. (At the mini focused hearing, Ms. Weiss Goldman explained that Class 1 items pertained to the building containing both her residence and her office.)

[295] Ms. Weiss Goldman deducted capital cost allowances totalling $10,909.79 from her business income. The greatest portion of the capital cost allowance total deducted amounted to $8,178.62. It comprised the writing off, at a rate of 20%, of the undepreciated capital cost of previous capital expenditures, including the costs of renovating her office in 2016.

2018

[296] Ms. Weiss Goldman spent $19,929 on Class 6 items in 2018. She testified at the mini focused hearing that the expenditure pertained to a new shed erected on her property. She allocated 100% of the cost to her business. According to Ms. Weiss Goldman, the shed is used to store items related to her business, such as shredded paper, and equipment to maintain the house, such as a snowblower and gardening items.

[297] Ms. Weiss Goldman deducted capital cost allowances totalling $12,376.38 from her business income in 2018. Because that was the first year for which she claimed a capital cost allowance on the newly constructed shed, she could only include 50% of its cost in her calculation of claimable capital cost allowance. At a CCA rate of 10%, the 50% tax deduction amounted to $996.00. In later years, it amounted to $1,992.90.

2019

[298] Ms. Weiss Goldman spent $2,457.50 on an “iron fence”, which she classified as a Class 6 capital expenditure, 100% of the cost of which she allocated to business purposes.

[299] She deducted from her business income capital cost allowances totalling $12,504.48.

2020

[300] In 2020, Ms. Weiss Goldman spent $24,045.00 on capital improvements to her property, all of which she allocated to her business. Of that amount, $4,915.00 related to Class 6 expenditures (iron gates) and $19,130.00 related to a Class 1 expenditure (a basement improvement under her office).

[301] The basement improvement was said to be necessary because “the support of that part of the house was very precarious, all the floors were tilted and there were serious mould and moisture problems in it. All the work done there was necessary for the integrity of that unit.”

[302] Ms. Weiss Goldman also deducted capital cost allowances totalling of $6,356.00 from her business income in 2020. Interestingly, for her Class 8 CCA deduction that year, instead of taking the permissible 20% of the undepreciated capital cost, she only took a capital cost allowance equal to approximately 5.3%. I note that the 20% deduction is not mandatory, but no explanation was provided for why she took less.

Submissions Regarding Business Deductions – Dr. Goldman

[303] Mr. Macri’s submission focused on the overall gross amount of the expenditures made by Ms. Weiss Goldman on capital and non-capital items. The evidence discloses that she spent substantial sums on capital improvements to her property.

[304] However, capital expenditures themselves are not deducted directly against income. Furthermore, Ms. Weiss Goldman testified, both verbally and in her affidavits, that she did not deduct her personal expenses from her gross income.

[305] Mr. Macri also questioned Ms. Weiss Goldman’s cash flow, noting that, with her declared income, she could not possibly have covered such substantial expenditures. What he did not do, however, is provide a conclusive argument that refutes the response of Ms. Lloyd that Ms. Weiss Goldman “received financial assistance from her sister Vera and borrowed on the equity in her house from the home equity line of credit” which, as was noted by Ms. Lloyd, “had a balance of over $79,000.00 as of January 4, 2022.”

[306] Furthermore, Ms. Weiss Goldman had the ability to utilize the spousal support that she was receiving from Dr. Goldman to help fund her expenditures.

[307] There is no doubt that Ms. Weiss Goldman regularly spent far more money than she earned, but she plausibly identified the sources of the additional funds that she required for those expenditures.

[308] In his supplementary submissions following the mini focused hearing, Mr. Macri submitted that it was improper for Ms. Weiss Goldman to treat her property as two distinct properties when they are connected and form “one residential property.” He submitted that there was a mixing of expense deductions, alleging that many of the costs attributed by Ms. Weiss Goldman to her business were more properly personal in nature, meaning that they ought not to have been deducted against her business income. He focused, specifically, on outdoor construction activities, including the shed referred to earlier and an arbor. He noted that, between 2017 and 2020, Ms. Weiss Goldman spent $69,972 on such things as the driveway, the arbor and shed, iron fencing, iron gates and a concrete deck.

[309] He further challenged Ms. Weiss Goldman’s deduction of expenditures on repairing the basement, submitting that, even though the work in one instance had been said to have been done totally under the office portion of building, the entirety of the two connected structures benefited. He noted that, from 2017 to 2020, Ms. Weiss Goldman expended slightly in excess of $49,000 on the basement [excluding a basement gym, for which I accept that she did not deduct the cost.]

[310] Mr. Macri questioned how the cash flow to fund these projects was generated.

[311] He also challenged the amounts deducted for auto expenses.

[312] He also took issue with the full deduction of expenses related to the office portion of the building when it is not used for the entirety of the year for business purposes. He submitted that it was not reasonable for Ms. Weiss Goldman to write off the full costs related to the front portion of the building for business purposes when to do so would suggest that she had an office having area of approximately 627 square feet. He also noted the limited number of clients for whom Ms. Weiss Goldman provided tax services and suggested that there would have been many more days per year when the property sat empty and unused than when it was in use.

[313] To that end, he argued that the cost of the office renovations was unreasonable and asked why someone would spend tens of thousands of dollars renovating an office for a business consistently making less than $10,000 per annum.

[314] Lastly, he noted that from 2017 to 2020, Ms. Weiss Goldman spent 2 to 3 times her business income on expenses, never turning a profit. He queried why someone would continue to operate a business which incurred losses each year without making some attempt to resolve the problem, such as by trying to increase her customer base.

Submissions Regarding Business Deductions – Ms. Weiss Goldman

[315] In her responding supplementary submissions, Ms. Lloyd, on behalf of Ms. Weiss Goldman, challenged several of the “unsubstantiated allegations” made on behalf of Dr. Goldman in Mr. Macri’s supplementary submissions, claiming that he “ignored the evidence with respect to her financial disclosure and her tax business.”

[316] She challenged the assertion that Ms. Weiss-Goldman’s property consisted of “one residential property,” noting that the evidence was that the property consists of a front to back semi-detached residence having one owner. She further reminded me of the evidence of Ms. Weiss Goldman that she does not live in the front unit and uses it only for business.

[317] While she acknowledged that some of the amounts that her client deducted were “estimates,” Ms. Lloyd submitted that she always provided a “straightforward and logical explanation” about the proportion of any expense which she deducted from her business income.

[318] As for the cash flow necessary to fund the various renovations to the property, Ms. Lloyd submitted that the funds received by Ms. Weiss Goldman from her sister or from borrowings against her line of credit could have paid for them, rather than surreptitious sources of income.

[319] Ms. Lloyd further asserted that it was incorrect for Mr. Macri to claim that Ms. Weiss Goldman’s business was only open for three months. She submitted that such a claim was contrary to her client’s evidence that, during the remainder of the year, she performs “a lot of follow-up work” for her clients.

[320] Lastly, Ms. Lloyd submitted that Dr. Goldman “has not made his case” that she “is improperly deducting business expenses or that any income should be imputed to her.

Analysis

[321] I begin by reiterating that s. 19(2) of the Child Support Guidelines specifically provides that, for the purpose of determining whether a spouse unreasonably deducts expenses from income, “the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).”

