COURT FILE NO.: FS-22-28181 DATE: 20230911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kristjana Duncan, Applicant AND: Michael William Joseph Donaldson, Respondent

BEFORE: M. Kraft J.

COUNSEL: Meghan Lawson, for the Applicant Ysamin McGann, for the Respondent

HEARD: August 31, 2023

Endorsement

Introduction

[1] These parties were in a long-term traditional marriage for 18 years. Ms. Duncan did not work outside of the home and Mr. Donaldson was the only income earner for the family. They have three children of their marriage. After separation, they resolved their outstanding issues by way of a separation agreement. Shortly thereafter, Mr. Donaldson took a leave of absence from work, went on long term disability (“LTD”), and spent 8 weeks as an inpatient at Homewood Health Centre to address his long-standing mental health concerns. At that time, the parties agreed Mr. Donaldson would pay a reduced amount of child and spousal support based on his LTD income. Mr. Donaldson then unilaterally stopped paying spousal support and paid child support sporadically. He did not contribute to the children’s s. 7 expenses. Mr. Donaldson then advised Ms. Duncan that he was working again, earning a significantly reduced income, and unilaterally reduced his child support despite the terms of the agreement that he pay child and spousal support in the amounts agreed to until further agreement of the parties or pursuant to a court order. Ms. Duncan started this application to enforce the terms of the separation agreement, to ensure Mr. Donaldson pays her child and spousal support arrears accumulated under the terms of their agreement, and to have the court impute income to him on the basis that he is intentionally underemployed on an ongoing basis for the purpose of ensuring that he pays child and spousal support at an appropriate level. Mr. Donaldson argues that he owes no child or spousal support arrears. He seeks to pay ongoing child support on his current reduced income and to terminate his spousal support obligation.

Nature of Relief Sought

[2] Ms. Duncan calculates that Mr. Donaldson owes her child support arrears of $14,849.32 to August 31, 2023 and spousal support arrears of $25,350.80 to August 31, 2023 arising from a separation agreement signed by the parties in early 2021. On a going forward basis, Ms. Duncan also seeks an order that Mr. Donaldson be found to be intentionally underemployed, that he be imputed with an income of $150,000 a year, that he pay her ongoing child support on that basis for the parties’ three children (2 full table and 1 summer months only), that he pay her ongoing spousal support in the sum of $1,000 a month, and that the court enforce various terms of the parties’ separation agreement which he has breached.

[3] Given that much of the relief sought by both parties is interrelated, the majority of relief sought by both parties was addressed. Ms. Duncan’s notice to motion was served first and, as a result, the court had sufficient time to address the property terms of the separation agreement she raised that had been breached. However, the cross-motion brought by Mr. Donaldson could not be fully addressed at the motion given the time constraints, particularly since both motions were returnable on the regular motions list where motions must be argued in one hour or less. In his notice of motion, dated August 4, 2023, Mr. Donaldson sought an order that his parenting time be reinstated with the assistance of a reunification therapist. This head of relief was not able to be argued at this motion. Accordingly, Mr. Donaldson may return that aspect of his motion on any Tuesday or Thursday, which is agreeable to both parties and counsel, on the regular motion list.

Background

[4] The parties had a long-term 18-year traditional marriage. Mr. Donaldson was the sole income earner for the family. Ms. Duncan looked after the children and household and was out of the workforce for 16 years. The parties have three children, ages 17, 15 and 8.

[5] The parties separated in 2020. The children reside exclusively with Ms. Duncan. Mr. Donaldson has had no in-person contact with the two older children since 2021. He does have telephone contact with the parties’ 8-year-old daughter.

[6] There is no dispute that during the marriage Mr. Donaldson suffered from mental health struggles, including depression and anxiety.

[7] The parties executed a separation agreement resolving their outstanding issues on January 5th and 6th, 2021, respectively.

[8] At the time the separation agreement was signed, Mr. Donaldson was the Director of Service Operations at Marant Construction. He was earning a base salary of $150,000, plus bonus. In 2019, the year before separation, Mr. Donaldson earned gross annual income of $181,194. In the year of separation (2020), Mr. Donaldson’s Line 15000 income was $185,911.

[9] The separation agreement provides that Mr. Donaldson is obliged to pay Ms. Duncan:

1. Child support of $2,298 a month for the three children based on his base salary of $150,000 a year;
2. 80% of the enumerated s. 7 expenses [1] and s. 7 expenses consented to in advance, in writing;
3. Spousal support of $2,219 a month; and
4. Support on a weekly basis.

[10] The spousal support amount agreed to was based on Mr. Donaldson’s base salary of $150,000 and the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”).

[11] The agreement provides that on or before June 1st in each year, starting on June 1, 2021, the parties would calculate the actual child and spousal support to be paid based on Mr. Donaldson’s gross income from the previous year, and Mr. Donaldson would pay Ms. Duncan a lump sum to “top up” the support based on the difference between his base salary and his gross annual income in June of each year. The parties also agreed that the annual review would result in them recalculating the child and spousal support based on the parties’ respective incomes and the mid-range of the SSAGs. Until there is an adjusting agreement, Mr. Donaldson is to pay child and spousal support under the most recent agreement.

[12] Five months later, in May 2021, Mr. Donaldson advised Ms. Duncan that he was taking a leave of absence from work due to stress and that he had applied for short term disability but there would be no change to the support arrangements. In July 2021, Mr. Donaldson told Ms. Duncan he stopped earning his salary in June, he was in receipt of Employment Insurance (“EI”) in the sum of $595 a week, and he had applied for long term disability (“LTD”).

[13] By August 31, 2021, Ms. Duncan was advised through counsel that Mr. Donaldson had been approved for LTD and will be in receipt of $5,000 a month (not taxable) starting July 21, 2021, that he would be attending an inpatient program at Homewood Health Centre in Guelph starting September 17, 2021, and he did not anticipate returning to work until April or May 2022.

[14] Because of his changed circumstances, the parties agreed that effective September 1, 2021, the support would be reduced, and Mr. Donaldson would pay Ms. Duncan child support of $1,512 based on him earning an annual income of $76,165 (i.e., his LTD payments grossed up) for the 3 children and $1,000 a month in spousal support. Given that Mr. Donaldson’s reduced income was about 50% of what he had previously been earning, the parties agreed to reduce Ms. Duncan’s spousal support by 50%.

[15] Mr. Donaldson was discharged from the Integrated Mood and Anxiety program at Homewood on November 12, 2021. He did not, however, return to work in May or April 2022 as anticipated. Instead, he returned to work 11 months later, in October 2022.

[16] Sometime after leaving the Homewood program, Mr. Donaldson moved away from Toronto. He first moved to Parry Sound and then settled in Huntsville, Ontario. He did not advise Ms. Duncan when he moved. She learned of his moves when he sent her an email with his new addresses.

