Court File and Parties

COURT FILE NO.: FC-20-235 DATE: 2023/09/25 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JULIAN MALONE Applicant – and – NATASHA CAPPON Respondent

Counsel: Jonathan M. Richardson, counsel for the Applicant Alexandra Kirschbaum, counsel for the Respondent

HEARD: Trial heard on January 30, 31, February 1, 2, 3, March 27, 28, 29, 30, 31, April 25, 26 and 28, 2023.

TRIAL decision – part two

AUDET J.

[1] Following the release of Part I of this trial decision (Malone v. Cappon, 2023 ONSC 4344), this is my decision on the remaining issues of ongoing child and spousal support, and the future of the parties’ frozen embryos.

EMBRYOS

[2] The parties have several frozen embryos kept in storage at a facility operated by Boston Reproductive Medicine, PLLC, also referred to as “CCRM Fertility” or “CCRM Boston”. This facility is located in the area of Boston, Massachusetts. It is not disputed that CCRM Fertility requires both parties to consent, or a Court Order, before embryos can be destroyed or otherwise dealt with.

[3] The father seeks an order for the destruction of the frozen embryos. The mother does not want the embryos to be destroyed, citing moral and religious concerns. Instead, she wishes to relocate the embryos to a more economically efficient facility for indefinite storage at her cost (it currently costs $1,000 U.S. to keep them stored at CCRM Fertility). After the deaths of one or both of the parties, the mother wishes to have the embryos donated to a credible facility to assist a family in reproduction.

[4] The parties’ rights and obligations in relation to the embryos are governed by the detailed contract that they signed with CCRM Fertility. The law applicable to this contract is that applicable in the State of Massachusetts, not the Canadian Assisted Human Reproduction Act, S.C. 2004, c. 2. In my view, this Court does not have jurisdiction to make an order related to embryos that are located outside of Canada.

[5] Therefore, I decline making any order in relation to the parties’ embryos.

SPOUSAL SUPPORT

[6] The mother takes the position that she is entitled to spousal support, both on a compensatory and non-compensatory basis. The father takes the position that the mother is not entitled to spousal support, and that she should be imputed an income commensurate with full-time employment (she is currently working four days per week). Alternatively, he states that for as long as he is required to pay child support and the parties are required to contribute to the children’s significant s. 7 expenses (which include private school costs), there is no ability on his part to pay spousal support.

[7] The Court’s ability to make a spousal support order and the principles applicable to such orders are set out in section 15.2 of the Divorce Act:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(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.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(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.

[8] In Part I of this trial decision, I have outlined my findings in relation to the parties’ roles during their relationship. I concluded that both took an active part in raising the children and in caring for them. Both parties took parental leaves after the birth of the children (it being acknowledged that only the mother did when A.M. was born), both were entitled to paid leave and benefits during their leave, and both returned to full-time employment thereafter.

[9] Both parties are highly educated and career-driven. The father is a practicing lawyer and throughout most (if not all) of the parties’ marriage, he was employed by the Federal Government. At the time of this trial, he occupied the position of Director and General Counsel of the Tax Department, earning $212,229 per annum. He works full-time hours.

[10] The mother holds a degree in Environmental Management and Labour Management Relations as well as a Master’s degree in Business. After working in the mining, and the international banking fields, she specialized in corporate social responsibility and sustainable development. At the time of this trial, she was employed as a Policy Advisor with Innovation, Science and Economics Development Canada, working four days per week, earning $85,418 per annum (as of December 2022).

[11] The mother testified that having to remain in Ottawa impacted her ability to move up the ladder in the financial and international fields. She stated that if she had been able to remain in Toronto instead of moving to Ottawa, she would have been provided with many more opportunities to move up and work abroad in international banks. These professional opportunities have been missed, according to her, because the father’s career took priority and advancement for him meant that he needed to be in Ottawa.

[12] In my view, the mother’s position is not borne out by the evidence as a whole. Other than her bald assertions to that effect, she presented no evidence whatsoever of missed employment opportunities as a result of being in Ottawa or as a result of her parental obligations. There is no evidence to support her contention that to advance as a lawyer, the father needed to be in Ottawa rather than in Toronto. The evidence before me makes it clear that when they married, both parties were very focused on advancing their respective careers, and both were united in their desire to have children. Further, many of the parties’ extended family members, including the mother’s parents, reside here in Ottawa. The evidence before me supports the conclusion that this was the main reason for the parties’ decision to establish their family in Ottawa.

