Court File and Parties

Court File No.: FS-20-00019909 Date: 2023-05-25 Ontario Superior Court of Justice

Between: Lauren Baswick, Applicant And: Adam Kahn, Respondent

Counsel: Christine Marchetti and Katie Conway, for the Applicant Stacie Glazman, for the Respondent

Heard: February 6, 7, 10 and 22, 2023 Justice: M. Sharma

Judgment

[1] This judgment concludes a four-day trial.

[2] The parties had resolved significant issues before trial, including parenting and property issues, reflected in various Partial Minutes of Settlement.

[3] The parenting schedule has the children residing equally with both parties. Their interim settlement with respect to child support uses a set-off formula, without adjustment, resulting in the Applicant paying the Respondent child support in the amount of $637 per month.

[4] The remaining issues in disputes are raised by the Respondent. He seeks spousal support. If spousal support is not granted or not adequate to sustain a 50% Net Disposable Income (“NDI”) in both households, he seeks child support in an amount pursuant to s. 9 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) up to full table support payable by the Respondent. He also seeks a determination of the Respondent’s income, which will impact the child support payments he receives and the proportionate sharing of extraordinary expenses under s. 7 of the Guidelines.

[5] With no disrespect to either party, in my Judgment, I refer to the Applicant as Lauren and the Respondent as Adam. This is how they were often referred to at trial.

[6] I disagree with an approach that would have this Court determine spousal support before determining child support. The Divorce Act specifically directs this Court to prioritize child support over spousal support when determining applications for both types of support: (s. 15.3(1)). Furthermore, s. 15.2(6)(b) of the Divorce Act requires the court to consider, as one objective of a spousal support order, the apportionment between spouses of the financial consequences of caring for a child, over and above any obligation for the support of a child. Therefore, it is necessary and appropriate to determine Lauren’s child support obligations under s. 9 of the Guidelines first.

[7] Accordingly, the issues to be decided, and in the following order, are:

a. What is Lauren’s income for the purpose of determining any spousal or child support, including s. 7 expenses? b. What is the amount of child support that should be due and payable under s. 9 of the Guidelines? c. Is Adam entitled to spousal support on a compensatory or non-compensatory basis? d. If Adam is entitled to spousal support, what is the quantum and duration of spousal support?

Overview

[8] The parties started dating in or around 2010. At the time, Lauren had few savings. Adam had equity in a condominium that he owned, plus some RSP savings.

[9] In 2012, the parties were engaged to be married. Adam sold his condominium. The equity from the condominium was used to purchase a house the parties owned as joint tenants on Palmerston Avenue in Toronto (the “Matrimonial Home”). The Matrimonial Home was purchased on June 1, 2012.

[10] Adam suffered from mental health challenges, which manifested shortly after the Matrimonial Home was purchased and was undergoing renovations. These challenges are relevant to Adam’s claim for spousal support.

[11] The parties were married on April 6, 2013. Around this time, the evidence was largely undisputed that (a) both parties shared in household chores, such as shopping, cooking, laundry, and cleaning, although they were assisted by a cleaner who came to the home every two weeks, and (b) that Adam largely did the yard maintenance work.

[12] The couple had unsuccessful pregnancies in 2013. Lauren required surgery after an ectopic pregnancy in that year. In 2015, the couple sought to have children through in vitro fertilization. Lauren became pregnant with twins.

[13] During the pregnancy, the parties jointly attended medical appointments. Lauren stated, however, that Adam only attended the “big appointments” and not the routine ones.

[14] The pregnancy was not uneventful. Lauren developed gestational diabetes and was placed on bed rest. During this time, she testified that she continued to work from home until three days before the children were born. She further testified that Adam provided much support during this time, cooking, shopping, and tending to household matters.

[15] On March 28, 2016, the parties had twin children: E and H. There were born prematurely and required hospital stays for several weeks.

[16] When the children first came home, both parents were very involved with the care of the children. They were also supported by a night nurse and in the summer of 2017, a neighbourhood student also assisted twice a week.

[17] Both parties work in advertising and public relations. Around the time of the birth of the children, Lauren worked at SickKids Hospital. Adam had various jobs during the parties’ relationship as a senior copywriter; some were full-time positions, some were contracts, and sometimes he worked as a freelancer. There were also periods of unemployment.

[18] Lauren took 14 months of maternity leave after the children were born in March 2016. Adam did not take any parental leave, except for one week.

[19] In the first year of the children’s life, the parties had arguments. Lauren began attending counselling. She testified that she realized at this time that she had been in an abusive relationship. The parties had attended marital counselling before the children were born, but only once after.

[20] There is some dispute as to the roles the parties played in caring for the children and in maintaining the home from the time the children were born until separation. As I explain, the parties’ testimony differs marginally in terms of the roles they played.

[21] When Lauren returned to the workforce in September 2017, her position at SickKids was no longer available. She started a contract at Narrative, and later assumed a position as an employee.

[22] Lauren’s evidence was that since both parties intended to work full-time, and therefore would require care for the children during the day, they had explored hiring a nanny versus enrolling the children in daycare. They decided to enroll the children in daycare because it was more affordable.

[23] The children began attending daycare in September 2017. Adam was not working at the time, although he resumed working in November 2017. Lauren’s evidence was that even though Adam was not working in September 2017, they still proceeded to have the children attend daycare because they did not want to lose the children’s spots.

[24] The children continued to attend daycare until the COVID-19 pandemic caused the daycare to close. The daycare would then open and close, pursuant to public health guidelines. The parties’ evidence was generally consistent –Lauren mostly dropped off the children at daycare, and Adam mostly picked the children up from daycare. If Adam was working, he would pick up the children around 5 p.m., or around 3 p.m. if he was not working.