[17] Eleven months later, on October 22, 2022, Mr. Donaldson advised Ms. Duncan in an email that his LTD payments had ended and he obtained new employment earning $40,000 a year. He did not tell Ms. Duncan the details of his employment, including who he was employed by and/or whether he was working full-time or part-time. Without the consent of Ms. Duncan, Mr. Donaldson reduced his child support payments unilaterally from $1,512 a month to $805 a month based on his new income. At that time, Ms. Duncan’s counsel wrote to Mr. Donaldson expressing that she did not agree with the unilateral reduction in support and asked him to reinstate the child support in accordance with the terms of their agreement, namely that he pay reduced child support of $1,512 a month. Mr. Donaldson did not respond. At this time, Mr. Donaldson’s health benefits were also cancelled without notice to Ms. Duncan which was difficult since the parties’ youngest child receives regular treatment at Sick Kids Hospital for juvenile arthritis.

[18] Five months later, on March 8, 2023, Mr. Donaldson again advised Ms. Duncan by email that he had obtained new employment as a Heavy Equipment Operator for a construction company and his income had increased to an average of $65,000 a year. Again, he unilaterally changed his child support payments to $1,199.08 a month, or $299.77 a week, based on his new income.

[19] A further five months later, on August 17, 2023, Mr. Donaldson, for the fourth time since the separation agreement was signed, advised Ms. Duncan he would be reducing his child support because the parties’ oldest child will be starting post-secondary education in September.

[20] Mr. Donaldson stopped paying spousal support to Ms. Duncan in or about the spring of 2021. As a result, Ms. Duncan commenced these proceedings in February 2022 to enforce the terms of the separation agreement.

[21] Although she had been out of the workforce for 16 years, Ms. Duncan began working in January 2022 at Aviva Insurance. She now earns $56,000 a year. Ms. Duncan submits she was only paid spousal support for about 11 months after the separation agreement was executed before Mr. Donaldson unilaterally terminated the payments.

Issues to be Decided on the Motion

[22] The five issues I need to decide on this motion are as follows:

1. Should income be imputed to Mr. Donaldson because he has been intentionally underemployed for 2021, 2022 and currently in 2023?
2. What is the quantum of child and/or spousal support arrears owing to Ms. Duncan pursuant to the separation agreement, if any?
3. What is Mr. Donaldson’s ongoing child support obligation?
4. What is Mr. Donaldson’s ongoing spousal support obligation, if any?
5. Has Mr. Donaldson complied with the life insurance obligations and property payment on account of his Murant shares set out in the parties’ separation agreement? Has Ms. Duncan complied with the RESP Fund division set out in the parties’ separation agreement?

Issue One: Should income be imputed to Mr. Donaldson because he was intentionally underemployed in 2021, 2022, and to date?

[23] Ms. Duncan argues that Mr. Donaldson is currently intentionally underemployed and has been since 2021. She asks the court to impute Mr. Donaldson with an income of $150,000 a year on an ongoing basis, since that was the base salary he had earned historically and is capable of earning that income now in 2023. She is not seeking an order imputing an income of $150,000 to Mr. Donaldson in 2021 or 2022.

[24] Pursuant to s.19(1) of the Federal Child Support Guidelines, SOR/97-175 (“CSG”), the court has discretion to impute income to a payor spouse where a spouse is not using his earning capacity or other resources and is not working to his potential. “Intentional underemployment” does not require proof of a deliberate attempt or bad faith on the part of a payor spouse to undermine his support obligations: Drygala v. Pauli, 219 D.L.R. (4th) 319 (Ont. C.A.), at paras. 25, 26, and 29.

[25] The three-part legal test for imputing income set out in Drygala v. Pauli, at para 23 is as follows:

1. Is the spouse intentionally underemployed or unemployed?
2. If so, is the intentional underemployment or unemployment required by virtue of the reasonable needs of the spouse?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The Parties’ Position on Intentional Underemployment

[26] Mr. Donaldson argues that he is not intentionally underemployed. He submits that his underemployment is required because of his mental health needs, described by him as follows:

1. He suffers from depression, ADHD, anxiety, mental and physical burnout, high blood pressure, an ulcer and a rare heart condition, known as Brugada syndrome.
2. He produced a letter from his treating physician, Dr. Forman, dated February 2, 2023, which sets out the following, i. In July 2018, Mr. Donaldson was placed on modified duties at work because of his mental health stresses. In September 2018, he was given a new modified role to accommodate his work-related stresses and worked well in this role for a year. ii. In November 2019, his anxiety and depression deteriorated. He was admitted to Michael Garron Hospital after which he was managed as an outpatient. iii. In January 2020, he returned to his previous role at work and managed with medication and therapy for 15 months. iv. In April 2021, he suffered a relapse and took time off work. In September 2021, he was admitted as an inpatient at Homewood Health Centre for 8 weeks in the Integrated Mood and Anxiety Program. He was discharged on November 12, 2021 with a plan that he was to return to work in February 2022 on an accommodated and modified basis. v. Prior to returning to work in February 2022, he was hospitalized for three weeks at Michael Garron Hospital on February 27, 2022 with pneumonia and a secondary cardiac complication. He required medical rehabilitation after he was discharged. He never returned to work in his previous position and permanently left his previous employer in September 2022 because “he was unable to continue to work in that role as a direct result of his physical and mental health restrictions.” vi. He works as an equipment operator at a construction company, a less stressful work environment which “fits with his current mental health status and allows him to continue with this psychiatric and medical follow-up.”
3. While he learned coping strategies at Homewood Health, he swears that he continues to suffer immensely.
4. He considers his mental health condition serious and swears that it affects his day-to-day life and his relationships with others; and
5. He moved to Huntsville and took on a new employment position to reduce his stress. His current employment reflects his current capabilities for managing stress.

[27] On January 11 2023, at a case conference, Mr. Donaldson was ordered by Black J. to provide Ms. Duncan with his full T1 General for 2020 and 2021, copies of his bank account and credit card statements from January 2021 to present, a comprehensive report of his admission to Homewood Health in the form of a discharge summary, and the ongoing care and treatment records of his family physician, Dr. Forman, who assumed his care after he was released from Homewood (“Black order”).

[28] Mr. Donaldson produced one letter from Dr. Forman, dated February 2, 2023, which included the Homewood Health discharge summary, dated November 11, 2022. There was no disclosure of his treatment plan. Mr. Donaldson did not comply with the Black order which required that he send ongoing care and treatment records. Mr. Donaldson did produce some bank statements and Ms. Duncan asked a number of follow-up questions about large deposits and withdrawals at the end of February 2023, which were never answered by Mr. Donaldson.

[29] Again, in April 2023, Ms. Duncan requested the ongoing care and treatment records from Mr. Donaldson who, again, did not comply with the Black order that he provide these records to Ms. Duncan.

[30] Ms. Duncan’s position is that Mr. Donaldson has not satisfied his onus to justify his underemployment based on his health circumstances. He has not provided satisfactory evidence because the discharge statement from Homewood Health Centre is 2 years old [2] and the letter from Dr. Forman is hearsay, outdated by 6 months, [3] and should be given little, if any weight. Accordingly, she argues Mr. Donaldson should be imputed with an income commensurate with his historical earnings on a going forward basis, particularly since he has not shown what efforts he has undertaken to find commensurate employment in 2023.

