Court File and Parties

CITATION: Bagust-Homes v Devine, 2023 ONSC 2978 COURT FILE NO.: FS-22-30359 DATE: 20230526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fiona Bagust-Homes, Applicant AND: Gregory Devine, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Ryan Kniznik, for the Applicant Dana Cohen, for the Respondent

HEARD: May 11, 2023

Endorsement

Nature of the Motion

1. The applicant, Fiona Bagust-Homes (“Fiona”), brings a motion for temporary child and spousal support. Fiona asks the court to impute an annual income of $200,000 to the respondent, Gregory Devine (“Greg”), for support purposes based on his historical earnings. The parties’ two children reside equally with both parents. Greg has not paid any child or spousal support since the separation on March 1, 2021.
2. Greg argues that Fiona’s motion is premature. He is currently unemployed and wishes to use the capital from his share of the net proceeds of sale from the parties’ matrimonial home to start his own business. As a result, Gregory argues his income cannot yet be ascertained. While he acknowledges that he earned significant income as a foreign exchange trader in the past, Greg submits that he has not been able to secure employment despite making efforts. He argues that whether income ought to be imputed to him is a threshold and triable issue that ought to be decided when the court has the benefit of a complete record and viva voce testimony. Greg’s position is that the parties have a scheduled Settlement Conference in June 2023 and since a trial date can be scheduled in 2024, the court ought not to make a temporary order, the effect of which could render his future business unsuccessful. Finally, Greg argues that Fiona has no need for temporary child and/or spousal support because she has received approximately $1.2 million from the net proceeds of sale and, therefore, has the means to maintain her lifestyle until a trial of this matter can be heard.
3. This matter proceeded as a long motion. In addition to affidavit evidence from both parties, the court has a transcript from Greg being questioned on February 9, 2023.

Issues to be Determined

4. The issues to be determined on this motion are: a. Should income be imputed to Greg of $200,000 a year? b. If the answer to a. above is yes, should Greg be ordered to pay temporary child support for the two children of the marriage in the set-off amount of $1,881 a month and his proportionate share, which is 63.5% of the children’s s.7 expenses? c. If the answer to a. above is yes, should Greg be ordered to pay temporary spousal support to Fiona in the sum of $3,313 a month, based on the imputed income of $200,000 a year? d. Should Greg be ordered to name Fiona as an irrevocable beneficiary of a life insurance policy with a face value of $929,626, as security for his temporary support obligations? e. Should an order for costs of this motion be made?

