N.Z.N. v. M.R.N., 2024 ONSC 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.Z.N.
Applicant
– and –
M.R.N.
Respondent
Elan Mendelsohn, Agent
Anna Towlson, for the Respondent
HEARD: January 30^th^, 31^st^, February 1^st^, 2^nd^, 3^rd^, 4^th^, 7^th^ and March 13^th^ and 14^th^, 2023
M. Kraft, J.
PARTIAL reasons for decision
Overview
1N.Z.N., age 48, and M.R.N., age 43, were married for 13 years. They have two children, a son, J, age 15, and a daughter, O, age 11. They separated on August 7, 2019. M.R.N. has a son from another marriage who is 25 years old. N.Z.N. was employed as a medical doctor by the Canadian Armed Forces (“CAF”) during the entirety of the parties’ marriage. In May 2022, he was released from the CAF on a medical leave. N.Z.N.’s pension with the CAF is currently in pay. Except for a very brief period, M.R.N. did not work outside of the home. The family moved at least 5 times to different army bases in Canada and the United States in support of N.Z.N.’s military career. The outstanding issues at trial were retroactive and prospective child and spousal support and property division.
2Prior to this 9-day trial, the parties settled their parenting issues.
Issues to be Determined at Trial
3The issues I need to determine are,
a. What is the amount of retroactive and prospective child support N.Z.N. owes M.R.N.?
b. What is the amount of retroactive and prospective spousal support (and duration) N.Z.N. owes M.R.N.? and
c. Which party owes the other an equalization payment (“EP”) and in what amount?
4Initially this matter was scheduled for a three-week trial to commence on May 23, 2022. The eve prior to that trial, the parties settled their outstanding parenting issues on a final basis, which became part of a consent final order of Steele, J.1
5This trial was then adjourned for 8 months to give N.Z.N. the opportunity to comply with previously ordered financial disclosure so his financial circumstances would be disclosed prior to trial. N.Z.N. had not filed any evidence or material before the May 2022 trial was set to start. Prior to the May 2022 trial date, N.Z.N. disclosed that he had been released from the CAF and expected his income to decline. As a result of N.Z.N.’s non-compliance with court orders, M.R.N. had brought a motion to strike N.Z.N.’s pleadings, which was also adjourned to the outset of this trial, scheduled for five-days, to commence on January 30, 2023.
6For 8 months, between May 24, 2022 and January 30, 2023 M.R.N. sought disclosure from N.Z.N.. N.Z.N. failed to make any financial disclosure until a few days before this trial. N.Z.N. filed no evidence or materials for trial, leaving M.R.N. solely responsible to file a Trial Record, assemble and upload all the previous disclosure both parties had produced and all of the exhibits to Caselines. M.R.N. did so in a balanced and fair manner.
7The trial started on January 30, 2023 as scheduled. The evidence was initially completed on February 6, 2023. On February 7, 2023, the day on which the parties were scheduled to give their oral closing submissions, N.Z.N. brought a motion to re-open the trial to allow him to adduce expert evidence about the valuation of his military pension and the reduction in his pension income once the pension is divided for support purposes. M.R.N. agreed that this evidence was important and necessary for a just determination of the issues. Neither party had obtained actuarial valuation reports of N.Z.N.’s federal pension in advance of the trial. Accordingly, I made an order, on consent, that the trial would be re-opened and resume on March 13 and 14, 2023.
8When the trial was reopened on March 13, 2023, both parties had retained actuarial experts to value N.Z.N.’s federal pension with the CAF. M.R.N. and N.Z.N. agree that her 50% share of the Family Law Value (“FLV”) of N.Z.N.’s federal pension is $770,890 for equalization purposes. This is a pre-tax value.
9After the hearing of this trial, the parties agreed to direct the CAF to transfer 50% of the Family Law Value (“FLV”) of N.Z.N.’s military pension to M.R.N.. On March 30, 2023, the parties agreed to a consent order, that with pre-judgment interest, calculated at the rate of 2% for 1322 days, the total amount of N.Z.N.’s pension to be transferred (FLV + prejudgment interest) to M.R.N. from the CAF is $826,732. This does not include post-judgment interest. Despite my consent order, dated March 30, 2023, the CAF did not actually divide the pension until 9 months later, on December 7, 2023, resulting in the significant delay of this Judgment because the equalization payment and N.Z.N.’s income for support purposes cannot be calculated until his pension was divided at source.
Transfer of Pension Delay of 9 Months
10Despite the consent order, dated March 30, 2023, the CAF did not transfer 50% of N.Z.N.’s pension to M.R.N. initially because it required the parties to state the exact percentage or amount of the pension to be divided, as the CAF will not calculate interest. Accordingly, on May 12, 2023, a further consent order was reached which specified that 50% of the FLV of N.Z.N.’s pension is to be transferred to M.R.N. in the sum of $770,890, plus pre-judgment interest calculated at the rate of 2% for 1322 days, amounting to a total figure of $826,732. The parties did not reach an agreement as to whether post-judgment interest ought to apply to the pension transfer from March 20, 2023 onward. The parties were also ordered to advise the court by way of written submissions within one week of the RRSP and pension transfer being completed and particularize the shortfall in comparison to M.R.N.’s 50% share of the FLV of N.Z.N.’s CAF pension. Submissions were also to be made as to whether post-judgment interest ought to apply to the pension transfer from March 20, 2023 onward.