Analysis on the Intentional Underemployment and Imputation of Income Argument

[31] On the first part of the legal test, the evidence is clear that Mr. Donaldson was earning far less in 2021, 2022, and currently in 2023, than he was earning at the time the separation agreement was signed, which was a base salary of $150,000, plus bonus. He admits in his affidavit that he is no longer in a management position. In Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, Rouleau J.A. confirmed at para. 26 that there is “no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment. The reasons for the underemployment are irrelevant. If a parent is earning less than she or her could be, he or she is intentionally underemployed.”: cited with approval by Breithaupt Smith J. in Skinner v. Skinner, 2019 ONSC 6949, at para. 21. Accordingly, I find that the Mr. Donaldson is intentionally underemployed.

[32] This takes me to the second part of the legal test. Here, the onus shifts to Mr. Donaldson, as the payor, to justify his underemployment as one of the exceptions to reasonableness in a compelling way and present the justification as “reasoned, thoughtful and highly practical”: L.M.L. v. S.L.G., 2019 ONCJ 421, at para. 18.

[33] When considering the reasonableness of the underemployment, the court is to consider the payor’s age, education, experience, skills, and health. The court must also consider the payor’s employment history, available employment opportunities, and standard of living enjoyed during the parties’ marriage: Drygala v. Pauli, at para. 45; Lawson v. Lawson, 81 O.R. (3d) 321 (Ont. C.A.), at para. 36.

[34] If the payor cannot provide evidence of a reasonable job search, the court has found that it has no choice but to find the payor intentionally underemployed: Filipetto v. Timpano, [2008] O.J. No. 417 (Ont. S.C.), at para. 16.

[35] Mr. Donaldson argues that his underemployment is justified because of his mental and physical health needs.

[36] Where a payor alleges that underemployment is due to their reasonable health needs, the court will consider, in addition to others, the following principles and considerations:

1. A party must adduce credible evidence of both the health-related challenges and the impact on their ability to earn an income;
2. The court should consider whether the party has taken active steps to address and diminish any health-related factors that contributed to their underemployment, and whether those steps have led to an improvement in their capacity to earn; and
3. Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position: Kinsella v Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, at para. 171.

[37] Applying the facts of this case to the foregoing principles, the following findings are made:

1. Mr. Donaldson relies on the discharge statement from the Homewood Health Centre, dated November 11, 2021, and a letter from his treating physician, dated February 2, 2023. The discharge statement is two years old and the letter from his physician is six months old. Dr. Forman did not swear an affidavit and, as a result, the court did not have the benefit of direct evidence from Dr. Forman or any of the doctors treating Mr. Donaldson. Since Dr. Forman is a participant witness, he was not retained specifically to write a report about whether Mr. Donaldson’s current mental or physical health limitations reasonably justify his underemployment. Therefore, I find that Mr. Donaldson has not put forward credible evidence about how his health conditions impact his current ability to earn an income, or his ability in 2022.
2. I do find that Mr. Donaldson’s time at the Homewood Health Centre and the fact that Dr. Forman indicates that he is following his treatment plan and being proactive about maintaining a healthy lifestyle demonstrates that he is taking active steps to address and diminish any health-related factors that contributed to his underemployment in 2022. However, on the basis of Dr. Forman’s letter, I am not able to determine whether these steps have led to an improvement in Mr. Donaldson’s capacity to earn. Again, this is the case because Dr. Forman’s letter does not explain or outline what Mr. Donaldson’s treatment plan is. The letter is hearsay evidence and is six months stale dated; and
3. I do accept that Mr. Donaldson has mental health challenges and that he experienced physical health challenges in February 2022 when he initially intended to return to work after his inpatient treatment program at Homewood Health. I also accept that these mental health and physical health challenges likely impacted Mr. Donaldson’s income earning capacity from July 2021, when he took a leave of absence, until the spring of 2022. However, on the evidence on this record, I am not able to make a determination as to whether the nature and extent of this impact is such that Mr. Donaldson could not have begun to work in some capacity between the spring of 2022 and October 2022 when he started a job earning $40,000. Mr. Donaldson has not put forward any compelling evidence in this regard.

[38] I am not persuaded that Mr. Donaldson has met his onus in demonstrating that his underemployment beyond the spring of 2022 is reasonable based on his health needs. The letter put forward by Dr. Forman is inadmissible. Without an affidavit from Dr. Forman, the letter is hearsay. There is no necessity, or principled exception to the hearsay rule, which applies or has been argued. Further, the letter itself is not a proven business record.

[39] Even if I were to find that Dr. Forman’s letter is admissible, I find that his opinion should be given little weight. Dr. Forman’s letter is six months old and nothing in the letter demonstrates that Dr. Forman knows anything about Mr. Donaldson’s current job, the stress of the current job, any other available employment opportunities that may have existed for Mr. Donaldson in 2022 or in 2023, his psychiatric plan or what his follow-up treatment requires. Dr. Forman’s statement that Mr. Donaldson finds his “job environment much less stressful and should allow him to not have any setbacks similar to what has occurred in past years with his previous employment” is double hearsay and does not assist Mr. Donaldson in meeting his onus.

[40] Finally, Mr. Donaldson’s lack of compliance with the Black order in terms of his failure to provide Ms. Duncan with the ongoing treatment notes of Dr. Forman and treatment plan is problematic. If Mr. Donaldson had complied with this order, the evidence the court needs to determine whether his current underemployment is justified would have been available. The failure to provide his ongoing treatment notes and future treatment plan leaves the court in an impossible position since it cannot be determined whether his current health condition is such that it justifies his underemployment.

[41] As found in Lindsay v. Jeffrey, 2014 ONCJ 1, I do not find that Mr. Donaldson has presented enough corroborative evidence to support his justification of underemployment. At para. 40, the court stated that, “[c]ogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.” Similarly, such cogent medical evidence was not present in the case at bar.

[42] Accordingly, I find that Mr. Donaldson’s underemployment for the period of July 2021 to and including May 2022 was justified based on his mental and physical health needs. For these 10 months, I accept that Mr. Donaldson was not able to earn an income and he was in receipt of LTD during that time period and until September 2022. Beyond the LTD income Mr. Donaldson earned, I am not inclined to impute any more income to him.

[43] For the period of May 2022 to the current date, I do not find that Mr. Donaldson should be excused from his underemployment and, as such, I am prepared to impute income to him for these 15 months (May 2022 to and including August 2023). However, Ms. Duncan seeks an order that during the retroactive time period prior to September 2023, Mr. Donaldson be imputed with the income he was earning when they agreed to a reduced support arrangement, namely his LTD income of $76,165 a year. I am persuaded that Ms. Duncan’s approach is reasonable in the circumstances, particularly since the evidence suggests that he was in receipt of LTD income until September 1, 2022.

