Court File and Parties

COURT FILE NO.: FS-20-018690-0000 DATE: 20230815 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN SHIPTON Applicant – and – AAMIR SALEEM SHIPTON Respondent

Counsel: Michael Tweyman, for the Applicant David Tobin and Christina Hinds, for the Respondent

HEARD: February 21, 22, 23, 24, March 1, and April 28, 2023

Supplementary Reasons for Judgment – Support Calculations

AKAZAKI, J.

[1] In my reasons for judgment of March 29, 2023, I invited counsel to make submissions on the calculation of support payments and parenting time. On April 28, 2023, the court convened a supplementary sitting to hear trial submissions on the issue of parenting arrangements. On May 4, 2023, I released my decision allocating the parenting time and asked for counsel’s submissions on support calculations, pursuant to paragraphs 157 and 174.

[2] The main reason why I left the calculation of support open for further submission was that the Applicant’s claim for spousal support depended on the outcome of the suit for relocation of the child. She claimed spousal support on both compensatory and needs bases. However, she submitted that if permitted to move with the child she would be entitled only to compensatory spousal support for a brief time until she relocated and started working as an optometrist. The parenting time issue also depended on the outcome of the relocation request.

[3] In order to maintain consistency with the prior iterations of these trial decision, I will continue to refer to the Applicant as Kathleen and the Respondent as Aamir. As the recipient of the support, Kathleen has stated the issues as follows:

a. Aamir’s income for 2022 and 2023 b. Whether spousal support should be ordered at the middle of the range or high end of the range (or somewhere in between) c. The quantum of support given the above.

[4] Aamir has addressed these issues and has also added some points, to which Kathleen has further replied. The only additional issue raised by Aamir is an imputation of income to Kathleen for as long as she chose not to pursue retraining.

Aamir’s Income

[5] Kathleen accepts that Aamir’s annual income at trial was $112,213. However, in the 2022 income tax return that I had directed Aamir to produce in my May 4, 2023, reasons regarding parenting time, he disclosed $27,308.30 received from a former employer in relation to severance. Kathleen asks that this income be included for 2022 as non-recurring income.

[6] Aamir has admitted that the severance payment increased his 2022 income for the purpose of child support, with the result that he underpaid table child support by $3,248. He disputes its inclusion in the spousal support calculation. He relies on s. 6.7 of the SSAG, which recommends the use of income at the time of the trial because income fluctuations are often inevitable. (Since the 2022 period represents support claimed after the commencement of proceedings, it is not a claim for retroactive spousal support but a claim for arrears: Outaleb v. Waithe, 2021 ONSC 4330, at paras. 87-89 citing MacKinnon v. MacKinnon.)

[7] It is true that a spouse is not automatically entitled to increases of spousal support when the other spouse’s post-separation income increases: Thompson v. Thompson, 2013 ONSC 5500, at para. 103. The same principle should apply to a one-time increase. Unlike the Child Support Guidelines, there is no express statutory authority for imputation of income: Mann v. Mann, at para 15. The Divorce Act, s. 15.2(4), does not refer to income but, rather, to “means.”

[8] Here, Aamir left his job at IBM Canada in 2022, shortly after he went off disability. For all the years that he was on disability, the family faced financial stress. Kathleen went to work in the U.K. and thus delayed her ability to pursue training in Canada. Kathleen’s spousal support under the Divorce Act must reflect the consequences of the marriage, including the shared hardship after Aamir was injured in the car accident and developed post-MVA depression. The severance paid to Aamir when he left IBM Canada in 2022 would have been based on his entire length of service, both outside the timeline of the marriage and inside it. The severance he received also represented a loss of seniority with IBM and thus a resetting of the employment law clock for future employment loss. This distinguishes it from RSP income, the only consequence of which is to incur taxable income in the year in which it was drawn down.

[9] The word “means” may be sufficiently broad to encompass the severance as income, which he received, and the ability to earn it, which he mostly did not have in 2022. One would then have to consider what Kathleen’s argument would have been, had Aamir obtained the severance in the way people more frequently do – by losing his job instead of obtaining a new job and collecting severance as additional taxable income. Unless the unemployment became permanent and justified a material change in circumstance, most payor spouses would bear the temporary economic consequence of the job loss and the recipient spouse’s support would not diminish.