[25] Lauren’s evidence was that her work provided flexibility that allowed her to take the children to doctor or dentist appointments, and that she mostly performed this function. She acknowledged that Adam largely made dinner and fed the children, and she said that she regularly participated in the bedtime routines as she had not seen the children during the day. She said that they would both wake in the night if the children needed them. If the children were sick, she would try to stay home, but acknowledged that Adam would care for them too if he was not working.

[26] During the pandemic, when the parties were both working, they would try to coordinate their schedules so that they had scheduled breaks during the day when they would each be principally responsible for caring for the children. At the start of the pandemic, Adam had recently started a new position. Both parties testified that Adam’s employer was less accommodating around his parental duties. He lost this job in August 2020. Thereafter, he had various jobs.

[27] On August 28, 2020, the parties separated, although they continued to live separate and apart in the Matrimonial Home until it was sold on February 3, 2022.

[28] The children began to attend school in September 2020.

Credibility

[29] I found both parties to be credible. The content of their answers was logically consistent and appeared to be genuine. Where they gave answers that may not have been accurate, those inaccuracies were on minor issues and understandably not subject to immediate recollection (e.g., date when children first attended school; whether certain information was disclosed and when). As I explain, there were surprisingly few areas of factual inconsistencies in the parties’ respective testimony. I accept that both parties were nervous when giving evidence, and were also frustrated with the process, notably, the allegations about excessive or insufficient disclosure.

Analysis

Issue 1: What is Lauren’s income for the purpose of determining any spousal or child support, including s. 7 expenses?

[30] There was a lot of argument and evidence with respect to whether Lauren provided sufficient disclosure of her income, and whether income should be imputed to Lauren under s. 19 of the Guidelines. The dispute was primarily about (a) whether expenses incurred by Lauren for which she was reimbursed by her employer were purely business expenses or whether any resulted in personal benefits; and (b) the timing and sufficiency of disclosure from Lauren.

Employment Expenses

[31] At the conclusion of trial, Adam appeared to accept that a significant portion of Lauren’s expenses submitted to her employer for reimbursement were legitimate business expenses. However, he sought an order that $1,000 of those expenses be imputed as income to Lauren, given that there must be some personal benefits which Lauren received. Examples included drinks or dinners she received while dining out with clients or co-workers, leftover pizza that she takes home following a work-related event, or billing a take-out dinner to her employer that was purely personal and enjoyed at home with family members.

[32] For the reasons that follow, I decline to impute amounts to Lauren’s income.

[33] I find that Lauren’s 2022 income for support purposes is $162,810. This amount reflects her base salary of $150,000, plus amounts she receives for her cell phone, an RRSP matching program, short term disability, and her health benefits.

[34] I am not persuaded that further income should be imputed to her. Lauren is not self-employed; she is a T4 employee. Ms. Colleen Peddie, the Chief Financial Officer for Lauren’s employer, Tedium, was called as a witness. Lauren and Ms. Peddie both testified with respect to the nature of the Lauren’s remuneration and her business expense claims. I am not satisfied that Lauren has submitted expense claims to her employer for charges that were personal and which constitute non-taxable benefits. Ms. Peddie testified that Lauren’s expense claims are reviewed and approved by her supervisor. With this safeguard in place, it is highly unlikely that personal expenses would be approved by her employer. There was no evidence that personal expenses were submitted by Lauren and reimbursed to her.

[35] While there are significant amounts that Lauren submits each year through her employer as business expenses (in 2022, $10,850 in business expenses were submitted), this was fully explained at trial by Ms. Peddie. Employees are regularly asked to incur expenses for the employer. A process is in place for the employer to reimburse such expenses. Before reimbursement is made, the expenses are reviewed and approved as business expenses by Lauren’s supervisor. Reimbursement payments back to employees are not part of the employee’s compensation; rather, they are intended to make the employee whole for expenses incurred for the business.

[36] There may be some modest personal benefits to Lauren. For example, Lauren may occasionally take left-over food home from a work event, she may accumulate points on her personal credit card for charges that were purely employment related, or she may enjoy a nice meal at a restaurant while attending a client meeting or work-related function.

[37] However, for the Court and parents with support obligation to go through the minutiae of trying to value these types of personal benefits is inconsistent with section 1 (b) of the Guidelines, which states that an objective is “to reduce conflict and tension between spouses by making the calculation of child support orders more objective.”

[38] By their nature, these sorts of benefits are difficult to value and the process to value them is disproportionate to the result. Should support payors take photos of leftover food they take home from a work event to try to value it? Should parties, as part of their standard disclosure, produce credit card statements so that an accounting of credit card points earned for work related expenses can be determined, and then valued? If these steps were required of support payors, it would increase, not reduce, conflict and tension between parents. It would also result in a laborious process that is disproportionate to the result, and inconsistent with the primary objective of the Family Law Rules.

[39] Of course, if there are regular and easily quantifiable non-taxable benefits that an employee receives, they should be included in their income. For example, a cell phone or company car paid for by an employer. In this case, Lauren has included her cell phone in her income as a non-taxable benefit. She has also included the employer’s portion of her health benefits within her income, which is not always done by support payors.

Sufficiency and Completeness of Disclosure

[40] There was also a great deal of evidence and argument with respect to whether Lauren had met her obligations to disclose financial information. Adam argued strenuously at trial that there were insufficient disclosure and improper refusals to disclose certain information, such as bank and credit card statements after 2021, expense reports for 2021, and disclosure of how she funded the purchase of her house. As a result, Adam argues that a negative inference should be drawn.