Background

5. The parties began cohabiting in 2002. They were married in Australia on March 4, 2006.
6. They have two children of their marriage, J., age 16, and L., age 11.
7. The parties separated after 18 years of living together, on March 1, 2021, when Greg was charged with assault with a weapon arising from an incident that took place on February 28, 2021. The criminal charges were withdrawn in June 2021.
8. After separation, Fiona continued to reside in the parties’ matrimonial home with the two children.
9. Since separation, the parties have shared equal parenting time with the children.
10. J. is currently in Grade 10 at St. Michael’s College School, at which the tuition is $24,000 a year. In Grades 9 and 10, J. received a scholarship of $10,000, leaving the parties to fund $14,000 of tuition each year for him. J. also plays rep hockey at a cost of about $6,000 a year.
11. L. is in Grade 5 at St. Michael’s Choir School, which is funded through the Toronto Catholic District School Board. Given that it is a specialized music program, the parties pay $7,500 a year in music costs each year.
12. The parties’ matrimonial home was sold, and the transaction closed on February 25, 2022. The net proceeds of sale amounted to $2,043,103.80. In April 2022, Fiona received $117,000 and Greg received $100,000. The extra $17,000 Fiona received was paid to a contractor who had completed work on the home prior to its sale.
13. On June 7, 2022, Fiona caused this applicant to be issued, in which she sought, among other things, a divorce, income imputation for Greg, child and spousal support retroactive to the date of separation and security for support.
14. On September 9, 2022, Greg served and filed his Answer and Fiona filed her Reply on October 12, 2022.
15. On October 24, 2022, the parties attended a case conference before Brownstone, J., at which a consent order was reached setting out that out of the net proceeds of sale of the matrimonial home, Fiona was to receive $913,000; Greg was to receive $663,000 and the balance of the proceeds were to remain held in trust by the real estate lawyer.
16. In total, Fiona received $1,030,5510.90 from the net proceeds of sale, with $17,000 going to a contractor who completed work on the home. Greg has received $763,051.90.
17. On December 12, 2022, the parties attended mediation with Kelly Jordan, at which Partial Minutes of Settlement were signed resolving the property division issues. As a result of this settlement, Fiona received an equalization payment of $170,000 from Greg, which he paid out of his share of the net proceeds of sale.
18. There remains approximately $80,000 of net proceeds which are being held in trust by the real estate lawyer, which belong to Greg.
19. For the past 13 years, Fiona has been employed as a Volunteer Coordinator at Eastview Neighbourhood Community Centre. Fiona works part-time. In 2022, she earned $52,424; in 2021, she earned $49,912; in 2020, she earned $58,571; and in 2019, she earned $42,905. Her income in 2020 was significantly higher because in the year of the Covid-19 pandemic, Fiona worked longer hours.
20. Greg worked in the banking industry as a foreign exchange (“FX”) trader at TD Securities and RBC He is currently unemployed and has not worked since May 2018 when he was terminated from TD Bank. In earlier years in the marriage, Greg earned significant income. For example, in 2011, Greg’s income was $868,788.96; and in 2013, he earned $541,166.40. In 2017, Greg was terminated from RBC and received a severance of $400,000. He then returned to work at TD Securities from September 2017 to May 2018, when he was terminated from TD. He received a severance when he was terminated from TD, which was paid to him until January 2019. Greg’s Answer sets out that, as an FX trader, he earned approximately $350,000 a year.
21. There are no health issues preventing Greg from being able to work.
22. Greg has recently started his own business, Devine Capital Management. His first phase of business is to invest his own funds from the house proceeds, namely $500,000, to grow the capital through regular trading. The second phase of his business is to expand to third party clients. When questioned, Greg acknowledged that he has not yet earned any income, but he believes he will be able to earn at least $75,000 this year.
23. Greg has not paid Fiona child or spousal support since the separation.
24. Both parties reside in rental homes. Fiona’s rent is $4,000 a month and Greg’s rent is $3,800 a month. The parties have been paying for the children’s expenses in each of their homes. They have also been equally sharing the children’s s.7 expenses since separation.
25. Fiona wishes to purchase a home for herself and the children. She is, however, unable to qualify for a mortgage given her income since there is no current support agreement or order in place.
26. Greg does not dispute that Fiona has entitlement to spousal support. Nor does he dispute that he has an obligation to pay child support. Further, Greg does not oppose being imputed with an income for support purposes. He submits, however, that if income is imputed to him, it should be no more than $75,000 a year.
27. Greg refuses, however, to pay voluntary child or spousal support.[^1]
28. Given the non-payment of child and spousal support, Fiona has had to use capital to pay for her and the children’s living expenses, as well as to fund this litigation.
29. Greg maintains that the family has been living beyond their means for years. He submits that they have lived off capital for the next number of years and they are both in the same situation currently and need to rely on capital to meet their living expenses.

Issue One: Should income be imputed to Greg of $200,000 a year?