[44] This brings me to the third part of the imputation of income test set out in Drygala v. Pauli. This portion of the test asks what level of income is reasonable to impute to Mr. Donaldson? Ms. Duncan argues that the right level of imputed income is what he was earning historically, namely $150,000 a year as a base salary. Mr. Donaldson, on the other hand, argues that the only income that should be imputed to him is what he is currently earning, namely $66,000 a year.

[45] Section 19 of the CSG is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala v. Pauli, at para. 44.

[46] In Skinner v. Skinner, the recipient wife sought to impute income to the payor father on the basis that he was intentionally underemployed. The father worked in the construction industry. The father was diagnosed with bipolar disorder and claimed he could not work full-time due to ongoing mental health issues. The court found that there was a period of time where the father was excused from his intentional underemployment, but there was also a period of time where there was insufficient evidence that he was unable to work full-time. The court imputed income to him on the basis of full-time employment during that time: at para 32.

[47] In L.M.L. v. S.L.G., the court found that the payor father was intentionally underemployed without any reasonable justification the year following medical leave from his job. The court held that the medical evidence provided by the payor did not suggest the payor was otherwise incapable of finding other employment and that he had failed to justify his employment choices in a reasoned, practical, and compelling way. The court imputed income to the payor based on his income prior to his medical leave on the basis that he was capable of earning that income based on his training, experience, current state of health, and that the payor’s previous job opportunity remained open to him: at paras. 48 – 56, 73.

[48] In this case, there is no evidence before me that Mr. Donaldson’s previous job opportunity remains open to him or that a similar management job is available to him in Huntsville where he will be able to earn $150,000. While not in a managerial position, Mr. Donaldson has sought employment in the same construction industry in which he worked during the marriage.

[49] To select an income of $150,000 a year for Mr. Donaldson there must be something in the evidence to demonstrate that there is an opportunity for him to gain a construction-related position that pays an annual salary in that sum in Huntsville, Ontario where he now lives. In paragraph 46 of Drygala v. Pauli, the court states, “[i]f a parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history and impute an appropriate percentage thereof.” It is on this basis that Ms. Duncan asks the court to rely on Mr. Donaldson’s past income earning history as the basis for imputing him with that level of income.

[50] In the case at bar, Mr. Donaldson has only sworn one financial statement, dated November 14, 2022. This statement provides that he purchased a $90,000 boat (in which he lived), and as of December 2022, he had a balance of $50,000 in his TD chequing account. In Lindsay v. Jeffrey, the court found that the payor had made several large purchases, including a truck and television while claiming to have nominal income. The court determined “[t]hese are not the actions of a person with limited means”: at para. 42. Similarly, Mr. Donaldson had made purchases while also claiming to have nominal income from which to pay spousal support and sporadic child support.

[51] Further, upon Ms. Duncan’s receipt of his bank statements for 2021 and 2022, her counsel asked Mr. Donaldson to provide explanations for large deposits, one in the sum of $10,000, one for $49,980 (these are the proceeds of sale of his Marant stock), and one for $54,644.85 made in September 2022. Mr. Donaldson was also asked to explain large withdrawals he made from his bank accounts. However, he failed to answer these questions. These deposits and withdrawals all took place when Mr. Donaldson was not complying with the parties’ agreement that he pay reduced child and spousal support.

[52] In all of these circumstances, I find that it is reasonable to impute Mr. Donaldson with the income he was earning from LTD of $76,165 a year from August 1, 2021 to and including August 1, 2023. For the period starting September 1, 2023, I find that Mr. Donaldson should be imputed with an income that is less than that proposed by Ms. Duncan of $150,000 a year but more than his current income of $65,000 a year. In these circumstances, I find it reasonable to impute Mr. Donaldson with an income of $110,000 a year from September 1, 2023 onward.

Issue Two: What is the quantum of child and/or spousal support arrears owing to Ms. Duncan pursuant to the separation agreement, if any?

[53] As explained above, Ms. Duncan is not seeking to obtain child support arrears on a retroactive imputed income for Mr. Donaldson. Rather, she seeks payment of child support arrears which accumulated under their separation agreement from April 2021 to and including July 2021, when he was obliged to pay her table child support of $2,698 a month, and then from August 2021 to the present date, when she agreed to receive a without-prejudice reduced sum of table child support of $1,512 a month, based on Mr. Donaldson’s LTD income.

[54] Mr. Donaldson argues that he owes no child or spousal support arrears. In essence, he is seeking a retroactive variation downward of his child support obligations because of the decrease in his income. He did not frame his argument in that manner during the motion but there is no other way to explain his position on the record before me.

[55] Retroactive variation applications of child support require courts to weigh the certainty and predictability provided by an existing order or agreement against the need for flexibility in a system that ties support to fluctuating payor income. Given the informational asymmetry between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication: Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, at paras. 4 and 7.

[56] Section 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) confers discretion on a judge to vary, suspect, or rescind child support arrears. Mr. Donaldson seeks a retroactive decrease in his support obligations because of a past change in circumstances. The change is the drop in income to $40,000 and then an increase in his income to $65,000, which he argues impacts his ability to pay child and spousal support pursuant to the separation agreement.

[57] Various courts have ruled that failing to make financial disclosure is blameworthy conduct. “Blameworthy conduct” does not simply extend to the most egregious cases of deception or intentional evasion. It may also extend to cases of mere passivity and “taking the path of least resistance”: Colucci, at para. 41, citing Burchill v. Roberts, 2013 BCCA 39, 41 B.C.L.R. (5th) 217, at para. 30.

[58] Colucci provides the framework a payor must follow when seeking a retroactive decrease in his/her child support obligations. The framework is as follows:

1. Firstly, a payor seeking a downward retroactive change must first show a past change in circumstances under s.17(4) of the Divorce Act. Section 14 of the CSG lists situations constituting a change in circumstances for the purpose of s. 17(4) of the Divorce Act: at para 59. To meet the threshold, the payor has the onus to disclose sufficient reliable evidence for the court to determine when and how far their income fell and to ascertain whether the change was significant, long lasting, and not one of choice: at paras. 61 and 62. Mr. Donaldson’s only disclosure of his first drop in income to $40,000 was an email he personally sent Ms. Duncan. He gave no details of his employment, the name of his employer, no description of his duties, or whether he was working full or part time. He now asks the court to find he owes no arrears of child or spousal support, but he has failed to give the court any evidence to demonstrate that this decrease was not one of choice. As stated in paragraph 62 of Colucci, “the payor cannot ask the court to make findings on income that are contrary to the recipient’s interest ‘while at the same time shielding information that is relevant to the determination of their income behind a protective wall’”: at para. 62, citing Templeton v. Nuttall, 2018 ONSC 815, at para. 67.
2. Once a material change in circumstances is established, there is a presumption that arises in favour of retroactivity decreasing the child support to the date the payor gave effective notice of his change in circumstances, provided the payor gives disclosure of available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation. Colucci also provides that in decrease cases, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately”: at para. 88, citing Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201 at para. 62. I find that Mr. Donaldson did not meet his onus to provide Ms. Duncan with reasonable proof that was sufficient for Ms. Duncan to assess his changed circumstances in a meaningful way. Ms. Duncan, as the support recipient, is entitled to expect that the parties’ last agreement (i.e., the reduced child and spousal support based on Mr. Donaldson’s LTD income) will be complied with unless they are in receipt of reasonable proof that a relevant change in Mr. Donaldson’s circumstances has occurred. Mr. Donaldson notified Ms. Duncan of a change in his income but did not give sufficient information to explain the reduced income, nor did he take steps to formally vary the amount of child and spousal support payable under the terms of the parties’ separation agreement.
3. The court, in any event, retains discretion to depart from the presumptive date of retroactivity (i.e., when Mr. Donaldson gave Ms. Duncan notice of the drop in his income) where the result would be unfair in the circumstances of a particular case. This is when the four factors from D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 come into play. The factors, and the application of the facts of this case to the factors, are as follows: i. The first factor is whether the payor has an understandable reason for the delay in giving notice, such as having a health problem or other difficulties that prevented the payor from confronting the situation: at paras. 100 – 104. In this case, Mr. Donaldson did not delay in telling Ms. Duncan about his reduced income. He simply did not provide sufficient disclosure or information about why his income was so vastly reduced. Further, neither party argued that he delayed in giving notice. ii. The second factor is the payor’s conduct. Blameworthy conduct is conduct that “has the effect of privileging the payors interests over the child’s right to support”: at para. 106. It has been held that if a payor provides effective notice but fails to communicate and disclose information on an ongoing basis after the date of effective notice, the payor’s actions may militate in favour of abbreviating the period of retroactivity: Colucci, at para. 102. This is the situation in the case at bar. Mr. Donaldson sent Ms. Duncan an email that his income had dropped to $40,000 but failed to provide further information or communicate with her on an ongoing basis. Even when he communicated that his income had increased to $66,000, he failed to provide her with ongoing treatment notes or treatment plans, even when he was ordered to do so by Black J. in January 2023. iii. The third factor is the circumstances of the children. If the children have experienced hardship or are currently in need, this factor militates in favour of a shorter period of retroactivity: at paras. 110 – 113. In this case, the children had an ongoing need and Ms. Duncan’s evidence is that their lifestyle had drastically changed. Ms. Duncan re-entered the workforce after 16 years to mitigate the damage the children were experiencing as a result of Mr. Donaldson’s unilateral reduction in child and spousal support. iv. The fourth factor is the hardship to the payor if the period of retroactivity is not lengthened to the date of effective notice of the drop in his income: at paras. 114 –116. Mr. Donaldson did not adduce any evidence to “establish real facts” supporting a finding of hardship: Goulding v. Keck, 2014 ABCA 138, 373 D.L.R. (4th) 673, at para. 57; Colucci, at para. 107.

[59] Mr. Donaldson paid inconsistent child and spousal support to Ms. Duncan in 2022. Ms. Duncan applied all of the amounts paid to her, first toward Mr. Donaldson’s child support obligation, and then to spousal support. She submits that all amounts paid by Mr. Donaldson, however, are captured in her arrears calculation.

[60] I am not persuaded that Mr. Donaldson is entitled to a retroactive decrease in his child or spousal support payments. Accordingly, the amount of child support table arrears, spousal support arrears, and s. 7 expenses must be determined.

Child Support Arrears

[61] My calculation is that Mr. Donaldson owes Ms. Duncan the total sum of $13,650.32 in table child support from April 2021 to and including August 30, 2023. The calculation is as follows:

1. In 2021, he owes table child support of $10,231.80 because, i. For the months of April, May, June, and July 2021, he was obliged to pay table child support of $2,698 a month x 4 months = $10,792 and he paid child support of $5,536, leaving child support arrears of $5,256. ii. For the months of August 2021 to and including December 2021, he was obliged to pay table child support of $1,512 a month x 5 months = $7,560 and he paid child support of $2,584.20, leaving child support arrears of $4,975.80.
2. In 2022, he owes no table child support because for the months of January 2021 to and including December 2021, he was obliged to pay table child support of $1,512 a month x 12 months = $18,144 and he paid $18,144.
3. In 2023, he owes table child support of $3,418.52 because for the months of January to and including August 2023 he was obliged to pay table child support of $1,512 a month x 8 months = $12,096 and he paid $8,677.48, leaving child support arrears of $3,418.52.

[62] I note that Ms. Duncan calculates Mr. Donaldson’s table child support arrears to be $14,849.32. The difference between my findings and Ms. Duncan’s calculation is $1,199.

Spousal Support Arrears

[63] My calculation is that Mr. Donaldson owes Ms. Duncan net spousal support arrears of $18,614.80. The calculation is as follows:

1. In 2021, he owes net spousal support arrears of $9,912 because, i. For the months of April, May, June, and July 2021, he was obliged to pay spousal support of $2,128 a month to Ms. Duncan, which would have netted her $2,103 a month since she was earning no income x 4 months = $8,412. During these four months, he paid $3,000 in spousal support, leaving net spousal support arrears of $5,412. ii. For the months of August 2021 to and including December 2021, he was obliged to pay spousal support of $1,000 to Ms. Duncan, which would have netted her $1,000 a month since she was earning no income x 5 months = $5,000. During these 5 months, he paid $500 in spousal support, leaving net spousal support arrears of $4,500.
2. For 2022, he was obliged to pay spousal support of $1,000 a month to Ms. Duncan, which would have netted her $1,000 in January and $643 a month x 11 months for February to December 2022, since she was earning $48,000 a year = $8,073. During these 12 months, he paid $4,561.20, leaving net spousal support arrears of $3,511.80.
3. For 2023 thus far, he was obliged to pay spousal support of $1,000 a month to Ms. Duncan, which would have netted her $787 a month for January to March x 3 months of $2,361 and $566 a month x 5 months from April to August 2023, when she started to earn $56,000 a year = $2,830, for a total of $5,191. He paid no spousal support in 2023, leaving spousal support arrears of $5,191.

[64] My calculation of the spousal support arrears differs from Ms. Duncan’s calculation which was $25,350.80. This is a difference of $6,736.

[65] In this case, Mr. Donaldson’s obligation to pay both child and spousal support arises from a separation agreement. Ms. Duncan and the three children continued to need child and spousal support in 2022 and 2023. Mr. Donaldson unilaterally reduced his child support payments during this time, and he ceased paying spousal support altogether, despite the clear term in the separation agreement that required him to pay until further agreement of the parties.

[66] Mr. Donaldson did not put forth any evidence of hardship that would be occasioned to him if he were ordered to pay child and/or spousal support arrears. Instead, he simply took the position that he owed no child or spousal support arrears.

[67] Mr. Donaldson did not file a sworn financial statement in this proceeding until November 14, 2022, despite having been served with Ms. Duncan’s application and financial statement in February 2022. The financial statement listed his gross income from all sources in the year prior to as $84,782.06. At that time, he was paying child and spousal support based on the temporary without prejudice agreement of Ms. Duncan that his income was $76,195. His budget lists expenses of $80,718.96. In order to meet this budget, Mr. Donaldson would have had to have been earning a much higher gross income to net $80,718.96. He lists no debt in his financial statement to explain how he is meeting his budget. Further, his sworn financial statement shows that he had $90,000 in a TD bank account as of November 14, 2022, and a boat worth $90,000.