[41] I have explained why I am not persuaded that Lauren’s business expenses have any bearing on her income. Furthermore, the evidence shows that Lauren provided answers promptly when asked whether the reimbursement of these expenses resulted in an employment benefit to Lauren. In response to a Request for Information dated November 8, 2021 wherein Adam asked an employee from Lauren’s employer to outline any benefits to which Lauren is entitled, Ms. Helen Morgado on behalf of Lauren’s employer responded on November 11, 2021. It did not indicate reimbursement of business expenses as an employee benefit.

[42] In fact, even before November 2021, Lauren had disclosed a copy of her pay slip with her financial statement sworn on May 25, 2021. It disclosed the reimbursement of expenses. But Adam did not ask any further questions about the business expenses until January 9, 2023, just weeks before trial. Ms. Morgado answered further questions about the business expenses in a letter to Adam’s counsel, dated January 16, 2023. It explained that the business expenses were reimbursements for purchases made on behalf of the company and were not benefits. In my view, this answer ought to have been sufficient. There was further evidence at trial that Adam knew how Lauren regularly submitted business expenses incurred and that she was reimbursed. The insistence by Adam on pursuing this issue at trial was disproportionate.

[43] Adam similarly insisted on disclosure of Lauren’s timesheets, and made repetitive requests for disclosure about the benefit of a cell phone. In total, Lauren’s employer provided three letters promptly, fully addressing questions raised by Adam. The timesheets had no bearing on Lauren’s income. Disclosure of the cell phone information was provided more than once. At a certain point, enough is enough. There was some delay in the valuation of Lauren’s health benefits, but I accept that both parties may have needed to wait until year’s end before a value could be placed on it.

[44] The challenge I have with Adam’s argument with respect to other disclosure sought is that it has little to no bearing on a determination of Lauren’s income. Income is the primary indicator of the Lauren’s child support obligations, although under s. 9 of the Guidelines, I recognize a consideration of a spouse’s condition and means is required, which may support disclosure of information beyond income.

[45] Lauren gave evidence at trial that the funds to purchase her home came in part from her equalization payment and from funds borrowed from her family – initially her sister and brother-in-law, and then her parents. She had applied for a mortgage and that document was disclosed and in evidence, but the mortgage could not be approved until her spousal support obligations were determined. Her explanation of how she funded the purchase of the home was credible and had an air of reality. It explains why there would be no financing documents to produce. When family members make loans, it is not uncommon for there to be no documentation of that loan. I am satisfied, based on Lauren’s evidence, that those loans by family members were made.

[46] With respect to disclosure of bank and credit card statements since October 2021, Lauren explained that they were not produced because the parties had been separated for over a year and she did not understand why they were relevant. She also explained that Adam had not produced his own bank or credit card statements for this period.

[47] Adam argued that disclosure of the bank statements would show repayments to her parents on the loan made. I am not persuaded that disclosure of bank and credit card statements is necessary or proportionate in this case. Both parties are T4 employees; neither are currently self-employed. Bank and credit card statements can be useful in identifying deposits and expenses for parties who are self-employed and to fully appreciate the legitimacy of business expenses. It is less relevant for T4 employees who only have one job and one source of income. There was no suggestion that Lauren had income other than from her current employer.

[48] Even if bank records were produced showing payment or non-payment of Lauren’s loan obligations to her parents, what relevance would that have in the determination of her child support obligations? If Lauren was late, missed a payment to her parents, or her parents forgave payment in one or several months, would Adam seek to question Lauren’s parents?

[49] I have accepted that both parties have received financial support from their parents in various ways, which is relevant to both parties’ means. However, in my view, it would be disproportionate, would overly complicate the determination of the parties’ child support obligations, and be inconsistent with the objectives of the Guidelines to demand that the parties produce bank and credit card information in a case such as this. The Guidelines’ objectives include reducing conflict and tension between spouses and improving the efficiency of legal process when fixing the levels of child support.

[50] Finally, Lauren gave evidence during her cross-examination that she received some funds as an inheritance from her grandmother, however this was not disclosed on her Financial Statement. She later explained that this was in fact an inheritance that her mother received from her grandmother, and that her mother had given her funds. I found Lauren’s testimony to be credible. I am not persuaded that Lauren has hidden income or assets to avoid her support obligations.

[51] This is not a case where a party is minimizing her income to minimize her support obligation while secretly being supported by an invisible family member. If a negative inference were drawn, I am not sure what it would be. There is no allegation Lauren could or should be earning more, and in my determination of the parties’ support obligations, I place greater weight on the Net Disposable Incomes of the parties rather than their means.

[52] For these reasons, I decline to draw any negative inference or impute as income to Lauren any reimbursement she receives of business expenses made by her employer.

Issue 2: What is the amount of child support that should be due and payable under s. 9 of the Guidelines?

[53] The children reside with both parties equally. Section 9 of the Guidelines governs and requires that child support be determined by taking into account, (a) the amounts set out in the applicable tables for each of the spouses; (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.

[54] The starting point of a s. 9 analysis is what is the set-off in table child support. However, that does not end the analysis. The court must also look at the parties’ respective budgets relating to the care of the children, as well as a comparative analysis of the parties’ standards of living (i.e., the condition, means, needs, and other circumstances of each spouse). See Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.

[55] The table amount of child support for Lauren, with an income of $162,810 and for two children, is $2,230.72 per month.

[56] Adam’s 2022 income of $114,390 is not in dispute. It includes an annual salary of $100,000, plus other benefits he receives. The table amount of child support for Adam, with this income and for two children, is $1,647.84.

[57] Therefore, the difference, or set-off amount of child support, is $582.88.

[58] Lauren’s Children’s Budget identifies total family expenses of $13,380.36, and that 41.4% of those expenses, or $5,536.26, relate to expenses for the children.