[322] To the extent that I might have a different view from Ms. Weiss Goldman about any deduction made by her against her business income, or an allocation of capital cost expenditure to business versus personal use, I am not questioning her honesty in any way. I am only focusing on the deduction as it pertains to setting an income for spousal support purposes. I am making no comment about the validity of such a deduction for income tax purposes. Ms. Weiss Goldman’s tax returns appear to have never been challenged by the Canada Revenue Agency.

[323] In considering whether a particular deduction should be allowed for the purpose of assessing a support recipient’s income, I note that there are two aspects to the issue of deductibility. The first relates to the claimed expenses of operating the business, such as the purchase of supplies, and the second relates to the apportioned deduction of capital expenditures said to have been incurred in respect of the business.

[324] I do find that some of Ms. Weiss Goldman’s deductions of non-capital expenditures were excessive. I do so bearing in mind, as Justice Chappel put it at paragraph 178 of her decision in Kinsella v. Mills, supra, that, while “a party who requests that income be imputed pursuant to section 19(1)(g) has the onus of satisfying the court that the expenses are unreasonable and should be added back into the spouse's income for support purposes… the party seeking to defend the expenses in question has an obligation to adduce all relevant evidence in support of their position that the expenses were in fact reasonable…” Some examples follow.

Travel Deduction - 2016

[325] As I have noted, Ms. Weiss Goldman deducted $3,985.80 from her income in 2016 for “travel.” I was not provided with an explanation of this deduction nor how it related to her business. Without an explanation, I conclude that it would not be an allowable deduction from income for determining Ms. Weiss Goldman’s income in 2016 for support purposes.

[326] I note that I am not assessing Ms. Weiss Goldman’s income in 2016. What I am doing, however, is examining her history of deductions to determine what amount, if any, should be added to her income going forward, based on her historical actions.

Operating Expenses Related to Office Unit

[327] As has also been noted, Ms. Weiss Goldman carries on business out of the front unit of the two-unit building located on the property. She reports that it is not used for any other purpose. Thus, she claims that one half of certain expenditures, such as insurance, utilities and property taxes, are incurred for her business.

[328] However, I find that she does not work at her business throughout the year, despite her claim that she does some (unquantified) work after April 30 annually. While I accept that she may well have work to do for clients on whose behalf she prepared tax returns in the first four months of the year, I am not satisfied that she requires the exclusive use of the front unit for that purpose throughout the year. There are, undoubtedly, many days during the months of May through December, inclusive, each year where it is, more likely than not, not being used for a business purpose. I do not accept the claim of Ms. Weiss Goldman that it is, notwithstanding, “always open for business.” The simple fact is that, after April 30 in any year, there is not likely to be much new business walking in the door seeking the services of a tax preparer.

[329] Accordingly, I conclude that it was not appropriate for Ms. Weiss Goldman to deduct 50% of the overall cost of utilities, insurance and property taxes for the unit at the front of the building in any year for the purpose of determining her business income.

[330] In my view, it would be more appropriate to deduct one-half of 50% of those costs, for the months of January through April, inclusive, annually, with an additional allowance for work done in the period between May and December annually.

[331] I would also disallow the deductions for landscaping costs at the property. While it may be desirable from a personal perspective to have attractive plants and trimmed trees around the building, those costs are not essential to the earning of income from the preparation of tax returns, in my view.

[332] I would, therefore, have added back into Ms. Weiss Goldman’s income the following amounts for the following years:

i. 2016: $5,650.89 (50% of deducted amounts for insurance and property taxes; 100% of landscaping and travel costs deducted)

ii. 2017: $2,750.63 (50% of deducted amounts for insurance, utilities and property taxes; 100% of landscaping costs deducted)

iii. 2018: $2,894.86 (50% of deducted amounts for insurance, utilities and property taxes; 100% of landscaping costs deducted);

iv. 2019: $2,833.00 (50% of deducted amounts for insurance, utilities and property taxes; 100% of landscaping costs deducted)

v. 2020: $2,424.60 (50% of deducted amounts for property taxes and utilities)

Motor Vehicle Expense Deductions

[333] I also find that the amount that Ms. Weiss Goldman deducted for the operation of her motor vehicle for business expenses in 2018 and 2019 ($2,264.83 for 100 kms. of use in 2018; $1,929.59 for 100 kms. of use in 2019) was excessive.

[334] Using her expense and mileage figures from 2016 and 2017, her deduction for this expense worked out to $0.43/km. in 2016 and $0.40/km. in 2017.

[335] In 2018 and 2019, when the car was driven a mere 100 kms each year, she deducted operating costs equal to $22.65/km (2018) and $19.30/km. (2019). That is clearly excessive and disproportionate to the amounts claimed in prior years.

[336] While I have no doubt that Ms. Weiss Goldman had to pay insurance on the vehicle in each year, given how little it was driven it seems that it would have been more practical to take the car off of the road, and to have deducted a proportionate percentage of the cost of operating her other vehicle, since she testified that, in each of the years 2018 and 2019, she had two vehicles, only the one of which she used for business. Why pay such large sums for a car driven, on average, about one-third of a kilometre per day?

[337] If I were to use the operating cost per km. driven ratio from 2016, a proportionate deduction would have been $43.00 in each of 2018 and 2019. This means that the balance of the claimed deduction ($2,221.83 in 2018 and $1,886.59 in 2019) should have been added back into her income in those years.

Capital Cost Allowance Claims

[338] In respect of capital expenditures and related deductions, it was noted by Justice J. Kroll at paragraph 32 of the decision in Riel v. Holland, [2002] O.J. No. 5609, that, while the Income Tax Act does not bind the court when determining whether a claimed deduction should be allowed for the purpose of determining income for support purposes, “[a]n individual who works from his or her home is entitled to deduct expenses relating to the work space in that home if that work space constitutes the individual's principal place of business or if that work space is used exclusively for the purpose of earning income from business and used on a regular and continuing basis for meeting clients, customers or patients of the individual in respect of the business.”

[339] I cannot conclude on the evidence that the office portion of the building is “used on a regular and continuing basis for meeting clients.” I have already reduced the deductibility of non-capital expenditures on that portion of the building by 50% on the basis that it is not so used.

[340] The real question, however, is whether the expenditures related to that portion of the building provided Ms. Weiss Goldman with a personal benefit, “whether the amount of expenses claimed is unreasonable on a common-sense basis,” “whether the amount of expenses claimed appears reasonable and proportionate having regard for the income earned.” (Kinsella v. Mills, at para. 179, supra)

[341] Stated differently, I ask myself whether some of the capital expenses claimed by Ms. Weiss Goldman were necessary for her to earn her business income. I find that they were not.

[342] Ms. Weiss Goldman readily acknowledged that she has never made a profit from her tax preparation business. Notwithstanding, she has deducted from her income earned over the years, by way of capital cost allowance deductions, significant sums on expenditures that I would regard as being either unreasonable and disproportionate having regard to the income that she earned from her business, or which contained an element of personal benefit.