30. Fiona seeks an order that Greg be imputed with an annual income of $200,000 for support purposes. She asks that this order be without prejudice to his right to argue that his income should be lower and her right to argue that his income should be higher, retroactively, and prospectively.
31. Fiona argues that the correct amount of income to be imputed to Greg should not be $75,000 as he proposed, but $200,000 for the following reasons: a. Greg is highly educated, is in great health, has background work experience and is only 51 years of age. b. Greg has a Bachelor of Commerce degree, a Chartered Financial Analyst designation and is a Chartered Market Technician. His CFA and CMA designations are up to date. c. From 1998 or January 2011, Greg was a spot trader at TD Securities and became the director of foreign exchange. He estimated that his 2010 income was between $450,000 and $500,000. d. From March 2011 to October 2016, Greg left TD to work at RBC. He started in a director level position and moved into the emerging market side at the Director level. When he moved from TD to RBC, he received an incentive bonus of $500,000. He was the Direction of FX Trading at RBC. e. Greg was let go from RBC and was unemployed from October 2016 to September 2017; f. From September 28, 2017 to May 2018, Greg was the Vice-President of FX Spot Trading at TD bank. Greg was terminated from TD in May 2018. He received a severance when he was terminated from TD which was paid to him until 2019. g. Greg has not worked since May 2018, namely, for the past 5 years. h. Greg deposes that he has tried to find employment at hundreds of institutions/banks/corporations but, he has not been successful in finding a position. i. According to Greg’s income tax returns or Notices of Assessment, Greg’s income from 2011 to 2021 was as follows: i. In 2011, Greg earned $868,788.96; ii. in 2012, he earned $486,572.89; iii. in 2013, he earned $541,166.40; iv. in 2014, he earned $438,459.91; v. in 2015, he earned $356,415; vi. in 2016, he earned $313,628.78. vii. In 2017, he earned $82,101.54. viii. In 2018, he earned $142,425.98; ix. In 2019, he earned $72,500; x. In 2020, he earned $20,000 and xi. In 2021 he earned $18,600. j. The job website, Glassdoor, shows that individuals employed at TD in Vice President Sales and Trading Sales positions earn a base salary between $198,060 to $213,497, with cash bonuses showing salaries of $264,000 to $290,000. k. Greg’s explanation for not working over the past 5 years was that he managed a renovation on the matrimonial home, which was purchased in 2019 and sold in February 2022. Fiona disputes that Greg “managed” the renovation or that his involvement did not allow him to work. Despite Greg’s assertions, the parties hired and retained a third-party contractor to complete the house renovations and Greg confirmed during his Questioning that he did not perform any physical renovations on the home.
32. Fiona does not believe that Greg has provided sufficient evidence of his job search. The consent order of Brownstone, J., dated October 24, 2022, requires Greg to produce all evidence of his job searches for the past four years to date, including all responses received, all job applications, details of any job offers and his response to the job offers.
33. Greg instead produced an excel spreadsheet listing 235 names of companies, roles, and people. He deposes that these are the places he has spoken to in his effort to become employed. Greg has not provided any evidence that he has applied for jobs at these listed companies. Nor, has Greg provided any evidence of his communication with any of the organizations on his list. Fiona argues that during his Questioning, Greg acknowledged that he communicated with these institutions and undertook to produce copies of these communications but, has failed to do so.
34. According to Fiona, the line of credit registered on title to the house had a balance of $448,658.26 on the date of separation. Between the date of separation, February 2021, and February 2022, when the matrimonial home sale closed, the line of credit increased by $263,294.38 to $711,952.64, of which $191,725.30 was used by Greg post-separation; $32,316.95 was used by Fiona; and $39,955.30 was used by the parties jointly ($19,977.65 each). The post-separation adjustments in terms of the line of credit remain outstanding and are a triable issue.
35. Greg used the line of credit to pay for his rent while he was out of the home because of his criminal undertaking of about $36,000; he withdrew $48,000 from the line of credit two days before the matrimonial home sale closed; $4,407 he used to pay his criminal defence counsel and $5,000 was used to pay his family lawyer.
36. Greg’s current work plan is to use $500,000 from the $763,051.90 from the net proceeds of sale he received for day trading. Greg deposited these funds ($500,000) into an account with Interactive Brokers Inc. which he opened in January 2023. He hopes to day trade using this capital and perhaps market to external clients. For the period January 24, 2023 to March 28, 2023, Greg produced a portfolio document which shows that he cumulatively lost 1.59%, as the current balance is $492,066.11.