[59] Adam’s Children’s Budget identifies total family expenses of $10,959.21, and that 46.8% of those expenses, or $5,128.35, relate to expenses for the children.

[60] At trial, there was no evidence that persuaded me that the Children’s Budgets of either party was unreasonable or not reflective of actual costs incurred in each household for the children. Adam admitted during his cross-examination that the expenses for the children were roughly the same in each household.

[61] From the parties’ Children’s Budgets, the following conclusions can be made.

[62] First, the budgets are very similar, with each household spending between $5,128 to $5,536 per month on child related costs. Approximately $400 more per month is spent by Lauren than Adam for costs relating to the children. However, part of this difference may also be associated with higher costs identified by Lauren (e.g. $500 v. $300 per month for vacation expenses; $270 vs. $16.67 in dental expenses; $1200 v. $1,050 in household expenses). Upon receipt of the set-off of $582, Adam should be in a position to spend an equal amount on the children, plus have an additional $180 for discretionary items.

[63] Second, as compared to Lauren, a greater proportion of Adam’s total expenses relate to expenses for the children (46.8% vs 41.4%). This is a product of Adam’s total household budget being about $2400 less than the Lauren’s total household budget. Since Adam earns less income, and the parties are spending close to the same on the children, it makes sense that a greater portion of his total household budget is spent on the children. I am not persuaded that much turns on this percentage, except that it may result in Adam having fewer resources to pay for other non-child related needs.

[64] Third, there is duplication with respect to certain fixed costs, such as housing and utilities. There is also duplication with respect to other costs (e.g. iPads). I am persuaded that both parties made decisions with respect to their housing to accommodate bedrooms and suitable space for the children. Adam’s monthly housing costs are about $600 more than Lauren’s monthly housing costs. This may be a function of the fact that Adam rents his home, whereas Lauren owns her home, and Adam sought to restrict his search for housing to a limited geographical area, which he understood the parties had agreed to do. Lauren has since purchased her home outside of that neighbourhood. Adam acknowledged in cross-examination that he is searching for less expensive housing. His Financial Statement shows he has assets in investments which may be used towards the purchase of a home. With his higher housing costs already factored into his budget, this does not suggest a variation to the set-off amount.

[65] I next consider the parties’ condition, means, needs, and other circumstances, under s. 9 (c) of the Guidelines.

[66] The ratio of income between the Lauren and Adam is 59:41. The total child related expenses in both households, taken from the parties’ Children’s Budgets, is $10,664. If Lauren is responsible for 59% of this cost, it translates to $6,291. According to her Children’s Budget, she is already paying $5,536 in childcare costs, resulting in a difference of $755. Set-off is calculated at $582 per month. This suggests the Lauren should pay slightly more than the set-off amount, and up to $173 more per month.

[67] The challenge with this approach is that some of the amounts in the Children’s Budgets are purely discretionary (e.g. vacation) or are expected to change (e.g. Adam’s housing costs). If there are actual variations in these amounts, the extra amount in child support may no longer be justifiable or it may be excessive. Furthermore, this approach seems to have household equalization as an objective. As stated in A.E. v. A.E., 2021 ONSC 8189 at para 240:

The objective of the child support provisions of the Divorce Act and the Guidelines is to ensure the reasonable support of children rather than household equalization or spousal support. One of the purposes of section 4 is to ensure that child support does not enter into the realm of a functional wealth transfer or de facto spousal support to the recipient parent. Table amounts that so far exceed a child's reasonable needs that they become a transfer of wealth between the parents or spousal support under the guise of child support will be inappropriate (Francis, [1999] 3 S.C.R. 250 (S.C.C.), at para. 41).

[68] The greater authority suggests that, rather than income equalization, child support under s. 9 should be tailored to the extent it is practicable, so that children do not suffer a noticeable decline in their standard of living as between their two homes: See Payne and Payne, Child Support Guidelines in Canada, 2020, at p. 325.

[69] Both parties have received financial support from their parents. There was evidence of Lauren receiving from her parents a loan that allowed her to purchase a new house, and a gift of a new car. Adam has also received money from his parents to allow him to purchase new furniture in the home he now rents. This is an on-going variable in this case, making direct comparisons between the households’ means imprecise.

[70] Lauren’s greatest asset is her new home, valued at $1.185M. She has a car valued at $23,175 that was gifted from her parents. Excluding RSPs and pensions, she has accounts with TD, valued roughly at $30,000. She has a significant personal loan from her family – originally from her brother, and now from her parents – in the amount of $484,601 which has been used to fund the purchase of her home.

[71] Lauren’s monthly income is $12,500, and she identifies total monthly expenses as $13,155, suggesting she experiences a shortfall of about $650 per month and cannot afford to pay more.

[72] Adam suggests some of Lauren’s monthly expenses are not legitimate such as $758 in monthly car expenses when she owns her car, and $500 in vacations when she hasn’t taken a vacation. I am not persuaded that these amounts as stated in her Financial Statement are misstatements. The $758 is a total of transportation expenses (taxi, gas, insurance, parking), and not a reflection of car leasing or loan costs. The $500 for vacations, it is understood, is money set aside for a future vacation.

[73] Adam has assets in investments with CIBC, not including RSPs, valued roughly at $565,000. He also has $75,000 held in trust from his share of the net sale proceeds of the home. His debts, excluding disposition costs of his RRSP, is $770 for a credit card.

[74] Adam’s monthly income is $8,784, and he identifies monthly expenses at $10,959. This suggests he experiences a monthly shortfall of about $2,100 per month and requires greater resources.