[68] I find that Mr. Donaldson willfully decided not to comply with the terms of the separation agreement when he ceased making spousal support payments, when he did not contribute to the children’s s. 7 expenses, and when he reduced his child support payments unilaterally. Such wilful non-compliance should not be condoned or rewarded by the court: DiFrancesco v. Couto, (2001), 56 O.R. (3d) 263 (Ont. C.A.), at para. 25.

[69] Further, Mr. Donaldson did not provide annual disclosure as required by the terms of the separation agreement. Rather, he declared his reduced income, without giving details about his employment or proof thereof. The court has frowned upon payors who engage in self-help methods and unilaterally reduce support. The court has considered deliberate non-compliance as blameworthy conduct. This kind of conduct includes failure to pay a proportionate share of a child’s s. 7 expenses and failure to provide income tax returns: see, Shea v. Fraser, 2007 ONCA 224, 85 O.R. (3d) 28.

[70] In H. v. S., 2023 ONCJ 343, the court held that a brief email would not sufficiently put a support recipient on notice of a need to reduce child support. The specifics of the alleged change must be set out, along with sufficient evidence to support the legitimacy of the change: at para. 37.

[71] Accordingly, I find that Mr. Donaldson owes Ms. Duncan net monthly spousal support arrears totalling $18,614.80 for the period of July 1, 2021 to and including August 31, 2023.

Section 7 Expense Arrears

[72] Ms. Duncan seeks arrears of s. 7 expenses for the three children in the total sum of $16,719.34 for the period of July 2021 to August 2023.

[73] Mr. Donaldson denies that he owes any s. 7 expense arrears and submits that Ms. Duncan did not obtain his consent in writing to any of the expenses she claims he now owes as required under the separation agreement.

[74] Ms. Duncan acknowledges that she did not obtain Mr. Donaldson’s consent for many of the s. 7 expenses but maintains that she is entitled to receive s. 7 expense arrears because the specific expenses were enumerated in the parties’ separation agreement and, therefore, were known to Mr. Donaldson. Ms. Duncan also argues that when the parties agreed to a reduced child and spousal support amount in August 2021, they did not adjust the s. 7 expenses. As a result, Mr. Donaldson should have paid 80% of the s. 7 expenses she incurred from that point onward.

[75] The s. 7 expense clause in the parties’ separation agreement is a reiteration of s. 7 as set out in the CSG. However, an additional subparagraph was added to include any further additional expense agreed to by the parties in writing and that such consent not be unreasonably withheld.

[76] I do not agree that Mr. Donaldson should be obliged to pay 80% of the children’s s. 7 expenses when the parties acknowledged and agreed that his income from August 2021 onward was $76,165. Mr. Donaldson’s proportionate responsibility for the children’s s. 7 expenses onward ought to have reflected his changed income. I find as follows:

1. From August 1, 2021 to and including December 1, 2021, Mr. Donaldson should have paid 80% of the s. 7 expenses.
2. Commencing February 1, 2022, once Ms. Duncan began to earn $48,000 a year in 2022, Mr. Donaldson’s proportionate responsibility toward the children’s s. 7 expenses would have been 74.2% and Ms. Duncan’s proportionate responsibility toward these expenses would have been 25.8%.
3. Commencing April 1, 2023, when Ms. Duncan’s income increased to $56,000 a year, the parties’ proportionate responsibility toward the children’s s. 7 expenses should have been 76.5% for Mr. Donaldson and 23.5% for Ms. Duncan.
4. Commencing September 1, 2023, once I have imputed income to Mr. Donaldson of $110,000, Mr. Duncan’s proportionate responsibility for ongoing s. 7 expenses amounts to 66.2% and 33.8% for Ms. Duncan.

[77] The categories of s. 7 expense arrears claimed by Ms. Duncan were set out in Exhibit “H” to her affidavit sworn on July 17, 2023. My determination of which s. 7 expense arrears are legitimate expenses for which Mr. Donaldson ought to be responsible is set out below:

1. Prescriptions for the three children in 2022 totalling $146.94. I find that Mr. Donaldson ought to have paid 74.2% of these s. 7 expenses totalling $109.03.
2. Uninsured dental costs for two children totalling $355 in 2022. I find that Mr. Donaldson ought to have paid 74.2% of these s. 7 expenses totalling $263.41.
3. Before and after care for one child, including summer camp for 2022 totalling $7,860.72. Given that Ms. Duncan started to work out of the home in January 2022, this is a reasonable and necessary s. 7 expense incurred to enable her to work full time. I find that Mr. Donaldson ought to have paid 74.2% of this expense, totalling $5,832.65.
4. Before and after care for one child, including summer care in 2023, totalling $3,095. I find that Mr. Donaldson ought to have paid 74.2% of the January, February, and March 2023 expenses, which totalled $1,230.98. For the expenses from April to August 2023, he ought to have paid 76.5% of these expenses totalling $436.05, for a total of $1,667.03.
5. Tutoring for one child of $630 from September 1, 2022 to January 1, 2023. I find that Mr. Donaldson ought to have paid 74.2% of this expense, totalling $467.46.
6. Summer camp for the youngest child in 2023 of $516. This summer camp fee was incurred in addition to the before and after care for the child and was not communicated to Mr. Donaldson. As such, I am of the view that his consent ought to have been obtained prior to Ms. Duncan looking for him to contribute toward this s. 7 expense.
7. Extracurricular activities for all children in 2022 of $646.58. I find that Mr. Donaldson ought to have paid 74.2% of these expenses, totalling $479.76.
8. Extracurricular swimming lesson for the youngest child in 2023 of $75. I find that Mr. Donaldson ought to have paid 76.5% of this expense, totalling $57.38.
9. Presto passes for the two older children for 4 months in 2021 and all of 2022 of $2,800. Given that Ms. Duncan was working out of the home for all of 2022 and onward, this is a reasonable and necessary expense. It is also in the children’s best interests to which Mr. Donaldson ought to have contributed 74.2%, totalling $2,077.60.
10. Presto passes for the two older children for 2023 of $1,200. I find that Mr. Donaldson ought to have contributed 76.5% of this expense, totalling $918.00.
11. Via Rail tickets for university visits of $1,118.34. I do not find this to be a legitimate s. 7 expense to which Mr. Donaldson ought to contribute. These train tickets were to enable the oldest child to visit universities in different cities. Mr. Donaldson’s consent ought to have been obtained prior to Ms. Duncan incurring these expenses and expecting his contribution.
12. School expenses of $480.63 incurred in 2022. I find that Mr. Donaldson ought to have contributed 74.2% percent of the graduation photos and the university enrollment fees, totalling $161.08. I do not find that the ski trip was consented to by Mr. Donaldson and, as a result, he ought not have to contribute his 74.2% share of this cost.