The Law

37. When determining whether to impute income to a payor, the court has regard to s.19 of the Federal Child Support Guidelines, S.O.R. /97-175 (“CSG”), which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.
38. In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, Gilles, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed: a. Is the spouse intentionally under-employed or unemployed? b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs? c. If no, what income is appropriately imputed in the circumstances?
39. The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.
40. “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this legal obligation, a parent must earn what he or she is capable of earning”: Drygala, at para. 32.
41. In terms of what income is appropriately imputed in the circumstances, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, at para. 33.
42. The test for imputing income for child support purposes applies equally for spousal support purposes: Di Sabatino v. Di Sabatino, 2022 CarswellOnt 383 (S.C.J.), para. 49, leave to appeal refused 2022 CarswellOnt 7089 (Div. Ct.).
43. Greg submits that Fiona has not met her onus to prove he is intentionally unemployed, nor has she provided an evidentiary basis for that finding as required in Wilton v. Myhr, 2019 ONSC 77.
44. In this case, Greg is intentionally unemployed. He is not unemployed because of a physical or mental health circumstance. Rather, this is his choice. As a rule, a parent cannot avoid child support obligations by a self-induced reduction of income: Drygala, supra, para. 38.
45. Greg is not earning what can be earning to meet his support obligations, since he is not earning any time.
46. A decision to pursue self-employment where a payor earns no income, is not a reasonable choice. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children.: Norris v. Riley, 2023 ONCJ 121, at para. 95 (g) and 98(c).
47. However, income cannot be imputed to a party without there being sufficient evidence to ground an income to impute. The party attempting to impute income must provide a breakdown of how the figure being sought to impute was calculated. While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610.
48. The onus is on Fiona, since she is seeking the imputation, to “establish an evidentiary foundation for the intentional unemployment or under-employment: employment”: McNeil v. Dunne, 2019 CarswellOnt 6388 (S.C.J.), para. 50. The spouse need only show a prima facie case: McNeil v. Dunne, supra, para. 72. Once established, the burden shifts to the other party “to satisfy the court as to their income level and that income should not be imputed”: A.E v. A.E., 2021 CarswellOnt 18880 (S.C.J.), para. 258. In other words, “the onus shifts to the individual seeking to defend the income position they are taking”: McNeil v. Dunne, supra, para. 72.
49. Based on Greg’s historical earnings, Fiona submits that an annual income of $200,000 is appropriate to impute to Greg. She relies on Dunne v. McNeil, in which the Divisional Court reiterated that sometimes prior employment income is a rational and sufficient basis for quantifying imputed income. In Lawson v. Lawson, the Court of appeal found no error “in the trial judge basing the appellant’s imputed income on his average income for the three years prior to separation and found it was reasonable in the circumstances, para. 38.
50. In reference to the third question in the analysis, namely what income to impute, the court has “wide discretion”: A.E v. A.E., supra, para. 262(2)(c). The Court considers the evidence, and when selecting a number, “must consider what is reasonable in the circumstances”, looking at, for example, “age, education, experience, skills and health of the parent”: Drygala v. Pauli, supra, paras. 44-45.
51. The Court can consider historical earnings or prior employment income as a basis for imputing income: Drygala v. Pauli, supra, para. 46; Dunne v. McNeil (Div. Ct.), supra, para. 8; Lawson v. Lawson, supra, para. 38.
52. When considering income imputation, the person asking to impute income does not need to “point to an available job or jobs that meet his qualifications and set out the remuneration”: McNeil v. Dunne, supra, paras. 71-73. The threshold is not this high, and “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”: McNeil v. Dunne, supra, para. 74.
53. Between 2011 and 2016, Greg earned an average of $500,840.32 as an FX trader. Fiona recognizes that Greg has not worked in the past 5 years. For that reason, she submits it is appropriate that he be imputed with an income of $200,000, less than half of what he was earning on average.
54. Even if historical earnings are not sufficient, Fiona did show some evidence of the range of income someone with Greg’s experience could earn. Note, however, that the Divisional Court in Dunne v. McNeil (Div. Ct.) specifically directed the following (emphasis added): The Motion Judge properly rejected the Appellant's argument that the Respondent had failed to meet an onus of proof on the issue of quantifying his imputed income. Drygala imposes no such obligation on her and the weight of subsequent jurisprudence explains why it would be unfair to impose such a burden on the support recipient when all the information and evidence is within the knowledge and control of the payor : Dunne v. McNeil (Div. Ct.), supra, para. 9
55. As held by Minnema J. in McNeil [S.C.J. level]: “…It would be unfair to allow the respondent to sit back, do nothing, and simply rely on the onus to defeat the imputation claim and therefore his spousal support obligation. The applicant is not his employment agency…”: McNeil v. Dunne, supra, para. 73.
56. Greg is self-employed by his own choice. He ought not to be excused from his child support obligations or to have these obligations reduced where a party has persisted in an un-remunerative employment. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments. If a party chooses to pursue self-employment, the court should examine whether this choice was a reasonable one in all the circumstances and may impute an income it is determines that the decision as not appropriate having regard for the parent’s child support obligations: Norris v. Riley, supra, paras. 98(b)-(c).
57. In all these circumstances, I find it is appropriate to impute Greg with an income of $200,000 a year for support purposes.