[10] The logic that dictates a predictable stream of income as a measure of a payor spouse’s “means” would also suggest that a temporary increase should not be used to boost the support if a temporary decrease would not be grounds for lowering it. Moreover, in the case of post-separation income increases, the authors of the SSAG stated, in s. 14.3, that the principles of spousal support militate against increasing support, especially if the marriage was not long:

There are two possible formulaic extremes here. At one extreme, one could decide that any post-separation income increase of the payor spouse should not affect the amount of spousal support. After all, some would suggest, the recipient is entitled to a sharing of the marital standard of living, but no more. Certainly, this bright-line method would be predictable and administratively simple. At the other extreme, one could argue that the formulas should just continue to be applied to any income increase for the payor. This again would offer a predictable result, but one which the basic principles of spousal support would not justify in all cases. This approach is most compelling after a long traditional marriage.

[11] The severance would not have reflected a predictable result. The hardship experienced by Kathleen in having had to work during the period prior to having the child will be compensated by other means, i.e., by ordering Aamir to help her qualify for a profession that is most likely going to allow her to earn much more money than if she stayed an optometrist in the U.K. or Ireland. The principles underlying spousal support under the Divorce Act therefore do not favour increasing Aamir’s means to pay temporarily for the 2022 year. Thus, I conclude that the income for the purpose of applying the SSAG will not be changed by the severance he received after the separation.

Imputation of Income to Kathleen

[12] Aamir has sought to attribute income to Kathleen for the period in which Kathleen does not pursue educational upgrading, and a notional amount for s. 7 expenses pursuant to para. 160 of my original reasons.

[13] Kathleen is correct in stating that I did not leave it open for imputation of income for Kathleen. I had structured the timing of the support to end based on Kathleen staying in Canada to pursue her professional status here and needing additional time to establish herself in practice.

[14] Aamir is correct in principle that, in isolation, the support should be calculated based on her means to earn income if she were not pursuing full-time studies. Kathleen indirectly admitted the logic by conceding an end to her support a period after being permitted to return to Ireland with the child. Aamir cannot benefit from the deemed self-sufficiency I have imposed from the timeline for completing the courses, and then claw back support by imputing minimum-wage income for any time Kathleen delays the professional trajectory.

[15] If Kathleen were to delay that pursuit in expectation of success at the Court of Appeal, the reversal of my child relocation decision would render the issue of her imputed income moot. The upholding of my decision could put Kathleen in the position of requesting an extension of the spousal support – only then could the issue of Kathleen’s earning capacity become material. Whether moot or premature, this post-trial circumstance does not lead to an issue that I should determine. I therefore decline the request to impute income to Kathleen for the period of spousal support during which Aamir is obliged to pay her.

SSAG Range

[16] Kathleen asks that the spousal support be determined in relation to the upper end of The Spousal Support Advisory Guidelines (SSAG) in order to reflect the “compensatory” spousal support appropriate for this case. In para. 159 of my original trial judgment, I stated that the mid-range amount of $2,332.00 was an appropriate base from which I would add on Aamir’s share of the various educational expenses Kathleen would incur to take her additional courses at the University of Waterloo. For the following reasons, I maintain the award of spousal support at the middle of the SSAG range. I do not agree with Aamir’s submission that the award should be at the low end of the scale, but I do agree that the future lump-sum amounts to cover educational expenses has compensated her for the actual “compensatory” aspect of his support obligation. It was a brief marriage, but one that had life-altering consequences to the parties. Neither the high end nor the low end of the range is appropriate.

[17] In her submission of July 14, 2023, Kathleen referred to para. 6 of my original trial judgment. I referred to the need to mitigate the delayed fulfilment of the mother’s career and to reverse the impact of traditional best interests of the child cases on women’s autonomy and economic mobility, both of which I later described in paras. 140-43. In her August 3, 2023, reply submission, she then recast that rationale by stating that the purpose of the support order I created was to compensate Kathleen for the denial of permission to relocate the child. I cannot agree with that characterization.

[18] The support order intended to allow Kathleen to regain her self-sufficiency was no more intended to compensate her for the denial of permission to relocate the child than the curtailment of support would have compensated Aamir if I had granted the permission. In either case, professional and economic self-sufficiency is a fact that leads to an end to support. Kathleen had failed to prove her main rationale for relocation of the child, because, as I cited in para. 58-71 of my original reasons, she did not prove she was professionally frustrated or economically disadvantaged by coming to Canada. Her evidence was that she made no effort to become an optometrist in Canada “while asking to move to Ireland.” Neither party introduced labour market evidence of optometrists in Toronto to compare her likely income here with the €65,000 annual salary offered by an optician’s store in Limerick, Ireland. Nor had she approached the college or school and found out that optometry in Toronto is a much less remunerative profession. Therefore, there was no reason to compensate Kathleen for keeping her tied to Toronto because there was no evidence of loss.