[78] Accordingly, I find that Mr. Donaldson owes Ms. Duncan s. 7 expense arrears of $10,533.676 and that he shall pay these arrears within 30 days from the release of this Endorsement.

Issue Three: What is Mr. Donaldson’s ongoing child support obligation?

[79] Given that I have found that it is reasonable to impute Mr. Donaldson with an income of $110,000 commencing September 1, 2023, it follows that table child support for the two children living with Ms. Duncan, and the one child living with Ms. Duncan in the summer months only, amounts to $1,755 a month, or $405 a week. At that level of annual income, and Ms. Duncan earning $56,000 a year, Mr. Donaldson would be obliged to pay his proportionate share of the children’s s. 7 expenses on the basis of him paying 66.2% and Ms. Duncan paying 33.8%.

[80] On June 1, 2024, and until the trial of this matter is heard or until further agreement of the parties or court order, the parties shall recalculate Mr. Donaldson’s child support obligation based on the gross income he actually earned. The exception to this is that if he earns less than $110,000 a year which I have imputed to him, then he shall continue to be imputed with that level of income.

Issue four: What is Mr. Donaldson’s ongoing spousal support obligation, if any?

[81] Ms. Duncan seeks an order that Mr. Donaldson pay ongoing spousal support to her in the sum of $1,000 a month. Mr. Donaldson seeks an order terminating his spousal support obligation starting January 1, 2023.

[82] Given the length of the parties’ marriage and the fact that Ms. Duncan was a stay-at-home mother and looked after the parties’ three children and household for 16 years while Mr. Donaldson pursued his career, I find that Ms. Duncan has a clear compensatory and needs based entitlement to spousal support. Her compensatory claim is based on Ms. Duncan’s economic loss and disadvantage she suffered as a result of the role she adopted during the marriage and the conferral on Mr. Donaldson of an economic benefit to allow him to pursue his career path without compensation. Her needs-based claim arises because of her inability to meet the needs of herself and the children as well as the general decline she and the children suffered in their standard of living as a result of the separation. It also reflects the economic interdependency that existed between the parties by virtue of this marriage.

[83] In fact, when the parties executed the separation agreement, they recognized Ms. Duncan’s clear entitlement to spousal support and consented to Mr. Donaldson paying her spousal support on the mid-range of the SSAGs. Further, they agreed that when they annually re-calculated Mr. Donaldson’s spousal support obligation, they would do so looking at the difference between his base salary of $150,000 and his gross earned income and use the mid-range of the SSAGs to determine the ongoing spousal support.

[84] When Mr. Donaldson began to receive his LTD income of $76,165 a year, the parties agreed to a without prejudice reduction in both his child and spousal support payments. Since Mr. Donaldson’s LTD income was about half of what he had been earning at the time of the execution of the separation agreement, Ms. Duncan accepted spousal support of about half of what he had been paying, namely $1,000 a month.

[85] In my determination of the spousal support arrears owing by Mr. Donaldson, I have based the calculation on his obligation to pay Ms. Duncan $1,000 a month. I have declined to terminate Mr. Donaldson’s spousal support obligation to Ms. Duncan as of January 1, 2023 as he seeks. There are two reasons for this. Firstly, because I have imputed him with his LTD income of $76,165 until and including August 1, 2023. Secondly, because even if the SSAGs produced a zero range of spousal support, as Mr. Donaldson suggests at his current income of $65,000 a year, I am imputing him with an income of $110,000 a year. Even if I were to accept that his current income of $65,000 a year is the correct income figure for support purposes, a zero range for spousal support should not be confused with a lack of entitlement to spousal support on Ms. Duncan’s part.

[86] In terms of ongoing spousal support, on an imputed income of $110,000 a year for Mr. Donaldson and Ms. Duncan’s income of $56,000 a year, the SSAGs produce a zero range of spousal support. As the Revised User Guidelines of the SSAGs explain, under the with child support formula there can be an income disparity and yet nothing but zeros for the range of spousal support. The SSAGs at Chapter 4 note, “[i]t is a mistake to automatically assume that this means no entitlement” and “zeros may just reflect the priority given to child support and the reality there is ‘no ability to pay’ left despite a significant compensatory entitlement.” [4] Accordingly, on an ongoing and temporary basis, Mr. Donaldson shall not be ordered to pay spousal support. This issue shall be determined at trial. If it is determined at trial that there remains no ability on Mr. Donaldson’s part to pay spousal support, then once the children finish post-secondary education and the ability to pay returns for Mr. Donaldson, Ms. Duncan’s spousal support claim may revive under s. 15.3 of the Divorce Act. This order is without prejudice to Ms. Duncan’s right to argue she is entitled to spousal support retroactively to September 1, 2023 at the trial.

[87] I do not accept Mr. Donaldson’s argument that Ms. Duncan has become self-sufficient and/or that her re-partnering has eliminated her entitlement to spousal support. Paragraph 7.3 of the parties’ separation agreement states that the SSAGs contemplate an indefinite duration for spousal support, with a minimum duration of 9 years and a maximum duration of 18 years. Further, paragraph 7.11 of the parties’ separation agreement provides that spousal support may be changed if there is a material change in circumstances. One of the possible changes listed in this subparagraph is Ms. Duncan’s cohabitation with another person in a relationship resembling marriage for more than 8 months. This is only a potential trigger for a spousal support change but not a determining factor.

[88] Accordingly, Mr. Donaldson’s motion to terminate his spousal support obligation as of January 1, 2023 is dismissed.

Issue Five: Has Mr. Donaldson complied with the life insurance obligations and property payment on account of his Murant shares set out in the parties’ separation agreement? Has Ms. Duncan complied with the RESP Fund division set out in the parties’ separation agreement?

[89] The separation agreement required Mr. Donaldson to designate Ms. Duncan as the irrevocable beneficiary of $281,016 of his life insurance policy with a face value of $1,000,000, as security for his outstanding child support obligations at his death.

[90] There is no information on the record identifying the face value of Mr. Donaldson’s life insurance policy. There is a reference in his most recent sworn financial statement that he has a life insurance policy with Sunlife which has a cash surrender value of $10,000.

[91] Within 30 days from the release of this Endorsement, Mr. Donaldson shall produce a copy of his life insurance policy verifying the face value of the policy. This is so it can be determined whether he continues to have a life insurance policy of which Ms. Duncan is designated beneficiary of $281,016 as sufficient security for his child support obligations on his death. If he does not, then the dispute resolution sections of the separation agreement shall be followed.

RESP Funds and Marant Construction Limited Shares

[92] Pursuant to paragraphs 5.28 and 5.29 of the parties’ separation agreement, Ms. Duncan was to withdraw the funds from the RESP account for the children with RBC account ending in #4496 in the amount of $23,213.54, close the account, and divide the funds equally with Mr. Donaldson so each party could set up their own individual RESP accounts for the children. Ms. Duncan did not do this. She is, however, intending to use the RESP account to fund the oldest child’s post-secondary educational expenses which commence this month when she will be attending McGill University.