[343] For the former (being either unreasonable and disproportionate having regard to the income that she earned from her business), I advert particularly to the cost of renovating her home office ($27,000), installing the shed (which I find also has a personal use component) at a cost of $19,929, and adding the parking pad at a cost, exclusive of personal use, of approximately $11,000.00.

[344] For the latter (containing an element of personal benefit), I advert to the installation of iron fencing and iron gates, which I see in no way being an expenditure necessary for Ms. Weiss Goldman to earn her income. I highly doubt that her clients cared about whether she had such amenities at her property, which she described as being located in a “low income/high crime” area of London when answering Mr. Macri’s inquiry about why she does not rent out the office unit and earn rental income for the full year, rather than rely on business income for only part thereof. I conclude that these expenditures were made to enhance the look of the property. Such expenditures, in my view, conferred a personal benefit on Ms. Weiss Goldman.

[345] In a similar vein, I accept the submission of Dr. Goldman that the expenditures on the basement under the business unit also benefited, to some extent, the unit located to its rear, which contained Ms. Weiss Goldman’s personal residence. Had the front of the building fallen down, there would undoubtedly have been some deleterious effect on the personal residence of Ms. Weiss Goldman. In that sense she, therefore, did derive some personal benefit from that work.

[346] Moreover, according to Section 11 of Schedule III to the Guidelines, in determining a spouse’s income, one must add back into their “Total Income” on theT1 General form, “the spouse’s deduction for an allowable capital cost allowance with respect to real property.”

[347] There is no reference to any particular Capital Cost Allowance Class under the Income Tax Act to which such expenditures should be allocated to disqualify the deductions. However, it appears, based on Ms. Weiss Goldman’s 2016 through 2020 income tax returns, that expenditures that she has allocated to Classes 1, 6, 8 and 17 relate to real property. [Ms. Weiss Goldman testified that Class 1 capital cost allowances relate to buildings and Class 6 CCAs relate to “outdoor structures and driveways.” She could not identify Class 17 CCAs.[^1]]

[348] The reference to real property in Section 11 of Schedule III to the Guidelines includes buildings. (Rudachyk v. Rudachyk, [1999] S.J. No. 312 (Sask. C.A.); Qaraan v. Qaraan, 2012 ONSC 6017, [2012] O.J. No. 5938 (Ont. S.C.J.))

[349] There is no suggestion in this case that Ms. Weiss Goldman is unreasonably deducting the CCA on capital expenditures on chattels, so I am not considering any such claimed CCAs. (Beeler v. Beeler, [1997] S.J. No. 612 (Sask. Q. B.))

[350] However, because Class 8 capital expenditures include both those “with respect to real property” and those which are not, I have concluded that it is most prudent to include only that percentage of the total cost of expenditures pertaining to real property, including buildings, for which claims have been made in that Class, taken from Ms. Weiss Goldman’s income tax returns, and applying that percentage to the CCA deduction taken in each year. I include the full claim for CCA for 2016 through 2020, including on the undepreciated capital cost of prior years, with respect to Classes 1, 6 and 17.

[351] On this basis, I find that the deductions claimed by Ms. Weiss Goldman that ought to have been added back into her income for support purposes, including the capital cost allowance deductions that she claimed on the renovations to the office, the basement beneath it and the outdoor amenities at 527 Grey St. over the years 2016 through 2020 amounted to the following:

i. 2016: $4,224.90

ii. 2017: $6,911.86

iii. 2018: $7,952.51

iv. 2019: $4,555.66

v. 2020: $5,586.86 (allocating 50% of basement remediation under business unit to personal benefit)

[352] Adding these figures to Ms. Weiss Goldman’s claimed non-support income for those years produces the following revised result for her non-support income for each of those years:

i. 2016: -$9,957.70 + $5,560.89 + $4,224.90 = -$171.91

ii. 2017: -$19,377.16 + $2,750.63 + $6,911.86 = -$9,714.67

iii. 2018: -$17,321.36 + $2,894.86 +$2,221.83 + $7,952.51 = -$4,252.16

iv. 2019: -$14,314.26 + $2,833.00 + $1,886.59 +$4,556.66 = -$5,038.01

v. 2020: -$7,880.39 + $2,424.60+ $5,586.86 = $131.07

[353] This analysis leads me to the conclusion, and I find that, even allowing for the addition back into Ms. Weiss Goldman’s income of the capital cost allowance deductions related to real property, she only earned a miniscule positive income for 2020, with her losses still exceeding her adjusted income for the years 2016 through 2019.

[354] If I average the reduction in the business income losses sustained by Ms. Weiss Goldman over the years 2016 through 2020, I obtain an average annual reduction in her business losses of $9,961.04.

[355] Of course, Ms. Weiss Goldman would still show no income from self-employment in any year in which her business losses exceeded $9,961.04. On the evidence, that seems to have been most years.

[356] In 2021, however, as I have already noted, Ms. Weiss Goldman’s non-support income, including her business losses, amounted to $42,337.98. Her reported net income from self employment amounted to -$2,062.51.

[357] By adding the 5-year average over-deduction of $9,961.04, in 2021 Ms. Weiss Goldman’s business income would have increased to $7,898.53, and her total non-support income would have been $52,299.02.

[358] While I recognize that this represents only a one-year amount, when coupled with the small positive income that would have been reported by Ms. Weiss Goldman in 2020 had she been required to add the average over-deduction of business expenses claimed back into her income, she would have had a positive income to report from her self-employment in both 2020 and 2021.

Conclusion Regarding Ms. Weiss Goldman’s Alleged Unreasonable Deductions of Expenses from Income

[359] Mr. Macri submits that I should impute to Ms. Weiss Goldman an income of $5,000.00 from her income tax preparation business on the basis that she improperly deducted some of her claimed expenses against her business income.

[360] That would mean that, in 2021, Ms. Weiss Goldman’s non-support income would have been, not $42,337.98, but $49,399.23, after deducting from her income in 2021, as disclosed in her January 2022 Financial Statement, her support income and her business loss of $2,062.51, and adding in the $5,000.00 income sought by Dr. Goldman.

[361] I prefer, instead, to impute an additional $5,000.00 in income to Ms. Weiss Goldman, based on her over-deduction of business expenses. Thus, in 2021, her non-support income would have been not $42,337.98, but $47,337.98, after deducting from her income in 2021, as disclosed in her January 2022 Financial Statement, her support income, and adding in the $5,000.00 income sought by Dr. Goldman.

[362] That is the preliminary income that I will be imputing to Ms. Weiss Goldman for 2021, based on the addition back to her business income of $5,000.00 on over-deductions. While not matching exactly what Mr. Macri sought on behalf of Dr. Goldman, the amount does reflect an acceptance of his submission that Ms. Weiss Goldman has demonstrated a pattern of taking excessive deductions from business income.

iii) Is. Ms. Weiss Goldman Intentionally Underemployed?