[13] There is no evidence before me to support the conclusion that the mother’s career or financial advancement have been impaired as a result of subordinating her career to that of the father or adopting a less lucrative career path in order to accommodate the needs of the family. I find that whatever professional opportunities were missed by either party during their marriage, if any, was the result of their lifestyle choices rather than the need for one to support the other’s career or the needs of their family.

[14] At the time the parties separated, the mother’s full-time employment with Export Development Canada (“EDC”) had been terminated (as of December 2018) and she had accepted an employment offer from Innovation, Science and Economics Development Canada, as of July 1, 2019, and negotiated a four-day work schedule with them. She was to earn roughly $75,000 per annum instead of the $94,219 salary paid for full-time work, plus the financial compensation set out in the severance package received from EDC.

[15] Pursuant to the terms of that severance package, if the mother secured a new position outside of EDC prior to December 5, 2019 and earned an amount equal to or more than $88,171 per year, she would have been deemed to have resigned from EDC and would have lost a considerable part of the financial benefits available to her as part of her severance package.

[16] I find as a fact that this was the main consideration for the mother negotiating and ultimately accepting a four-day schedule with her new employer rather than a full-time position, as it made far more financial sense for her to work a reduced work week until the end of her severance package (December 2019). The mother’s intention behind accepting a four-day work week schedule is made clear in a letter from the mother’s lawyer to the father’s lawyer (dated in August 2019), but more importantly, in an email exchanged between the parties on February 26, 2019, when the mother was considering all her employment options. In that email, the mother states:

Note that either way I would rather work only 4 days a week in a new job than 5 days a week. I'd like the extra time with family and to continue searching for opportunities.

There are other better opportunities that I've applied for (i.e. Manager job at GAC (also EC-06 but with better title) and Director job at PSC (interview on Mar. 20th if selected), and at least one or two more that I intend on applying for (incl. one at the Manager level within Industry but on the Commerce Officer (CO) side instead of Economist side (EC)). However, it may be too risky to wait for those to pan out in light of the June election issue and one is never sure as to whether I'll be accepted through to interviews and then job offer or not.

[17] The issue before me is not whether it was reasonable for the mother to accept a four-day week position before the parties’ separation, or whether it was reasonable for her to continue to work in that part-time position for four years thereafter. As stated previously, the parties resolved the issue of spousal support from the date of their separation to the date of this trial. During that period, the children were under their mother’s primary care. In addition, within one year of the parties’ separation the COVID pandemic struck, and the children were not attending school in person for a while, putting a lot of pressure on the mother’s ability to work full-time given that she was required to assist and supervise the children as they attended virtual school. Once again, the issue of the mother’s entitlement to spousal support during that time was resolved between the parties.

[18] While it may very well have been reasonable for the mother to continue to work four days a week in those circumstances, the issue before me is whether it is reasonable for the mother to continue to do so in the current circumstances. By virtue of my earlier trial decision, two of the parties’ children are now sharing their time equally with each parent, with N.M. remaining in his mother’s primary care for the time being, as the reunification work takes its course.

[19] I find that it is no longer reasonable for the mother to maintain a four-day work week schedule at this time. The mother has a positive obligation to maximize her income in order to fully contribute to the children’s needs and significant s. 7 expenses (many of which she strongly advocated for). The mother does not dispute that there are employment opportunities for her to work five days per week. Her position is that full time hours are not available in her current work position, and she does not want to work elsewhere because she loves her current job which she finds very enjoyable.

[20] This is certainly a choice that is open to the mother to make, but not at the expense of the father. In my view, the mother is currently under-employed within the meaning of section 19 (a) of the Federal Child Support Guidelines, S.O.R./97-175, as am., and her under-employment is not required by the needs of the children or by her reasonable educational or health needs. There is no reason why the mother should not be employed on a full-time basis, five days per week, at this time. The mother’s position is classified as an EC-05, and according to the Collective Agreement in place for those employees, her 2023 full-time salary would be $101,999. This is the income that will be imputed upon her for the purpose of determining the parties’ child and spousal support obligations.

[21] Disparity between two spouses’ incomes, in and of itself, does not create an entitlement to spousal support (Lee v. Lee, 2014 BCCA 383; Berger v. Berger, 2016 ONCA 884). In this case, both parties are highly educated, have been employed on a full-time basis throughout their ten-year marriage (11-year cohabitation), hold permanent positions in secure and well-paying jobs, and will continue to share parental responsibilities and care for their children equally.