[75] The parties’ assets and debts are similar. While Lauren owns a home, just less than half of its value is owed as a debt. In comparison, Adam has roughly $500,000 in an investment, close in value to the equity the Lauren has in her home, which could be used by Adam towards the purchase of a home. If he did so, he would likely have an asset valued at the same amount as Lauren, with similar debt as Lauren. His constraint, however, will be in finding a home in the same area in which he is located now, which is close to his parents and who provide support to him and the parties’ children.

[76] Adam also does not own a car. His evidence was that he appeared to be managing without one, and that based on the parties’ agreement that they would live close to each other, he assumed Lauren would let him use her car. Lauren did not move to a home close to the Adam, and I accept that Adam may require the purchase of car.

[77] I have also considered Adam’s mental health challenges. As Adam is currently working, and for reasons which I will expand upon in my discussion of entitlement to spousal support, I do not find that Adam’s mental health is an impediment to his ability to work and therefore, I do not factor it into my consideration of the parties’ circumstances.

[78] Having considered the above factors, I find that Lauren should pay an amount that slightly exceeds the set-off. I make this finding primarily because I am concerned that the children’s standard of living in their two homes will be noticeably different in ways that will matter to the children. Notably, their ability to vacation with their father the same way they vacation with their mother, and that they must take public transit with their father but drive in a car with their mother. These are expenses that the Adam will have difficulty covering, as his current expenses already exceed his income by over $2,000 per month.

[79] The extra amount of child support shall be fixed at $100 above the set-off. While modest, I am satisfied that this is a reasonable amount that will promote similar standards of living between the households.

[80] I decline to award more than $100 above the set off. I am satisfied that Adam can reduce his expenses by reducing his housing costs, possibly with the purchase of a home, and that he will likely do so. He has resources to make the purchase of a home possible. He testified that he intended to do so. An objective of child support is not income equalization. For this reason, a significant payment above the set off would be inappropriate given the relatively equal amounts spent by the parties on the children. I am also mindful of Lauren’s ability to afford a payment in excess of the set-off, noting that her Financial Statement has her monthly expenses slightly exceeding her income.

[81] I make the following orders with respect to child support:

a. Lauren shall pay Adam table child support for the two children, effective January 1, 2023, in the amount of $2,231 per month, based on her 2022 income of $162,810, plus a further $100 per month pursuant to s. 9 of the Guidelines; b. Adam shall pay Lauren table child support for the two children, effective January 1, 2023, in the amount of $1,655 per month, based on his 2022 income of $114,930. c. The parties shall share s. 7 expenses proportionally based on Lauren’s income of $162,810 and Adam’s income of $114,930.

Issue 3: Is Adam entitled to spousal support on a compensatory or non-compensatory basis?

[82] Subsection 15.2(1) of Divorce Act, R.S.C., 1985 c. 3 (2nd Supp.) gives this court jurisdiction to make an order for spousal support. Subsections 15.2(4) and (6) set out the factors the Court shall apply when ordering spousal support.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

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

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

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

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

[83] The Divorce Act contemplates compensatory support to “recognize and account for both the economic disadvantages incurred by the spouse who makes…sacrifices and the economic advantages conferred upon the other spouse”: Moge v. Moge, [1992] 3 SCR 813 at para. 74. Compensatory support is “intended to deal with the economic consequences” following marriage breakdown: Moge at para. 43.

[84] There are several economic consequences of marriage or marriage breakdown. A common advantage is the ability of a spouse to earn an income, obtain promotions, and not be vacant from the labour force while the other spouse attends to childcare. A common disadvantage for the spouse remaining at home to care for children is loss of income, loss of seniority, inability to upgrade skills, and no access to benefits. These disadvantages may continue after marriage breakdown if one spouse continues to have to miss labour opportunities due to childcare. These economic advantages and disadvantages may also flow in marriages without children.

[85] The Divorce Act also contemplates non-compensatory support where one spouse has need. Non-compensatory support recognizes that when spouses split, it is artificial to assume that “all separating couples can move cleanly from the mutual support status of marriage to the absolute independence of single life”: Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 31. Non-compensatory support “places the burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state”: Bracklow, para. 31.

[86] The statutory requirement in s. 15.2(4) of the Divorce Act to consider the “condition, means, needs and other circumstances of each spouse” invites “an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” Bracklow, para. 40. Furthermore, the statutory requirement in s. 15.2(6)(c) to consider relieving economic disadvantages of marriage breakdown (contrast with economic disadvantages arising from the marriage in s. 15.2(6)(a)), is an explicit recognition of non-compensatory support: Bracklow para. 41.

[87] The court must consider all four objectives under s. 15.2(6) of the Divorce Act when spousal support is sought, no single objective is paramount: Moge; Bracklow, para. 35. Against this backdrop, the court must look at the “condition, means, needs and other circumstances of each spouse.”

[88] Where it is not possible “to determine the extent of the economic loss of a disadvantaged spouse…the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”: Bracklow, para. 36, citing Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.) at para. 15. An award of spousal support “to a spouse who is disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown”: Bracklow, para. 48. However, where a spouse becomes disabled towards the end of a very short marriage and has need to support, it may be unfair to order spousal support for an indefinite period: Bracklow, para. 54.

Analysis

[89] The parties began living together in 2011 in a condo owned by Adam. They were married in 2013, after they purchased the Matrimonial Home in 2012. They separated in August 2020. Their nine-year period of cohabitation was not insignificant, but it cannot be found to have been a lengthy marriage or period of cohabitation.

[90] The parties’ argued that they performed different functions during cohabitation, with one or the other exercising greater responsibilities around childcare and household duties. However, their evidence was remarkably similar in terms of the roles they performed.

[91] They both worked during their cohabitation, save and except a 14-month maternity leave taken by Lauren, and periods of unemployment by Adam.