[363] Justice Chappel addressed this issue in Kinsella v. Mills as follows:

2. Section 19(1)(a): Intentional Under-Employment or Unemployment

169 The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under- employment in Drygala and more recently in Lavie v. Lavie, 2018 ONCA 10 (C.A.). The following general principles derive from those decisions and other cases which have considered section 19(1)(a):

3. A finding of deliberate under-employment or unemployment does not require evidence of bad faith…

4. In determining whether a party is intentionally under-employed or unemployed, the court should consider the party's capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party's capabilities and the amount of income that the party could reasonably earn if they worked to capacity…

5. A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement may constitute grounds to impute income to a party. Accordingly, the court may find the party to be intentionally under-employed or unemployed and impute income where the party has persisted in un-remunerative income-earning activities, or where they have pursued unrealistic or unproductive career aspirations…

6. Even if the court determines that a party is intentionally under-employed or unemployed, the court nonetheless has the discretion to decide whether or not to impute income to them….

172 If the court determines that income should be imputed on the basis of a party's intentional under-employment or unemployment, it must then determine the appropriate level of income to impute to the party. In carrying out this task, the court must consider all of the evidence adduced by both parties and determine what is reasonable and fair having regard for the particular facts of the case and the circumstances of the family members… The onus on the party seeking to impute income does not extend to proving the appropriate quantification of the imputed amount… Relevant factors in quantifying the imputed income include the age, education, experience, skills and health of the party, their historical income when they were earning a higher income, their ability to resume an income commensurate with their past income, the availability of work and any other obligations which they may have… [edited; citations omitted]

Dr. Goldman

[364] It is Dr. Goldman’s position that Ms. Weiss Goldman is intentionally underemployed, choosing to rely on spousal support to live.

[365] His view is that, with her level of education, Ms. Weiss Goldman is a person “who should have been fully employed,” claiming that there is no reason that she could not have been independent, if not at the time the parties separated, then within a few years, and certainly long before now.

[366] He claimed that she “abandoned” the opportunity she had to advance her career in either Psychology or Economics, in both cases, “after investing years of study.”

[367] He asserted that, despite Ms. Weiss Goldman’s “vast training and education,” she has not been able to make her tax business viable, “nor has she made any effort to gain proper employment.”

[368] While Ms. Weiss Goldman’s original desire was to pursue a career in academia, he asserted that she abandoned that goal when she enrolled in the MBA program at Western.

[369] He pointed out that her tax-preparation business, operated since 2004, has always lost income, with expenses being twice gross income in the period between 2018 and 2020.

[370] He noted that, while Ms. Weiss Goldman’s MBA from Western specialized in Marketing, Entrepreneurship and Corporate Finance, she has made no efforts to increase her business through advertising or by other means.

[371] Noting that, in her response to a Request for Information, Ms. Weiss Goldman confirmed that the bulk of her tax-preparation business is conducted during the first four months of the year, he alleged that she has provided no explanation about what she does to pursue income during the other eight months of the year, leading him to conclude that she does nothing in that regard.

[372] Mr. Macri further submitted that the “highly educated” Ms. Weiss Goldman had failed to seek out reasonable employment opportunities which would maximize her income potential. He claimed that she failed to take steps to increase her income as a tax preparer, as she also failed to seek out more business.

[373] He pointed to her repeated business losses, beginning with her dog training business and continuing annually for several years with her tax-preparation service. He claimed that it is not reasonable to continue carrying on a business with no reasonable prospect of earning an income. He submitted that, by her actions, Ms. Weiss Goldman “has disentitled herself to spousal support.”

[374] Mr. Macri relied upon Politis v. Politis, [2021] O.J. No. 4068 (C.A.), to support Dr. Goldman’s position in this regard.

[375] In Politis, the Court of Appeal dismissed an appeal by a wife from an order for spousal support of $3,000.00 per month until 2024 and $1,500.00 per month until 2026, when support was to terminate. The parties had been married 25 years and at the time of trial had been separated for 11 years. By that time, the wife had been residing with the new partner for at least eight years, and the husband had paid spousal support for about nine years. The wife had not been employed since separation primarily because of a medical diagnosis which affected her ability to re-enter the workforce. The trial judge had found that the wife had established a prima facie case for entitlement to spousal support on both a compensatory and needs basis.

[376] The Court of Appeal noted that the trial judge had found that “as a result of the appellant's age, health, lack of education and work experience, she had a difficult time re-entering the workforce following separation; and she cannot be self-sufficient based on her own income or assets.” (paragraph 13)

[377] The trial judge also found, however, that the appellant enjoyed a standard of living with her new partner that was comparable to or better than that which was in place when she was married to the respondent. The court quantified the net financial benefit available to the appellant from her new partner as equivalent to $44,268 per year.

[378] In the end, the decision of the trial judge was upheld because, as noted by the Court of Appeal, “re-partnering is highly relevant to what otherwise might be an insurmountable difficulty in becoming self-sufficient.” (at paragraph 44)

[379] In my view, the fact that the recipient spouse had re-partnered, and benefited financially from the re-partnering, distinguishes the decision of the Court of Appeal in Politis.

[380] Mr. Macri also relies upon the decision of the Ontario Court of Appeal in Choquette v. Choquette, [2019] O.J. No. 2004.

[381] In that case, the parties had separated after a 15-year marriage. The husband had been ordered to pay spousal support of $4,750 per month indefinitely, an award which had been premised on the appellant quickly returning to the workforce. She did not do so and received spousal support for 22 years. The husband, intending to retire, brought a motion to change, to which the wife responded with a cross-motion seeking an increase of support to $15,000 per month.

[382] The motion Judge ordered that spousal support terminate. The recipient wife’s appeal was dismissed.

[383] The Court of Appeal noted that the support recipient, not having returned to the workforce, derived her income almost exclusively from spousal support. At the time of the appeal, she had a net worth of $781,000, which grew from a net worth of approximately $200,000 at the time of separation.

[384] The motion judge had found that she had never obtained employment despite having marketable skills because she never made any serious attempt to do so. She was also found not to be credible.

[385] The motion judge, in terminating support, stated that he was “mindful” that his order may create economic hardship for the recipient because she did not appear to be self-sufficient. He noted, however, that the question that the court had to address was whether the recipient “remains entitled to spousal support from her former spouse.” The motion judge found that she was not.

[386] One of the issues on the appeal was whether an overemphasis had been placed by the motion judge on the objective of the support recipient becoming self-sufficient.

[387] The Court of Appeal noted that there is not a requirement that a former spouse become self-sufficient. According to the Court of Appeal, the Divorce Act “merely directs that a support order should, among other objectives, encourage a former spouse to become self-sufficient, and only “insofar as practicable.” (paragraph 17)

[388] The support recipient was not self-sufficient because she had never worked. She argued that, even if it were ever practicable that she could become self-sufficient, it was now 22 years post separation, she was 62 years of age, her professional qualifications were stale, and her former experience was irrelevant.

[389] In response to that argument, Justice B. Miller wrote, on behalf of the court:

19 It does not follow, from that submission, that an unreasonable emphasis was placed on the objective of self-sufficiency. In determining whether support ought to be terminated, while self-sufficiency was a factor of particular importance, the motion judge specifically assessed each of the objectives under s. 17(7) of the Act. None of the objectives spoke in favour of continued support. With respect to the recognition of economic advantage or disadvantage arising out of the marriage, the motion judge found that any disadvantage to the appellant had been compensated for by the length of the support…With respect to economic hardship faced by the appellant, the motion judge determined that any economic hardship arising from the breakdown of the marriage had long been addressed through the provision of support, and any current economic hardship was not a result of the marriage or its breakdown, but her own choices.