Issue Two: Should Greg be ordered to pay temporary child support for the two children of the marriage in set-off amount of $1,881 a month and his proportionate share, which is 63.5% of the children’s s.7 expenses?

58. The children reside equally with the parents. As indicated above, each party’s housing costs are roughly equal with Greg’s rent at $3,800 a month and Fiona’s rent at $4,000 a month.
59. To date, the parties have paid for the children’s expenses incurred in his/her house.
60. The parties have also equally shared the cost of the children’s private school tuition and extra-curricular activities.

The Law

61. Pursuant to s.9 of the CSG, if each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by considering: a. The amounts set out in the applicable tables for each of the spouse; b. The increased costs of shared parenting time arrangements; and c. The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
62. Fiona seeks an order that sets off each of her and Greg’s table child support obligation based on her income of $52,424 and Greg’s imputed income of $200,000 a year. For two children, on an income of $200,000, Greg would be obliged to pay table child support of $2,677 a month. On an income of $52,424, for two children, Fiona would be obliged to pay table child support of $796 a month. Accordingly, based on the set-off of the table amounts each party would owe the other, Greg would have to pay Fiona child support of $1,881 a month.
63. The seminal case that addresses the analysis required to be undertaken by the court in a s.9 analysis is Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) (“Contino”), in which the Supreme Court of Canada held that the framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of child support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The case law under s.9 of the Guidelines suggests that the weight of each factor under s. 9 will vary according to the particular facts of each case.
64. The Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children. A “set-off” is not presumptive.
65. Section 9(a) requires the Court to determine the parties’ incomes and calculate the simple set-off, as the “starting point” of the s.9 analysis. However, the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.
66. Further, according to Contino, section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. Contino explains that the Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the childcare expenses will be apportioned between the parents in accordance with their respective incomes.
67. Neither party led any evidence about having increased costs because of the shared custody arrangements. The evidence on record provides that the parties have roughly the same housing costs. In terms of looking at the ratio of incomes between the parties, in these circumstances, given that income is being putting to Greg of $200,000 and Fiona earns $52,424 a year, there is nothing indicating that discretion should be exercised to reduce the child support owing to Fiona lower than the strict set-off of the table amounts.
68. Last, section 9(c) allows the Court discretion to conduct an analysis of the resources and needs of both parents and the children. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection: a. Actual spending patterns of the parents; b. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and c. Standard of living for the children in each household.
69. The Court has discretion to assess the ability of each parent to assume any increased costs of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.
70. The Court is required to review the child expense budgets and consider both fixed and variable costs. It is possible to presume, in the absence of evidence to the contrary, that the recipient parent's fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access. Thus, when no evidence is adduced, the Court should recognize the status quo regarding the recipient parent [in the instance matter, Fiona].
71. The Court has full discretion under s.9 (c) to consider “other circumstances” and order the payment of any amount, above or below the table amounts. This discretion, if properly exercised, should not result in hardship. Further, given the broad discretion of the Court conferred by s. 9 (c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the Guidelines can be examined directly under s. 9 with consideration of all the other factors. Section 9(c) is conspicuously broader than s. 7.
72. Fiona’s budget set out in her financial statement, sworn on April 14, 2023 lists her monthly expenses as $13,510, of which $400 relates to the children’s entertainment/recreation; $1,500 relates to school fees and supplies; $200 relates to the children’s clothing $840 relates to the children’s activities; $550 relates to the children’s summer camp expenses; $80 relates babysitting, not including the cost of housing and groceries for the children.
73. Greg’s financial statement, sworn on May 2, 2023, shows a far lower budget than Fiona’s, at $9,908 a month. The cost of the children’s education is listed at $1,790 a month; entertainment and recreation which includes the children is listed at $200 a month; clothing for children at $100 a month; and hockey at $500 a month.
74. Based on the budgets put forward in each party’s financial statement, Fiona spends $340 more each month on children’s activities, which amounts to $4,080 more each year than Greg. She also pays $6,600 a year on children’s summer camp fees and $1,200 more each year on children’s clothing. Neither party argued that his or her expenses where higher or that his/her standard of living was negatively impacted on account of the shared parenting arrangement.
75. Fiona’s affidavit sets out that she has invested $800,000 of the proceeds she has received in a GIC earning 3.10% which matures on March 28, 2024. She can remove the funds from the GIC with no penalty but if the funds are not removed until maturity, she will earn interest of $24,867.95. Her hope is to remove the funds to purchase a home for her and the children. She will not be able to do if she needs to draw on capital to meet her and the children’s expenses.
76. In these circumstances, I find that it is appropriate for Greg to pay Fiona child support based on setting-off the table amounts using the imputed income of $200,000 for Greg and Fiona’s actual income of $52,424, which amounts to Greg paying Fiona child support of $1,881 a month.