[92] Lauren worked full-time at SickKids Hospital in public relations when the parties were married and until she went on maternity leave. The children were born on March 28, 2016. When Lauren returned to the workforce, she started work at Narrative PR, a division of Tadiem in 2017 on a contract. She later became an employee. In November 2021, she was promoted to Vice-President of Tadiem, and now earns a base salary of $150,000, plus taxable benefits. In this position, Lauren testified that she generally works from 9 a.m. to 5 p.m. However, her employer has given her much flexibility with her work hours, allowing her to take time off for appointments for the children and to make up that time later (i.e., in the evening when the children are asleep).

[93] Adam’s work history is less straight forward. From the time the parties first met, he held various contract positions as a senior copywriter. From July 2012 to January 2017, he held three different full-time positions of varying duration with various advertising agencies. During this same period, he also had periods of unemployment. He then held a 4-month contract position, followed by a full-time employment contract which terminated in August 2018.

[94] His evidence was that rather than continue to find work with advertising agencies, he decided to seek work “in-house” for a single client. He testified that, in contrast to a fast-paced environment of an advertising agency with irregular and demanding work hours, he chose to work in-house for a single client because the hours were more reasonable and would allow him to leave work at fixed hours to be with the children. He found work with Intuit in March 2020, one week before the COVID pandemic unfolded. He was terminated from this position in August 2020, in part, because his employer gave him limited flexibility in managing his parenting responsibilities. This was around the time the parties separated (i.e., August 28, 2020).

[95] After being terminated by Intuit, Adam performed various freelance work for eight months. In December 2021, he assumed another full-time position with SkipTheDishes as a senior copywriter. He continues to hold this position. He now earns a salary of $100,000, plus taxable and non-taxable benefits.

[96] I am not persuaded that either party made employment sacrifices as a consequence of the roles assumed during their cohabitation and marriage. The parties’ evidence was remarkably similar in terms of their efforts to pursue their chosen careers. While Adam had greater difficulty maintaining work with a single employer, his evidence was that this was not a consequence of the roles performed during the marriage. The parties did not decide, separately or together or at all, that Adam would not work so he could assume primary child or household duties. Both parties testified that they wanted Adam to find and maintain regular, full-time employment, and that Adam made many efforts to secure such a position. Adam’s own evidence was that other factors contributed to his work instability - the nature of his business, the amount of competition as a copywriter, unique challenges he had with certain employers, and by trends in the industry which favoured younger workers who were more familiar with evolving marketing platforms (e.g., TikTok).

[97] The children’s enrolment in and attendance at daycare, commencing September 2017, supports this finding. Both parties agreed to daycare. At that time, Adam was not working. The parties’ evidence was that their goal was for both parties to be working and the children’s spots at daycare would be lost if they did not register them.

[98] When Adam was not working, his evidence was that he continued to search for work. The children would be in daycare, and he would pick them up from daycare at around 3:00 p.m. This was a decision he made to allow the children to have naps at home rather than at daycare. At times, Adam was working while the children were in daycare, in which case, he would pick them up later.

[99] In terms of roles performed at home, I am satisfied that both parties played roles of equal value and importance, and with equal contributions.

[100] Both parties gave evidence that, prior to the children’s birth, they would both engage in household chores such as cooking and shopping. They had a cleaning person attend the home once every two weeks, who also did laundry. They also both did light cleaning. There was evidence that Adam performed outdoor maintenance tasks, he rebuilt a deck, and managed a mice problem in the house. Lauren had greater responsibility for managing their calendar and social events.

[101] When Lauren was pregnant, she was on bedrest after week 24. She acknowledged that Adam did the bulk of all chores, including grocery shopping and cooking for the ten weeks while she was on bed rest.

[102] Similarly, when Adam had a mental health episode, he acknowledged that Lauren “stepped up” and she managed household responsibilities.

[103] In terms of childcare, when the children were first born, Adam took one week from work. Lauren was primarily responsible for the children’s care during the day while she was on maternity leave. Lauren testified, however, that the Adam was involved in caring for the children, such as meal preparation, feeding the children, bedtime routines, playing with the children and other household tasks. This included tending to the children in the middle of the night. The parties were also supported in the early months by a night nurse, and in the summer of 2017 by a neighbourhood student. They were also supported by the parties’ extended families.

[104] After the children began daycare in 2017, and if they were sick, both parties took time off work to care for the children, depending on their schedule.

[105] Usually, Lauren dropped the children off at daycare. When Adam was not working, he would pick up the children from daycare early and engage in activities with them – swimming, tennis, skating, bike riding, play, music, and soccer. He would generally prepare dinner for the family, although the children would eat early before Lauren returned home from work. If Adam was working, he would pick them up from daycare before 6 p.m.

[106] When Lauren returned home from work (usually between 5:30 and 6:00 pm), her evidence was that she was primarily responsible for bedtime routines, and that she would rush home for this to happen. She testified that she had not seen the children through the day and this activity was important since it was the few hours she would have with the children each day. Adam testified, however, that he would also be involved in the bedtime routine, depending on when the Lauren got home from work. In terms of morning routines (getting breakfast ready, making lunch), Lauren stated that it was mostly her who did this, although she acknowledged that this responsibility was shared.

[107] The children began attending school in September 2020, shortly after the parties separated but were still living in the Matrimonial Home. They also attended an after-school care program.

[108] During the COVID-19 pandemic, there were periods when the children were learning from home and both parents were also working from home. This posed challenges for many parents of young children. I accept that both parents tried to assist their children with online learning while also trying to work full-time, that both parties participated to the extent they were able, and that this was difficult for both of them.