[390] Responding to a submission by the Appellant that there were other alternatives to wean her off support which would have been less draconian than an immediate termination, the Court of Appeal, while agreeing that the result appeared to be harsh, also agreed that “the mere fact that there is a disparity between the resources of the appellant and the resources of the respondent does not, in the circumstances of these parties, supply a juristic reason to continue support.” (paragraph 29)

[391] In Juvatopolos v. Juvatopolos, [2004] O.J. No. 4381; appeal dismissed at 2005 35677 (ON CA), [2005] O.J. No. 4181, the husband brought a motion to terminate spousal support because the recipient was living with another person who was paying her $1,200 per month, and because the recipient was alleged to not have been making a sincere effort to achieve self-sufficiency. Justice Mazza, in reducing the spousal support to $400 per month, wrote:

27 As for the issue of self-sufficiency, Ms. Lloyd's efforts in that direction appear to have been stagnant virtually since the original order. …It is clear that she has not made any reasonable attempt to improve her financial circumstances and I find that the likely motivator or, perhaps more accurately, the non-motivator, is the money that she has been receiving from [her new partner]. Although there may be some merit to the argument that her most productive years in achieving a solid career base occurred during the time that she raised her children, she nevertheless offers very little by way of genuine effort to become self-sufficient. As a matter of fact, by her own admission, she refuses to work longer hours. Accordingly, Ms. Lloyd's lack of motivation in at least making a sincere effort to become self-sufficient will reduce the quantum of spousal support substantially.

Ms. Weiss Goldman

[392] Ms. Weiss Goldman addressed the issue of her claimed under-employment. In her factum, Ms. Lloyd wrote:

The Respondent [made] numerous attempts [at] becoming self-sufficient throughout the marriage but was not successful. Twenty-one years after the parties separate, it is unreasonable to think that the Respondent can be self-sufficient given her age, health and meaningful absence from the workforce.

[393] In her evidence, Ms. Weiss Goldman asserted that she made “a great deal of effort to obtain employment” following the parties’ separation and that it was not her choice to remain unemployed.

[394] Appended to Ms. Weiss Goldman’s affidavit was a list of ninety-five positions to which she deposed that she had applied between June 2001 and May 2005 - a period of 48 months, representing, on average, two applications per month in the period covered.

[395] She also appended a list of twenty-four organizations to which it appears she made “cold calls” or sought information about interviews. The period during which these activities occurred was not defined.

[396] According to her evidence, which was not contradicted by Dr. Goldman, following the parties’ separation, Ms. Weiss Goldman “went through a period of extreme stress, lack of self confidence and confusion.”

[397] Ms. Weiss Goldman deposed that, following the parties’ separation, she “worked harder” to find employment. In 2001 and 2002, she completed courses to assist her with finding employment. From 2001 to 2006, she gained experience in tax-preparation by volunteering for free tax clinics offered by Canada Revenue Agency. In 2004, she leveraged some of that training and began to offer paid tax-preparation services out of her home. She deposed that her “work as a volunteer at tax clinics has been the beginning of rebuilding my self-esteem and expressions of appreciation from my clients are instrumental in maintaining it.”

[398] In 2005, however, Ms. Weiss Goldman was diagnosed with malignant thyroid cancer, for which she ultimately had to have her full thyroid removed. This diagnosis, according to Dr. Goldman, caused him to terminate an earlier effort to review the order of Justice Campbell.

[399] Adding to her difficulties, according to Ms. Weiss Goldman, is the fact that has suffered throughout her life from a hearing impediment, for which she underwent surgery on her left ear in 1983. While this improved her hearing to some extent, she now wears a hearing aid in her right ear and cannot compensate for the hearing impediment in her left ear because of recurring infections. As a result, she cannot hear people at a distance of more than six feet. At closer distances she still has problems distinguishing sounds, making it difficult to communicate, particularly when people wear masks. (Dr. Goldman replied that, like Ms. Weiss Goldman, he also suffers from hearing loss and is reliant on hearing aids. He alleged that his hearing loss has not deterred him in the pursuit of his career.)

[400] As for the claim that she only works four months a year, she responded that she performs “a lot of follow-up work for my clients, either because their tax returns are being reviewed due to a discrepancy between the CRA assessment and the client’s tax return or for other reasons.” She also claimed that she has the opportunity to work on audits on “rare occasions.”

[401] Ms. Weiss Goldman, as has already been noted, has not turned a profit during the time that she has been operating her tax preparation business, not did she make a profit while running “Sure Victor.” As I further noted, supra, in 2020, Ms. Weiss Goldman continued her string of business losses, claiming a net business loss that year in the amount of $2,062.51.

Analysis

[402] I begin by acknowledging that, during her marriage, Ms. Weiss Goldman was dedicated to the pursuit of an academic career. She demonstrated that dedication, albeit somewhat imperfectly, by twice coming close to, then abandoning, doctorates in two quite different fields.

[403] She then successfully embarked on the pursuit of an MBA degree which focused on skills which, viewed objectively, one might think would prepare the holder for success in business development.

[404] However, Ms. Weiss Goldman has either been unable to develop her tax preparation business, or she simply did not try.

[405] While I accept that her inability to complete the educational programs that she undertook likely took an emotional toll on her, the fact is that she decided to change her focus and enter a different field – business – for which she earned an advanced degree.

[406] It seems intuitive that, with income tax returns needing to be filed, for the vast majority of taxpayers, by April 30 annually, Ms. Weiss Goldman has set herself up to either be free to pursue other business opportunities during the remainder of the year, or to run them concurrently with her tax preparation business for the first four months of the year.

[407] Ms. Weiss Goldman produced no specific evidence of efforts to secure other employment or self-employment for the period after 2006. She also produced no evidence of any efforts to expand her tax preparation business over the years or to make it profitable.

[408] I do not accept Ms. Weiss Goldman’s evidence that she is kept so busy during the period between May 1 and December 31, annually, doing follow-up work on her clients’ tax returns that she has been unable to undertake some other remunerative activity.

[409] While I would not expect a person of her current age and with her education to necessarily work in the retail or fast-food sectors, surely, at some time since she began her tax preparation business in 2004, she could have decided that, in the period between May 1 and December 31, annually, she should secure other employment to supplement her income from tax preparation. In 2004, she was only 54 years of age – certainly not so old as to be incapable of working somewhere to make up for, or reduce, the annual business losses that she continued to incur from her tax preparation business.

[410] Could she have trained other tax preparers for a business such as H&R Block? Could she have obtained employment with that or a similar organization? Could she have secured employment in an accounting firm? She provided no evidence to assist me in this area.

[411] While I accept that it may have been difficult in the past for Ms. Weiss Goldman to find alternate or supplemental employment, it appears that she simply gave up the search after 2005. She ought not to have done so.

[412] In these circumstances, I find that Ms. Weiss Goldman is and has been intentionally underemployed. As the Court of Appeal wrote in Lavie v. Lavie, [2018] O.J. 90, at paragraph 24:

The reasons for underemployment are irrelevant. If [someone] is earning less than she or he could be, he or she is intentionally underemployed.