[19] Rather, the hybrid support order that included lump sums for cost of additional education was intended to compensate for the interruption of Kathleen’s career as a result of the marriage and the couple’s decision to move from Cambridge, U.K., to Toronto. As I stated in para. 162, these costs would have been shouldered by the couple during their marriage. The couple did not incur them because they had the child and Kathleen delayed her educational upgrade. This sacrifice on her part was a consequence of the marriage compensable by spousal support: See the references to the Supreme Court of Canada’s decisions in Bracklow v. Bracklow, [1999] 1 S.C.R. 420 in para. 139, as well as s. 15.2(6) of the Divorce Act.

[20] I would not go as far as Kathleen’s counsel has gone, to rationalize a support order intended to reopen the path for Kathleen’s career as compensation for holding her back from moving to Ireland with the parties’ daughter. The facts of this case allow Aamir to help her resume her career in the trajectory contemplated at the start of their marriage. The logical corollary of the support is disappearance of professional and economic frustration as the grounds for approval of the child relocation. The Parsons article I cited in para. 140 pointed out that the best interests of the child can and often has conflicted with women’s economic interests. This, as in most spousal support analyses, is an extension of the principle that divorce law must allocate equally and equitably the consequences of the marriage and its breakup while putting the interests of children first.

[21] Despite the caution by the authors of the SSAG that the middle range amount is not the “norm” or default and that judges too often choose it without explanation, the SSAG itself drives courts to that undefined range, if neither the needs-based rationale of the lower end nor the compensatory basis of the higher end can be justified on the facts. The lower end is clearly not appropriate here, because during the marriage there was an expectation that reliance on Aamir’s increased income and Kathleen’s sacrifice of her job in England would create a single-income family at least until Kathleen upgraded her qualifications. The higher end is also hard to justify because Kathleen’s career advancement has been set back only a few years. This compares with the spouses whose careers were effectively sidelined permanently due to a lengthy stay-at-home contribution to the family.

[22] In referring to the middle figure of $2,332 as a “monthly base” and starting point, I employed it as a middle ground from which the law would add on the shared cost of educational expenses. The compensation for Kathleen’s delay in achieving the next rung on the professional career would be measured by the educational expenses in the same way as any other person in her shoes, a foreign-trained optometrist seeking to upgrade to “doctor” status in Canada.

[23] I therefore confirm my earlier decision to award the middle range of support under the SSAG, on the basis that paying for half of the education costs will compensate Kathleen for the lost opportunity to have those expenses paid out of the family finances during the marriage.

Calculation

[24] Kathleen’s quantum calculation summarizes the financial consequences of the above two positions and also includes additional costs of upgrading her qualifications to a Canadian Doctor of Optometry and Vision Science.

[25] Kathleen’s quantum calculation seeks to add a total of $16,655.50 to the figures stated at para. 161 of my original reasons for judgment (not an additional $40,000, as submitted by Aamir). The actual conclusion I reached in para. 161 was that Aamir should be required to pay for 50% of the cost of tuition, books and materials at the time the costs are incurred. At para. 143, I had concluded that Kathleen would have received her Canadian qualification before the child was born, had Aamir not been injured in the car accident. Therefore, expenses including the fee for final board examinations could qualify as part of the support award.

[26] These expenses cannot be calculated right now, because they have not been incurred and may very well change by the time Kathleen becomes qualified. It is also possible that she may qualify for financial assistance. The problem with this evidence was that it consisted of Kathleen’s evidence, as having viewed websites. There was no evidence from the professional college or from the university, or even evidence that she met with any such persons. The only award that the court can make at this point is to apportion the percentage that Aamir is required to pay, much in the way of s. 7 childcare expenses awards.

[27] As stated in para. 157 of my original reasons, my first interest in seeking input from counsel was to verify the spousal support figures. Given that I have maintained my decision to award the middle of the range in arriving at the monthly figure of $2,332, I observe that it is lower than the middle of the range calculated by both counsel in their DivorceMate printouts. Since Kathleen’s counsel has inputted the figures that conform better with the reasons above, I will set the base monthly support figure for the purposes of para. 159 to $2,836 instead of $2,332.

[28] I believe the above, combined with the parental schedule decision, fill in the blanks that were left open in my original trial judgment of March 29, 2023. I will ask that counsel confer to calculate any arrears back to the date the application was commenced. If I have missed anything, counsel may bring them to my attention via my judicial assistant.

[29] I remain hopeful that costs will be settled. If not, counsel for Aamir may submit his bill of costs, submissions (of no longer than two pages in length, double-spaced), and any relevant offers, by September 1, 2023. Kathleen’s submissions (of no longer than four pages, double spaced) and any relevant offers shall be due September 22, 2023.

Akazaki, J. Released: August 15, 2023