[109] From the period after the children began attending school and until the parties physically separated in February 2022, Lauren testified that she would drop the kids off at school, and Adam would pick them up. She would continue to take the children to doctor’s appointments when she could because she had more work flexibility, while Adam had less because he had started a new job. She arranged playdates, purchased clothes, got the children ready for school, made lunches, and readied them for bed. She said Adam and her would share in grocery shopping, making breakfasts, and make sure the home was tidy. They continued to have a cleaning lady every two weeks. She said Adam was responsible primarily for taking the children to dentist appointments, making dinners, and tending to the exterior of the home.

[110] Lauren testified that there were many other things that she remained principally responsible for in the care of the children and the household. They included: making dentist and doctor appointments (although she acknowledged Adam would also take the children to appointments); buying clothes, shoes, backpacks (although she acknowledged Adam also bought some items); grocery shopping; servicing the vehicle; and managing social engagements.

[111] Adam’s testimony was not strikingly different from Lauren’s testimony. He expanded upon the things he did in the household, which included lawn maintenance, rebuilding a deck, managing a mice problem, meal preparation, bathing the children, sharing in medical appointments, sharing putting the children to bed (depending on when Lauren got home from work), taking the children to the park, shopping outings, and other tasks. He also recounted the many activities he was involved in with the children each day (soccer, going to park, skating, bike riding, tobogganing, etc.). Where there were differences in their testimony, they were minor (e.g., who bought a backpack or shoes/boots for the children) and of little consequence.

[112] I am not persuaded that either spouse assumed greater responsibilities than the other with respect to childcare or household responsibilities. Like most modern families who juggle careers with childcare and household responsibilities, there was a near equal sharing of responsibilities, even though the specific tasks performed by each spouse may have been different.

[113] Underlying this division of work was a desire by both parties to work full-time. There were likely periods when Lauren assumed more responsibility (during her maternity leave), and there were likely periods when Adam assumed more responsibility (during periods of unemployment). However, I cannot conclude that the functions performed by Adam during cohabitation entitles him to compensatory support given the relatively equal functions performed by Lauren.

[114] I have also considered Adam’s testimony that he decided to work as an in-house copywriter with a client, rather than with an agency, and that this resulted in reduced income. While I accept that his current job at SkipTheDishes likely provides him with greater certainty around his work hours and demands, and that it may have resulted in less income than if he were working for an agency serving multiple clients, I cannot conclude that this decision was made as a sacrifice for his family or driven by a need to be more available to care for his children. This may have been a consequence, but I do not find it to be a cause for this change in his work. Adam’s evidence of his job history and job search efforts shows that he had difficulty maintaining work with an agency and that there were other factors that impacted his ability to find work with an agency (e.g., competition). Furthermore, given the shared parenting arrangement, the children’s enrolment in after-school care, and the childcare supports available from Adam’s family, I do not find that his childcare responsibilities have prevented him from working for an agency at a higher salary if such work became available to him.

[115] For these reasons, I am not persuaded that Adam has established a compensatory entitlement for support arising from the functions the parties performed while cohabiting.

[116] In considering the condition, means, needs, and other circumstances of the spouses, Adam relies upon several factors.

Adam’s Mental Health

[117] Adam cites his mental health as a relevant circumstance. He suffers from General Anxiety Disorder (“GAD”) and depression, which can result in more significant episodes of poor mental and physical health if not managed. His evidence was that his first episode occurred when the Matrimonial Home was under significant renovation. He became overwhelmed and immobilized by fear due to the cost and magnitude of the renovation. He felt he was having a panic attack or nervous breakdown. He was visibly upset, twitchy, weepy, incoherent, and suffering from delusional thoughts of random patterns, letters, and numbers. While he had anxiety before, it had never reached such a state.

[118] Adam was subsequently treated. This included medication and weekly therapy. He tried various medications to manage his anxiety. He is now on a daily Cipralex medication. He testified he has an effective strategy to manage his anxiety. It includes daily Cipralex before bed, an ability to be more self-aware of circumstances that can lead to an episode, an improved ability to manage his emotions, and a plan to manage his anxiety when an episode occurs.

[119] He testified that he also used cannabis, on the recommendation of his physician, to manage symptoms. Use of alcohol has also helped, but he recognizes that too much alcohol can also make his depression worse. Use of physician prescribed Lorazepam also assists when an episode occurs. It is taken as required although Adam stated he takes it rarely. He does not mix Lorazepam with alcohol or cannabis. He also takes vitamins and homeopathic remedies.

[120] Adam testified that he has an episode two or three times a year, but it can be more often if there are stressful triggers. He testified there were several recent triggers, such as this divorce proceeding, separation, selling his house, moving to a new house, the COVID-19 pandemic, and this trial. As a result, he had about four episodes in 2021 and 2022.

[121] When an episode occurs, Adam testified he needs to disconnect from all digital sources and printed material. He requires quiet time to “chill out” in silence. He often needs to remain in bed for 24 or 36 hours, and the duration is impacted if it is necessary for him to use Lorazepam. He testified that if he has an episode, he is not able to work, and that he must be away from others and not on a screen for 24 to 36 hours. It may result in him calling in sick to work. Now, his mother will check on him. She lives close and can come by the house.

[122] An equitable sharing of the economic consequences of divorce does not exclude other considerations, particularly when dealing with a disabled spouse: see Moge, para. 76. However, I am not persuaded that Adam’s mental health creates an entitlement to support.

[123] Adam suffered from anxiety prior to cohabitation. His condition worsened with his GAD diagnosis during the relationship. Lauren was aware of Adam’s condition throughout. Adam’s evidence, however, is that he has developed effective mechanisms to manage his condition. He has presented no medical evidence to support a conclusion that his GAD or depression impact his ability to work (or to parent).