Issue Three: Should Greg be obliged to pay temporary spousal support to Fiona in the sum of $3,313 a month, based on the imputed income of $200,000 a year?

77. Fiona is seeking temporary spousal support using the high-end of the Spousal Support Advisory Guidelines (“SSAGs”) and an imputed income of $200,000 for Greg and her reported income of $42,424 in 2022 for her.
78. Greg does not dispute Fiona’s entitlement to spousal support. However, he argues that a motions judge should approach a temporary motion or spousal support with caution, particularly, in a case such as this, where there is a threshold issue about imputation of income.
79. There is no dispute that during this marriage, Fiona was the primary parent to the children. She was involved in their day-to-day parenting, school pick-up and drop-off, preparing their meals, taking the children to their extra-curricular activities and to all their appointments. Fiona worked part-time so she could be present for the children and manage the household, allowing Greg to focus on his career where he earned significant income. Further, Fiona was entirely financially dependent on Greg, and he was the primary income earner.
80. The parties lived a very nice lifestyle. They lived in large homes, went on trips regularly, and purchased what they wanted to. Both parties now live in rental accommodations and are depleting capital from the matrimonial home sale to meet their respective lifestyles. Fiona has continued to work part-time, whereas Greg is choosing not to work and hoping to earn income from day trading.
81. Greg relies on Lewis v. Lewis at paragraph 65 (a), which provides that while Parliament has prescribed the same factors to be considered for both final and interim support orders, different considerations will apply for interim orders than for final orders. A trial judge is in a much better position to assess the appropriate amount of support as well as any issue of retroactivity. A motions judge should approach the issue with some caution. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, it becomes less advisable to order interim support.
82. Greg also relies on the legal principles which govern interim support motions as set out in paraph 14 of Driscoll v. Driscoll, arising from Robles v. Kuhn, 2009 BCSC 1163 as follows: a. On applications for interim support, the applicant’s needs and the respondent’s ability to pay assume greater significance; b. An interim support order should be sufficient to allow the applicant to maintain the same standard of living prior to separation if the payor’s ability to pay warrants it; c. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best. d. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise. e. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out. f. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support; Giglio v Giglio, 2015 ONSC 8039.
83. Greg argues that while a court may impute income to a party in the context of a motion for temporary support, the court should exercise caution in doing so having regard to limitations on the court’s ability in the context of a motion to obtain and complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households: Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 24.
84. Interim Motions are intended to provide short-term stabilizing relief to allow parties to maintain their lives while waiting for a trial, at which there will be a more complete opportunity to fully present, canvas and test all the evidence. If our court system allows for earlier trial dates, parties should take advantage of this rather than asking that judges make extremely complicated determinations based on imperfect and inadequate affidavit evidence on a motion. Gafanha v. Gafanha, 2022 ONSC 1613, at para. 17.
85. Greg’s position is that the parties have a settlement conference scheduled for June 21, 2023. Once that conference has taken place, a Trial Management Conference (”TMC”) can be scheduled, and a trial date can likely be booked in 2024. He argues that since a trial date is available in 2024, it would be premature for the court to make an interim order for spousal support now, particularly, since the court only has a written record before it.