[413] In making that finding, however, I am also mindful of what was written by the Ontario Court of Appeal in Trewin v. Jones, 1997 1105 (ON CA), [1997] O.J. No. 399. In that case, at the time of the divorce, the support recipient wife had expected that she would have a teaching degree within four years. The trial judge had awarded time-limited support in the expectation that the wife would secure employment. At the time of trial, the wife had provided evidence that despite her best efforts she had been unable to secure the employment she expected. The evidence indicated that she had sent out 103 job applications for teaching positions but had only been able to obtain work as a supply teaching assistant on an occasional basis.

[414] In allowing the wife’s appeal of a denial of her motion to vary spousal support, Justice Rosenberg quoted Justice Proudfoot of the British Columbia Court of Appeal in Story v. Story, (1989), 1989 5317 (BC CA), 23 R.F.L. (3d) 225, whose words were approved by Justice L’Heureux-Dube in Moge:

It is often, in my opinion, totally unrealistic to expect that a 45- or 50-year-old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment and self-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent. That obligation must flow from the marriage relationship and the expectations the parties had when they married.

[415] Justice Rosenberg further found that the support recipient could not support herself without continued assistance from the support payor. As a result, the matter was remitted to the trial court to determine an appropriate amount of support.

[416] Ms. Weiss Golddman, however, unlike the women referred to by Justice Rosenberg, did secure self-employment after not being in the competitive job market for many years. That noted, I also take from the decision that, even if income might be imputed to a recipient spouse, it need not necessarily result in the total elimination of spousal support.

[417] As Justice T. Minnema noted in Yeo v. Hutcheson, supra, section 19 of the Guidelines “is not an invitation to the court to arbitrarily select an amount as imputed income”, “there must be a rational basis underlying the selection of any such figure,” and “the amount selected as an exercise of the court's discretion must be grounded in the evidence.”

[418] In this case, while I cannot say with absolute certainty that the imputation of even an income of $5,000.00 is “grounded in the evidence,” it is equally a fact that Ms. Weiss Goldman is not engaged in other remunerative employment between May 1 and December 31, annually. For that, I have found her to be intentionally underemployed.

[419] I find that Ms. Weiss Goldman could better utilize her time after April 30 each year and generate some additional income. Because she is not doing so, I impute to her an additional income of $3,000.00, which is added to the $5,000.00 earlier added for over-deductions from business income.

[420] To be clear, the amount imputed works out to approximately $375.00 per month. At even minimum wage, that equals approximately 25 hours per month, or less than 7 hours per week.

Conclusion on Imputing Additional Income to Ms. Weiss Goldman

[421] Based on the foregoing, including Ms. Weiss Goldman’s 2021 income, as she reported in her Financial Statement of January 2022, and the addition of $5,000.00 imputed income for excessive deductions taken against her business income, plus $3,000.00 imputed income for underemployment, I find that, for support purposes, based on her 2021 stated income, Ms. Weiss Goldman will have imputed to her a non-support income of $50,500.00 for support calculation purposes.

Should Ms. Weiss Goldman Share in Dr. Goldman’s Post-Separation Increases in Income?

[422] Not surprisingly, the parties disagree on this issue.

[423] At the time the parties separated, Dr. Goldman was earning an income of $89,900.00 per annum. Translated to an equivalent amount in 2020, according to the Bank of Canada^2, Dr. Goldman would have been earning $124,967.38. By 2022, that figure would have grown further to $139,267.58.

[424] Dr. Goldman, according to his Financial Statement sworn January 4, 2022, had a gross income in 2021 of $342,292.15. That amount was comprised of employment income of $239,851.92, interest and investment income of $37,396.20 and pension income, including Canada Pension and Old Age Security, of $65,044.08.

[425] Ms. Weiss Goldman, citing Want v. Gauthier, [2021] O.J. No. 6859, submits that even in cases where the payee spouse’s right to support is largely needs-based, a court can award the payee spouse a share of the payor spouse’s post-separation increases in income.

[426] In Want, the parties had been in a relationship for 22 years and had one child who was 20 years of age when the parties separated.

[427] Justice A. Doyle found that the wife, who was 61 years of age, in receipt of disability benefits, and had an income of $30,000.00, was entitled to spousal support “largely based on need with a small compensatory element.” She continued, at paragraph 81:

81 This court finds that the wife's entitlement is based on need, as the support obligation arises from the marriage relationship itself as the wife is unable to become self-sufficient. Under this model, spousal support is based on economic hardship resulting from the breakdown of the marriage.

[428] The husband had retired from work with the federal government in 2013, after which he began to work as a contractor for Shopify, becoming a full-time employee in 2017.

[429] Justice Doyle held, at paragraph 85, that the compensatory element of the spousal support was “rooted in being at home when [the husband] was away, supporting his decision to train in this new career so that the couple would have other income when he retired; and direct contribution in driving him on occasions.”

[430] Justice Doyle also held, at paragraph 85, that what was “most significant with the husband's decision to proceed with this career path was the discussion between the parties that this was going to be a new source of income when he retired at age 55, which would occur in 2014.”

[431] Despite finding the existence of a small compensatory element upon which to base support, Justice Doyle also found, at paragraph 90, that the wife’s “right to share in this post-separation income is rooted in her needs, the lengthy relationship and the husband's ability to pay.” She continued:

91 Some previous cases stipulate that a spouse's entitlement to spousal support on the other spouse's increased income is only permitted if entitlement is based on compensatory grounds.

92 However, as will be discussed below, the determination of spousal support is an exercise of discretion and requires a balancing and careful consideration of the factors and objectives set out in the Divorce Act.

93 Each case turns on its own facts.

94 A careful review of the recent trends in the case law shows a more flexible approach to the sharing of increased post-separation income. That is, a sharing can occur even in cases of non-compensatory support.

[432] Justice Doyle noted the continuance of the principle, articulated by the Ontario Court of Appeal in Patton-Casse v. Casse, 2012 ONCA 709, that a court must “determine if there is a connection between the post separation income and efforts of the payee spouse during the marriage.”

[433] She also cited the following principles, taken from the cases cited.

98 To share in post-separation increases in income, the wife must show that she had contributed to the acquisition of the other spouse's skills or credentials, thus contributing to his ability to earn the increased income. The court noted that such contribution need not be "tangible and explicit": Sawchuk v. Sawchuk, 2010 ABQB 5, 79 R.F.L. (6th) 135, at para. 30.

99 If the increase in salary is founded in expertise and seniority established during the marriage and no intervening event or events are the cause of the increase, then the increase is to be included unless the recipient's role during marriage necessitates a different determination. If an event after separation is the reason for the increase, in whole or in part, then the increase may be excluded from consideration, also in whole or in part: Judd v. Judd, 2010 BCSC 153, 83 R.F.L. (6th) 314.

[434] Justice Doyle also referred to the Ontario Court of Appeal decision in Hersey v. Hersey, 2016 ONCA 494. In that case, the Court of Appeal dismissed the wife’s appeal of the denial of her claim for a share in the husband’s post-separation increases in income. The Court of Appeal wrote the following about the motions judge’s findings:

20…She found that the careers of the parties were established prior to the marriage. The appellant was a teacher and the respondent, a lawyer. There had been no significant changes in the careers of either. The evidence about childcare responsibilities during the marriage was conflicting. She concluded that the appellant had not made the sorts of sacrifices that the courts have required to justify an award for increased compensatory support. Accordingly, she concluded that spousal support should be calculated on the basis of the parties' incomes as at the date of separation.