[124] From Adam’s testimony, his condition has virtually no impact on his capacity to work, aside from a few days a year when he may have to call in sick. He testified he only has episodes two or three times a year where he would have to call in sick. Like most adults and parents who suffer from illness, including mental illness, they can fully function with some modest accommodation from their employers (i.e., sick days, flexible work arrangements). Adam’s evidence was that his mental health did not prevent him from working. Rather his evidence, supported by similar evidence from Lauren, was that being employed had a positive impact on Adam’s overall mental health.

[125] Adam also gave evidence about concerns for his future. His father was recently diagnosed with Multiple Sclerosis and dementia. There is a history of mental health problems in his family and he is concerned that his mental health might worsen. He is concerned about future job loss, and that he may be confronted with the same challenges he endured in the past with securing a job. He testified that his current employer recently reduced its workforce. While his position was spared, he is concerned there may be future layoffs, and that his employer may seek to retain a younger copywriter who is paid less.

[126] While the Court can understand how these fears about potential future events may impact Adam today, those events which Adam fears have not materialized. They do not have a bearing on his need for support today. Adam testified that he manages these fears by avoiding worrying about things in his life, and focusing on the present. He instead thinks about positive things in his life. If his mental health has an impact on his employability in the future, the parties can hopefully come to resolution of an appropriate support order, or if necessary, a Court can deal with this issue if a material change in circumstances is established.

Means and Needs of Each Spouse

[127] Lauren’s income for support purposes is $162,620, which accounts for her base salary of $150,000 plus taxable benefits. Adam’s income for support purposes is $114,390, which accounts for his base salary of $100,000 plus taxable benefits.

[128] Adam argues that he earns approximately $50,000 less than the Lauren, which is evidence of need. He has rented a house in the same neighbourhood of the Matrimonial Home, which he states is what the parties had agreed to do following separation, at significant expense. However, as noted earlier in my Judgment, Adam has expressed an intention to find alternative housing.

[129] While the $50,000 difference in the parties’ income is not insignificant, it is not a massive delta. In any event, income disparity alone does not establish entitlement: C. Rogerson and R. Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016) at p 8.

[130] Adam has a well-paying job in his field. Adam also has assets that can support a transition to owned and potentially more affordable housing. Adam will also receive child support, as ordered above. With those payments, the attached DivorceMate calculations show the parties’ respective Net Disposable Income will be 51.5% for Lauren, and 48.5% for Adam. For these reasons, the need for spousal support on the part of Adam is not apparent, nor would spousal support be affordable for Lauren. DivorceMate, applying the SSAGs, does not recommend low-range or mid-range spousal support.

[131] I have already commented above about the parties’ respective assets and debts. I concluded that the parties are in a relatively equal position in terms of their net family property now that the Matrimonial Home has been sold and most of the net proceeds of sale having been distributed.

[132] In summary, this is not a case where entitlement has been established. I disagree with Adam that if genders were reversed, a different outcome would result. Adam has demonstrated that for over a year, he has been able to hold a well-paid position. Income disparity does not establish entitlement, and many of Adam’s arguments in his closing submissions were centered on this assumption. More than just attaining a level of income that fulfils his and his children’s needs, Adam has a good income on which he can support his children. As noted, the NDIs between the households are not grossly dissimilar after payment of child support, as ordered. I am also not persuaded that the standards of living between the parties are grossly dissimilar.

[133] Finally, Adam sought an Order that this Court find that he is entitled to spousal support and to fix the amount of support at $1, recognizing that at the parties’ current income levels, the SSAGs recommend no spousal support at the low and mid-range. The advantage of such an Order for Adam is that it would give him time and expense in having to present fresh evidence about entitlement at a future date, should Adam lose his job, as he has often done in the past. I disagree.

[134] I have already found Adam is not entitled to spousal support, notwithstanding his evidence of his difficulty finding work historically. I accept that he has had difficulty finding and keeping jobs in the past. However, he has now changed the nature of his work – from agency to in-house employment – with different work demands that align better with his tolerance for managing workplace stress.

[135] There may be a day where Adam can establish that he is unable to maintain or obtain a job in this environment, or his mental health may deteriorate and impact his ability to work. These future events may constitute material changes in circumstance that would allow the Court to revisit entitlement. However, this Judgment has ruled that the present and past circumstances do not entitle Adam to spousal support.

Order to go as follows:

[136] This Court orders:

1. The Applicant shall pay the Respondent table child support for the two children, effective January 1, 2023, in the amount of $2,231 per month, based on her 2022 income of $162,810, plus a further $100 per month pursuant to s. 9 of the Federal Child Support Guidelines, SOR/97-175.
2. The Respondent shall pay the Applicant table child support for the two children, effective January 1, 2023, in the amount of $1,655 per month, based on his 2022 income of $114,930.
3. The parties shall share s. 7 expenses proportionally based on Lauren’s income of $162,810 and Adam’s income of $114,930.
4. The Respondent’s claim for spousal support is dismissed.

Costs

[137] Parties are encouraged to agree upon an appropriate cost order. If they are unable to agree, parties may deliver cost submissions not exceeding 3 pages, along with a Bill of Costs, any Offers to Settle, plus any other supporting documentation marked as an appendix. Lauren was largely successful at trial. Lauren shall deliver her cost submissions by June 23, 2023. Adam shall deliver responding cost submissions by July 14, 2023. Lauren may deliver any reply cost submissions by July 28, 2023. Submissions shall be sent to the Family Trial Office and shall also be uploaded to CaseLines.

M. Sharma, J. Released: May 25, 2023 Attach: DivorceMate Calculation