86. Further, since Greg has no actual income, if ordered to pay temporary spousal support, he would have to make these payments from capital. He submits that a general principle of interim spousal support is that the payor spouse should not be required to pay such support from his or her capital. An order for interim spousal support which would require that it be paid from capital should only be made where the recipient requires such funds to maintain a minimal standard of living. This is especially so if the parties have financed their lifestyle in the past from capital. Plaxton v. Plaxton.
87. Greg also argues that interim spousal support motions are not the place to impute income. He proposes that where there are serious credibility issues as to whether a party has maximized his or her income, the issue of imputation of income is an issue which must be left for trial. On a motion, evidence on income must be taken at face value with contested evidence on imputation of income to be left to the trial judge; Lam v. Watt, 2017 ONSC 5838; MacIntyre-McAlear v. McAlear, 2018 ONSC 1395; Barber v. Edwards, 2019 ONSC 4637.
88. Greg’s position is that in a case where there is a real threshold issue as to support and the applicant has assets sufficient to allow a reasonable lifestyle until trial, it is better to leave the issue to a trial judge. If Fiona is found to be entitled to support at trial, the award can be made retroactive to replenish the capital utilized by her until trial, but if a temporary support order is made, Greg argues that he can never recoup the loss if Fiona is found not to be entitled to support at trial; Tout v Bennett.
89. The SSAG calculation prepared by Fiona, attached as Exhibit “E” to her affidavit, demonstrates that if Greg is imputed with $200,000 as income, Fiona earns $52,424, and Greg pays Fiona set-off child support of $1,881 a month, the low-end of the SSAG range is $2,128 a month; the mid-end of the SSAG range is $2,721 a month; and the high-end of the SSAG range is $3,313 a month. Fiona seeks a temporary spousal support order on the high-end range of the SSAGs given her compensatory claims. The high-end of the SSAG range, leaves Fiona with 53% of the parties’ net disposable income (“NDI”) and Greg with 47% of the NDI. The mid-end of the SSAG ranges, leaves Fiona with 50.7% of the NDI and Greg with 49.3% of the NDI.
90. In these circumstances, I do not find that it is reasonable for Fiona to be left with a higher percentage of the parties’ NDI than Greg, given that the children reside with the parents equally. This does not translate into Fiona not having a compensatory spousal support claim. Rather, the purpose of an interim spousal support order is to establish a stable situation pending trial. Whether or not Fiona is entitled to the high-end range of the SSAGs will be determined at trial.
91. Accordingly, I find that Greg ought to pay Fiona temporary spousal support in the sum of $2,534 a month, which results in each party being left with 50% of the NDI, which translates into each of them being left with $7,657 a month as net income.
92. In terms of the sharing of the children’s s.7 expenses, once Greg pays Fiona spousal support in the sum of $2,534 a month, her proportionate obligation would be to pay 32.8% of the children’s s.7 expenses and Greg’s proportionate responsibility would be 67.2% of these expenses. On a temporary basis, the parties shall share the s.7 expenses equally, subject to reapportionment at trial.
93. Given that Greg has $80,000 of his sale proceeds being held in trust, it is a practical solution for his temporary child and spousal support obligations to be paid out of this fund pending the trial of this matter. The combined child and spousal support monthly obligation of Greg amounts to $4,415 a month, without considering the income tax deduction to which Greg may be entitled. That amounts to 18 months of temporary support. That would allow the parties to have their Settlement Conference be heard and a TMC and schedule a trial by the end of November 2024, before the $80,000 runs out.
94. In this manner, Greg will be able to decide whether he wishes to continue with his plan to utilize $500,000 of capital from the matrimonial home proceeds to earn income from trading and this temporary child and spousal support order will not interfere with his business plan.