[435] The Court of Appeal also found it to be “implicit in the motions judge's findings that she did not accept much of the appellant's evidence” about an inability to work full time. (para. 12)

[436] Justice Doyle further noted that, while the parties had both referred extensively to the Reasons of Justice Chappel in Thompson on this issue, Justice Chappel had since, in Kinsella v. Mills, 2020 ONSC 4785, “tweaked” the principles that she had set out in Thompson, “so that there is no hard and fast rule that a spouse can only share in increased post-separation income if their entitlement is rooted in compensatory elements. Rather, the Court must return to the principles set out in the Divorce Act.” (para. 106)

[437] Again, citing Justice Chappel in Kinsella v. Mills, Justice Doyle wrote, at paragraph 109 of Want v. Guthier:

…in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor's post-separation income increases…. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases in purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases.

[438] Finally, at paragraph 111, Justice Doyle suggested that, when considering whether a spouse should “share in the other spouse's post-separation increases in income, the court should embark on the following steps:

i. Review whether there is some link between the recipient spouse's efforts and the post-separation increases in income;

The recipient spouse will usually be permitted to share if they can demonstrate that they made contributions that can be directly linked to the increased income;

If there is a link which includes the recipient spouse's direct and indirect contributions, then the recipient spouse's spousal support is based on a compensatory element, and he/she will be entitled to share in some or all of the post-separation income;

Both direct and indirect contributions (like childcare) can give rise to sharing the payor's post-separation increase, whether before or after separation.

ii. Consider the time elapsed since the date of separation;

iii. Consider the reason for the subsequent income increase (new job vs. promotion with same employer, or career continuation vs. new venture);

iv. Consider whether there are other compensatory elements. While there may be a weak link between the recipient wife's efforts, e.g., he/she made no sacrifices, did not lose career opportunities, did not move for the spouse's career, there may still be elements of a compensatory nature, such as the career trajectory started, as here, during the marriage. In these cases, the recipient spouse may be entitled to share in some of the post-separation income increases;

v. Consider whether there is a strong non-compensatory claim, seen for example in some cases of long-term relationships and disability or illness. These cases open the possibility for the sharing of the post-separation income.

vi. Consider sharing post-separation increases of income's objective of maintaining a reasonable standard of living, as measured by the standard enjoyed during the relationship;

vii. Consider if the income increases take place closer to separation and reflect a continuation of previous employment, training and experience during the relationship; and

viii. Carefully inquire into the facts for some non-compensatory cases.

[439] I have already concluded that Ms. Weiss Goldman’s claim for spousal support is non-compensatory at its foundation. Want v. Gauthier is a case of first instance which appears not to have been the subject of subsequent judicial consideration since 2021. Recognizing, however, that it appears to represent somewhat of a changed approach from what has gone before regarding entitlement to share in post-separation salary increases, I now examine the other principles set out by Justice Doyle.

[440] The parties differ on the reasons for Dr. Goldman’s post-separation increases in income.

[441] Ms. Weiss Goldman asserted that, for a few years before the parties separated, Dr. Goldman became concerned that his research in theoretical atomic physics was stalling and he was not publishing anything.

[442] She speculated that Dr. Goldman spent a post-separation sabbatical at Victoria Hospital exploring the possibility of switching to medical physics because of “his unhappiness about his research in atomic physics and the incentive of a higher income,” referring to a post-doctoral fellow who had worked with Dr. Goldman some years before 2001 who had switched to medical physics and who was making a much higher salary than Dr. Goldman.

[443] She claimed that the work undertaken by Dr. Goldman after he switched to medical physics was not greatly dissimilar from his earlier work in physics, asserting that it is “obvious” that his professional qualifications acquired before the separation are “the main foundation of the qualifications required in his new field”, basing her conclusion on her “knowledge” of what his research involved prior to 2001 and comparing that to “the titles of his publications after he switched to medical physics”, all of which involved mathematical models and algorithms, which he also been developing before his switch to medical physics.

[444] She asserted that the only difference between the work he was doing before the separation and after was that he had to acquire knowledge about radiation therapy.

[445] Dr. Goldman, in response, asserted that, following the parties’ separation, in September 2001, he took a sabbatical hosted by the Medical Physics Department at London Health Sciences Centre, Victoria Campus.

[446] As a result of that sabbatical, he decided to “perform a drastic change in [his] career” , switching from the “theoretical field of Relativistic Atomic Physics and Quantum Electrodynamics” in which he had worked for 20 years to the “unrelated applied field of Radiation Therapy of Cancer Tumors, a branch of Medical Physics” in which he had never before worked or pursued research.

[447] He and others with whom he collaborated at Victoria Hospital developed a new technique for the delivery of radiation therapy for cancer. His work in medical physics led to his hiring by Ryerson University in 2006, chairing the newly created Department of Physics, which had only one program, that being in Medical Physics.

[448] He denied the knowledge claimed by Ms. Weiss Goldman about the areas of physics required for his new position at Ryerson.

[449] His switch to a career in medical physics required that he learn subjects in medicine, biology and oncology, dosimetry and radiation therapy. He had to learn different computer programming languages and visualization software, none of which were part of his work before separation. His new and old careers are “substantially different” and the professional qualifications for his new job in Medical Physics have “little overlap with the qualifications I had before separation.”

Analysis

[450] The parties were clear that they wanted this matter brought to a conclusion, rather than wait the now, possibly, two years post-Covid for a trial. They agreed that I should attempt to resolve differences in the evidence. I am doing so in respect of this issue.

[451] Ms. Weiss Goldman has an honours bachelor’s degree in physics. Clearly, Dr. Goldman’s knowledge and experience in physics far exceeds her, including his two degrees beyond hers in the field, plus his years of research.

[452] I prefer Dr. Goldman’s evidence on this issue. I find it more likely than not that, in order to succeed in his career in Medical Physics, he was required to embark on an entirely new field of study, which built upon his foundation in advanced physics.

[453] I do not accept as credible Ms. Weiss Goldman’s claim that she has been able to discern the lack of a substantial difference between the work that Dr. Goldman has been involved within the field of medical physics and the work he was previously involved with in theoretical aspects of physics partly, if not substantially, based on a comparison of the titles of Dr. Goldman’s publications following his switch to medical physics.

[454] She provides no examples of the titles she reviewed, nor has she explained how the comparison of titles led her to the conclusion that she has drawn and that she asks me to accept.

[455] I find that Dr. Goldman established a new career in a different field of endeavour following the parties’ separation. As a result, I conclude that Ms. Weiss Goldman is not entitled to share in his post-separation increases in income on the basis that there is a substantial similarity in Dr. Goldman’s pre-and post separation fields of endeavour.

[456] As with other aspects of her claim, Ms. Weiss Goldman bears the onus on this issue. She has not satisfied me that she has met that onus.