[93] Pursuant to paragraph 10.8 of the parties’ separation agreement, the parties agree that the proceeds from the sale of Mr. Donaldson’s fully vested Marant stocks to be sold in February 2022 will be divided equally by the parties. When Mr. Donaldson’s Marant stocks were sold, he received a total of $49,980, 50% of which came to $24,900. Since Ms. Duncan had not withdrawn the RESP funds and paid Mr. Donaldson 50% of the RESP funds of $11,750, he deducted $11,750 from the $24,900 Marant stock proceeds and paid her $13,240. Ms. Duncan asks for an order that Mr. Donaldson repay the $11,750 to her.

[94] It was clearly not the intention of the parties that Mr. Donaldson or Ms. Duncan would receive 50% of the RESPs for their own personal benefit. Rather, the goal was for each of them to have a RESP fund for the children, from which he/she could make his/her s. 7 contribution for post-secondary educational expenses for the children.

[95] Ms. Duncan seeks an order requiring Mr. Donaldson to pay her the sum of $11,750 he improperly deducted from the Marant stock proceeds. I find this is an appropriate order.

[96] I also find that Ms. Duncan shall within 7 days of the release of this Endorsement withdraw the funds from the RESP for the children at RBC and transfer 50% of the fees to Mr. Donaldson so he can establish his own RESP for the children, from which he can pay his proportionate share of the children’s university expenses. If Ms. Duncan has withdrawn any of the RESP funds to pay for the oldest child’s tuition or post-secondary educational expenses, the funds withdrawn shall be considered an equal contribution by both parties and the balance shall be shared equally so each party can establish his/her own RESP for the children with the same amount in his/her RESP.

ORDER

[97] This court makes the following order:

1. Mr. Donaldson’s motion to terminate his spousal support as of January 1, 2023 is hereby dismissed.
2. Within thirty days from the release of this Endorsement, Mr. Donaldson shall pay to Ms. Duncan the following sums on account of arrears of child support for the period of July 1, 2021 to and including August 31, 2023: i. The sum of $14,849.32 as table child support arrears; and ii. The sum of $10,533.676 as s. 7 expense arrears.
3. Within thirty days from the release of this Endorsement, Mr. Donaldson shall pay to Ms. Duncan the net sum of $18,614.80 on account of arrears of spousal support for the period July 1, 2021 to and including August 31, 2023.
4. Commencing September 1, 2023, and on the first day of each following month until further court order or agreement of the parties, Mr. Donaldson shall pay to Ms. Duncan temporary and without prejudice child support in the sum of $1,755 a month as table child support for the parties’ three children, or $405 a week (calculated as $1,755 x 12 = $21,060/52 = $405 a week). This amount considers the fact that the parties’ oldest child is away at school for post-secondary education but will be residing with Ms. Duncan for the summer months. This child support figure is based on Mr. Donaldson being imputed with an income of $110,000 a year.
5. On June 1, 2024, if the trial of this matter has not yet been heard, the parties shall calculate what Mr. Donaldson should have paid for child support based on an imputed income of $110,000 or his gross annual income, whichever amount is higher. The parties shall complete a DivorceMate calculation and Mr. Donaldson shall begin to pay spousal support to Ms. Duncan as soon as the SSAGs produce a with child support sum of spousal support at the mid-range of the SSAGs.
6. Commencing September 1, 2023, on a temporary without prejudice basis, and until a further court order or agreement of the parties, Mr. Donaldson shall not pay Ms. Duncan a monthly sum of spousal support. This does not take away from the fact that Ms. Duncan has a clear entitlement to spousal support on both a compensatory and needs basis to be argued at trial. This is without prejudice to Ms. Duncan’s right to argue she is entitled to more spousal support retroactive to September 1, 2023.
7. Commencing September 1, 2023, and until a further court order or agreement of the parties, Mr. Donaldson shall pay his proportionate share of the children’s ongoing s. 7 expenses by paying 66.2% of the enumerated expenses listed in paragraphs 5.6., 5.7, and 5.8 of the separation agreement, and Ms. Duncan paying 33.8% of same. Ms. Duncan is to send a list of the children’s proposed s. 7 expenses to Mr. Donaldson three times a year and Mr. Donaldson shall advise in writing within ten days of receiving the proposed expenses to Ms. Duncan whether he consents to the proposed expenses or not. If Mr. Donaldson does not respond within ten days of receiving the proposed list of s. 7 expenses, he shall be deemed to have consented to contributing his proportionate share of s. 7 expenses.
8. Within 30 days from the release of this Endorsement, Mr. Donaldson shall produce a copy of his life insurance policy verifying the face value of the policy so it can be determined whether he continues to have a life insurance policy of which Ms. Duncan is designated beneficiary of $281,016 as sufficient security for his child support obligations on his death. If he does not, then the dispute resolution sections of the separation agreement shall be followed to resolve this issue.
9. Within 7 days from the release of this Endorsement, Mr. Donaldson shall pay Ms. Duncan the sum of $11,750 which he improperly deducted from the Marant stock proceeds.
10. Within 7 days of the release of this Endorsement, Ms. Duncan shall withdraw the funds from the RESP for the children at RBC and transfer 50% of the funds to Mr. Donaldson so he can establish his own RESP for the children, from which he can pay his proportionate share of the children’s university expenses. Mr. Donaldson shall provide proof to Ms. Duncan that he has established his own RESP for the children within 20 days of receiving the RESP funds from Ms. Duncan.
11. SDO to issue.
12. Mr. Donaldson’s motion to reinstate his parenting time with the parties’ youngest child with the support of reintegration therapy shall be returned by him on a date agreeable to both parties.
13. All other terms of the parties’ separation agreement shall remain in full force and effect until further court order or agreement of the parties.
14. The parties shall schedule the first available Trial Management Conference date with the Toronto Family Law Trial office.
15. Within 5 days from the release of this Endorsement, counsel for both parties shall arrange a conference call with me at 9:00 a.m. on any weekday on a date agreeable to both counsel, to review the calculations of child and spousal support arrears referred to in this Endorsement and to compare these with the chart prepared by Ms. Duncan’s counsel to ensure there are no calculation errors.

September 11, 2023

M. Kraft J.

Footnotes

[1] The enumerated s. 7 expenses include a) child care expenses to allow one to work or be enrolled in education requirements for employment; b) medical and dental insurance premiums for the children; c) uninsured health care costs in excess of $100 a year; d) extraordinary children’s extra-curricular activities; e) post-secondary educational expenses; f) extraordinary expenses for children’s primary, secondary or other educational programs to meet their needs; and g) all other expenses agreed to in writing.

[2] The Homewood Health Centre discharge report is dated November 12, 2021.

[3] The letter from Dr. Noah Forman is dated February 2, 2023.

[4] Government of Canada, “Spousal Support Advisory Guidelines: The Revised User’s Guide” (28 December 2022) 3 Entitlement SSAG Chapter 4, online (Reports and Publications): https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ssag-ldpae/chap4.html.