[22] In my view, the mother’s entitlement to spousal support would have been time-limited and based principally on her short-term transitional needs following the parties’ separation. The parties have now been separated for almost five years. Given the parenting arrangements that I have put into place by virtue of my earlier decision, the parties’ respective child support obligations and the significant s. 7 expenses that they have incurred and will continue to incur in the future for their three children (with the father assuming a much larger portion given his higher income), there is no ability on the part of the father to pay spousal support, even if there was continued needs-based entitlement.

[23] Based on the parties’ incomes above, the equal time-sharing arrangements in place for the younger two children, the residential arrangements for N.M. (who has his primary residence with this mother), and the private tuition expenses only (not taking into account all the other s. 7 expenses to be incurred for the children, such as extracurricular activities), the Spousal Support Advisory Guidelines suggest the following ranges of spousal support: low range: $0, mid-range: $300 and high range: $1,030.

[24] This is certainly not a case that would warrant the high range of spousal support. When one adds the significant expenses that the parties will incur on account of extracurricular activities (as detailed in my first decision, and which includes competitive hockey for N.M.), even the mid-range suggested by the SSAG will result in a nominal amount of spousal support, if any.

[25] For all the above reasons, I find that there is no obligation on the father to pay spousal support to the mother.

CHILD SUPPORT

[26] Based on the above, I make the following order in relation to child support:

1. Beginning on September 1, 2023, and every month thereafter until further order of the Court, based on the father’s income of $212,229, he shall pay monthly Table child support in the amount of $3,607 for the three children of the marriage.

2. Beginning on September 1, 2023, and every month thereafter until further order of the Court, based on the mother’s imputed income of $101,999, she shall pay monthly Table child support in the amount of $1,496 for the two children of the marriage who share their time equally between their parents, being C.M. and A.M.

3. The net result of the above is that the father owes the mother set-off child support in the amount of $2,111, beginning on September 1, 2023 and every month thereafter.

4. The parties shall share the net cost of the children’s special and extraordinary expenses in proportion to their incomes, with the father assuming 67.5% and the mother assuming 32.5%.

5. The parties shall reconcile any contributions owing within fourteen (14) days of receiving receipts from the other parent.

6. Both parties shall maintain the children as dependents on the extended health and dental plan available to them through their employment. The parties will cooperate to maximize coverage of the children's expenses through both plans. The uncovered portion of any medical or dental expenses are considered special expenses and will be shared by the parties proportionately.

7. Child support shall be reviewed on an annual basis as follows: a. the parties will exchange disclosure in accordance with section 21 of the Federal Child Support Guidelines on or before June 1st for the previous calendar year ("the applicable year"); b. they will use this information to adjust ongoing child support payable, including both the Table amount and the proportionate sharing of s. 7 expenses, as well as child support payable and the proportionate sharing of expenses during the applicable year; c. any change in the Table amount and the proportionate sharing of s. 7 expenses will commence retroactively to January 1st of each year; d. if one party has underpaid the Table amount for the applicable calendar year, he/she will pay to the other the additional amount owing for the applicable calendar in three equal installments commencing July 1st; e. if one party has overpaid the Table amount for the applicable calendar year, he/she will deduct the overpayment in three equal installments from his/her ongoing child support over three months commencing July 1st; f. the parties will also determine whether either party has over or under contributed to s. 7 expenses. Any over or under contribution by either party will be reconciled by July 1st.

8. Both parties shall maintain a policy of life insurance with a face value to be agreed upon between them, as security for their child support obligations. Both parties shall name each other as the irrevocable beneficiary, in trust for the children, of the entire face value of the policy for so long as support is payable. If the parties are unable to agree on the face value of the policy that they should be required to maintain, I can be spoken to.

9. The parties shall provide each other with a copy of their policy and the irrevocable beneficiary designation within 20 days from receipt of this decision. The parties are free to execute comprehensive Minutes of Settlement incorporating the standard life insurance provisions.

DIVORCE

[27] The parties were also seeking a divorce, which is granted today.

COSTS

[28] The father was successful on all issues in this trial. As such, he is presumptively entitled to his costs on a partial indemnity basis. If the parties are unable to agree on costs, I am prepared to consider written submissions on costs, not exceeding seven (7) pages, double-spaced (exclusive of Offers to Settle and Bills of Costs). The parties are warned that I will not read beyond the first seven pages of their submissions if they exceed seven pages.

[29] The parties’ written submissions shall be provided to me in accordance with the following timelines:

• The father to serve and file his submissions by October 13, 2023;
• The mother to serve and file her submissions by October 27, 2023; and
• The father’s brief reply, if any, shall be served and filed by November 3, 2023.

Justice J. Audet Released: September 25, 2023