[457] In making my finding in this regard, I also rely on the decision of the Ontario Court of Appeal in Choquette v. Choquette, [2019] O.J. No. 2004, where, at paragraph 25, in response to an argument by the Appellant that, because she indirectly contributed to the support payor’s ability to earn a high income due to sacrifices made during the marriage, she was entitled to share in his substantial post-separation increases in income, Justice Miller endorsed the conclusion of the motion Judge that because the Appellant had “made no attempt to become self-sufficient, it is entirely appropriate that she not be entitled to participate in his increases in income.”

Relative Standards of Living

[458] When the parties separated, Ms. Weiss Goldman had no income to speak of. She was awarded spousal support in an amount that equated to 40% of Dr. Goldman’s salary.

[459] Now, I am imputing to her an annual non-support income of $50,500.00. The present-day value of Dr. Goldman’s income of $89,900.00 at the time of separation amounts to $139,267.58. Forty percent of that amount is $55,707.03. If one were to deduct Ms. Weiss Goldman’s imputed income of $50,500.00 from the 40% of Dr. Goldman’s present-day value of his 2001 UWO income, Ms. Weiss Goldman would be entitled to spousal support of $5,207.00 per annum, or $433.92 per month, to be in the same position that she was in as a result of the 2003 consent order. This would allow Ms. Weiss Goldman to have the same relative standard of living compared to Dr. Goldman that the original order afforded her.

Quantum and Duration of Spousal Support

[460] Using inputs of $50,500.00 income for Ms. Weiss Goldman and $139,267.58 for Dr. Goldman yields the following results under the SSAGs:

Low: $2,774.00 Mid: $3,236.00 High: $3,651.00

[461] As I have noted, the 2003 order provided Ms. Weiss Goldman with spousal support, before taxes, in an amount that roughly equated to 40% of the parties’ combined pre-tax incomes.

[462] If I utilize the parties’ 2022 incomes as determined herein (Dr. Goldman: $139,268.00; Ms. Weiss Goldman: $50,500.00), 40% of the parties’ combined pre-tax incomes equals $75,907.20. Deducting the $50,500.00 that is income imputed to Ms. Weiss Goldman, the net difference that would be required to be made up of pre-tax spousal support payments from Dr. Goldman would be $25,407.20 per annum, or $2,117.27 per month.

[463] If Divorcemate is asked to provide me with Ms. Weiss Goldman’s share of the parties’ net disposable incomes if she were to be provided with spousal support of $2,000.00 per month, the program reveals that her share of the parties’ net disposable incomes would be equal to 41.1%.

[464] If Divorcemate is asked to provide me with Ms. Weiss Goldman’s share of the parties’ net disposable incomes if she were to be provided with spousal support of $2,250.00 per month, the program reveals that her share of the parties’ net disposable incomes would be equal to 42.4%.

[465] For comparison, at the Divorcemate calculated lowest SSAG range support payment of $2,774.00 per month, Ms. Weiss Goldman’ share of the parties’ net disposable incomes would be 44.2%.

[466] The after-tax net monthly benefit to Ms. Weiss Goldman of spousal support at the low end of the SSAG range equals $1,859.00, while the after-tax net monthly benefit to Ms. Weiss Goldman of spousal support in the amount of $2,250.00 per month equals $1,503.00 – a difference of $356.00.

[467] The Ontario Court of Appeal held in Slongo v. Slongo, 2017 ONCA 272, that the Spousal Support Advisory Guidelines (SSAGs) should be utilized by courts tasked with determining spousal support unless there is a good reason not to do so. As the Court of Appeal wrote at paragraph 81, the SSAGs are “a very valuable tool for assessing a reasonable range of spousal support and should not be departed from lightly.”

[468] I note that the SSAGs were not strictly applied by the court in Politis, and the Court of Appeal found that the trial judge had not committed an error because she had adequately explained her reasons for not strictly complying with the SSAGs.

[469] As the Court of Appeal wrote in Politis:

28 The appellant is correct in pointing out that the ranges generated by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) formulas are the presumptive starting point for awarding support: McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 24; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105-106. While not binding, the SSAGs should not be lightly departed from: Slongo, at para. 105. Any departure requires adequate explanation: McKinnon, at para. 24. That being said, while the SSAGs formula offers a valuable tool in assessing a reasonable amount of spousal support, there are complicating factors that must be considered: Gray v. Gray, 2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.

29 Where, in my view, the appellant's position errs is in equating the principled guidance offered in the SSAGs as a whole with the values generated by the short-hand formulas. Those formulas are intended to be used as tools only and, according to the SSAGs themselves, cannot be applied automatically in every case.

[470] I cannot ignore the findings that I have made about the amounts paid thus far to Ms. Weiss Goldman, her substantial increase in net worth since the parties separated, and her failure to have secured full employment over the years since the parties separated.

[471] Notwithstanding, I am electing to direct the continuing payment of spousal support in an amount that reflects the findings I have made herein and the resultant Divorcemate SSAG determinations.

[472] Bearing these considerations in mind, and for these reasons, I find that it is appropriate to set spousal support in an amount that does not fully align with the SSAG formulas, while still respecting their application.

[473] Consequently, I find that the amount of support that is to be paid monthly by Dr. Goldman to Ms. Weiss Goldman commencing September 1, 2022, is $2,250.00, which is below the lower end of the SSAG range. The payments shall not be indexed.

[474] The SSAGs specify that, given the parties’ ages and the length of their marriage, spousal support is payable for an “indefinite (unspecified) duration.” The parties have agreed that spousal support payable for an indefinite period is not necessarily spousal support payable forever.

[475] Having regard to the facts of this case, particularly the length of the parties’ marriage, their relatively advanced ages, the length of time that Dr. Goldman has already paid spousal support, and my finding that Ms. Weiss Goldman, while still currently in need of spousal support, is close to being financially self-sufficient despite not having worked full-time employment over the years, I further direct that Dr. Goldman’s obligation to pay spousal support in the amount of $2,250.00 per month to Ms. Weiss Goldman shall continue until December 31, 2024, at which time his obligation will end and no further spousal support shall be payable.

[476] An order shall issue accordingly.

[477] The parties are strongly encouraged to settle the issue of costs. If they cannot, or are instructed to pursue costs, they may forward written submissions, not to exceed five typewritten pages, in Times New Roman 12-point font, at a line spacing of 1.5, to me through the Family Court Trial Coordinator at London.

[478] The parties’ submissions shall be accompanied by any offers to settle, whether accepted or not, together with a Bill of Costs identifying all persons who worked on the matter, their position, the rate being charged for their services, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.

[479] Each party shall also indicate what they have billed their own client for this matter for the period for which costs are being recovered.

[480] The submissions of Dr. Goldman are to be delivered by September 2, 2022. The submissions of Ms. Weiss Goldman are to be delivered by September 23, 2022.

[481] If no submissions are received by September 23, 2022, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.

“Justice T. Price”

Justice T. Price

Date: August 12, 2022

[^1]: According to the CRA web site - https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/sole-proprietorships-partnerships/report-business-income-expenses/claiming-capital-cost-allowance/classes.html - Classes 1 and 6 CCAs pertain to buildings; Class 8 CCAs include “some fixtures” and Class 17 CCAs pertain to, inter alia, “parking lots and sidewalks.”