Issue Four: Should Greg be required to name Fiona as an irrevocable beneficiary of a life insurance policy with a face value of $929,626, as security for his temporary support obligations?

95. Greg’s financial statement sworn on September 9, 2022, demonstrates that he has a policy with RBC naming Fiona as beneficiary for $500,000.00. She is asking that the insurance coverage be $929,626.00 and that she be named irrevocably beneficiary.
96. Without having sufficient evidence about whether Greg is eligible to obtain more insurance, I find that until further order of the court or agreement of the parties, Greg ought to maintain Fiona as the irrevocable beneficiary of his life insurance policy with a face value of $500,000. If for any reason, Greg’s policy coverage changes, he shall promptly notify Fiona and take steps to put in place replacement coverage immediately. Within 15 days of the release of this Endorsement, Greg shall provide Fiona with a copy of the insurance policy and beneficiary designation.

Disposition

97. Based on the above, this court makes the following temporary order on a without-prejudice basis to either party arguing there should be a retroactive adjustment upward or downward at trial: a. Pursuant to s.15.1 of the Divorce Act and s.9 of the Child Support Guidelines, commencing on May 1, 2023 and on the first day of each following month until further court order or agreement of the parties, Greg shall pay Fiona temporary child support, as a set off of what he and Fiona would each owe the other pursuant to the tables, for the two children of the marriage, in the sum of $1,881 a month, calculated as follows: i. On an imputed income of $200,000, Greg owes Fiona table child support for the two children in the sum of $2,677 a month; ii. On an income of $52,424, Fiona owes Greg table child support for the two children in the sum of $796 a month; iii. The set-off of the table child support results in Greg paying Fiona child support in the sum of $1,881 a month. b. Pursuant to s.15.1 of the Divorce Act, commencing on May 1, 2023 and on the first day of each following month or agreement of the parties, Greg shall pay Fiona temporary spousal support in the sum of $2,534 a month. c. Pursuant to s.15.1(1) and (3) of the Divorce Act, commencing on May 1, 2023, the parties shall equally share the children’s s.7 expenses. d. Greg shall make the temporary child and spousal support payments to Fiona from the net proceeds of sale which are currently being held in trust by the parties’ real estate lawyer and both parties shall sign an Authorization and Direction directing the real estate lawyer to pay Fiona temporary child and spousal support each month from the net proceeds of sale being held in trust. e. Greg shall provide Fiona with a monthly summary of all steps he has taken to obtain employment, including providing a list of the places he has applied to, copies of all correspondence (text or emails) with any third parties he has spoken to about future employment, copies of all offers of employment, etc. f. Greg shall continue to name Fiona as the irrevocable beneficiary of his life insurance policy with a face value of $500,000 as security for his spousal and child support obligation. He shall provide Fiona with a copy of the beneficiary designation and proof that the policy remains in good standing. g. An SDO shall issue. h. The parties are encouraged to reach an agreement about the costs of this motion. If they are unable to do so, Fiona shall submit written costs submissions of no more than 3 pages in writing, not including Offers to Settle and/or a Bill of Costs by June 5, 2023. Greg shall submit responding costs submissions of no more than 3 pages in writing, not including Offers to Settle and/or a Bill of Costs, by June 12, 2023. Reply submissions, if any, shall be no more than 1 page in writing and served by June 15, 2023.

M. Kraft, J. Date Released: May 26, 2023

[^1]: Pp. 76-77 W. 406; p. 78. Q. 412; p. 79, Q. 417-418.