11Despite the clear terms of the amended consent order, the CAF did not transfer 50% of N.Z.N.’s pension to M.R.N.. Between July and December 2023, multiple Endorsements and/or letters were released by me in connection with the transfer of N.Z.N.’s pension to M.R.N. as follows:
a. On July 10, 2023, I ordered counsel for both parties to contact the Pension Centre at the CAF to determine what the cause of the delay was and to advise what was necessary to effect the transfer of the pension to M.R.N.. They did so and the CAF was not prepared to transfer the pension.
b. On July 17, 2023, I issued a summons to require a pension specialist from the CAF to appear in court and advise as to the reason for the delay on July 25, 2023 at 9:00 a.m. No one from the CAF pension centre appeared on July 25, 2023, despite being served with the summons.
c. On July 21, 2023, the parties were told by the CAF Pension Centre that they could waive a 90-day waiting period if they both advised the CAF that they consented to do so in writing. On July 25, 2023, I ordered the parties to execute a letter to the CAF Pension Centre setting that they both consent to waive the 90-day waiting period associated with the pension transfer immediately.
d. On July 25, 2023, M.R.N.’s counsel set the court a registered letter she had received from the CAF Pension Centre, dated July 21, 2023, which confirmed that they had received her application under the Pension Benefits Division Act to receive a division of N.Z.N.’s CAF pension.
e. On August 25, 2023, the court asked for confirmation from both parties that they had each waived the 90-day challenge period and whether the pension transfer had taken place.
f. On August 28, 2023, counsel for M.R.N. advised that she had not received any correspondence from N.Z.N. outlining that he had waived the 90-day challenge period.
g. On August 29, 2023, N.Z.N.’s agent provided the court and M.R.N.’s counsel with a copy of the 90-day waiver he had sent the CAF pension centre.
h. On August 31, 2023, the agent for N.Z.N. advised the court that N.Z.N. had tried to follow up with the CAF pension centre but his calls had not been answered.
i. On September 29, 2023, the court sent correspondence to counsel asking for an update as to the pension transfer.
j. On September 29, 2023, the agent for N.Z.N. advised the court that the most recent correspondence he had received from the CAF pension centre was received on September 25, 2023, and confirmed that they could email N.Z.N. the 90-day-waiver-letter but since N.Z.N. had not received the 90-day-waiver-letter from them, as per the legislation, the 90-day period was to restart. Essentially, this meant that from July 25, 2023 to September 29, 2023, the CAF pension either did not receive N.Z.N.’s 90-day-waiver letter or what they had received from him was not in an acceptable form.
k. On October 19, 2023, the court reached out to the parties again for an update as to the pension transfer. The parties were ordered to advise the court in writing by October 23, 2023 as to the status of the 90-day waiver.
l. On October 24, 2023, N.Z.N. received an email from Sophie Mineault, at the CAF pension centre, confirming that the centre had received his waiver for the challenge period and advising that “the payment will be processed in November 2023.”
m. On November 27, 2023, the court reached out to the parties against for an update as to the pension transfer.
12On December 7, 2023, the CAF made payments to M.R.N. totalling $434,071.41, as follows:
a. The sum of $315,541.91 was paid by cheque, dated November 28, 2023 to RBC, reference number 470255563, about which M.R.N. was informed by RBC on December 5, 2023;
b. The sum of $118,529.50 was paid by cheque, dated November 28, 2023, directly to M.R.N., received by her on December 6, 2023, being the RCA benefits, after taxes were deducted at source.
13The CAF pension transfer to M.R.N. totalled $434,071.41, which is a significant shortfall from my order, dated May 12, 2023, requiring the CAF Pension Centre to pay out the total sum of $826,732 to her. Accordingly, on December 7, 2023, Ms. Towlson wrote to the CAF Pension Administrator, Yanick LeBlanc, seeking an explanation as to whether more payouts from the CAF are coming to M.R.N. to ensure that the sum of $826,732 is to be paid to her from Dr. Nugent’s pension as ordered.
14On December 15, 2023, M.R.N. received a letter from the CAF pension centre confirming that she has now received the entirety of her entitlement to a formal division of N.Z.N.’s pension entitlements under the Pension Benefits Division Act. The issue has now arisen as to why M.R.N. received a shortfall of $392,660.69 from $826,732, being what the parties and the Court understood to be her 50% share of the FLV of N.Z.N.’s pension, plus prejudgment interest was.) (the difference between $826,732 and what she received of $434,071.31 = $392,660.69).
15N.Z.N. requested an explanation from the CAF to understand the variance between what the Court and parties understood to be M.R.N.’s 50% entitlement of the FLV of his pension and what she received. Counsel for M.R.N. received correspondence from the pension centre, which was also copied to N.Z.N., explaining that the variance between what was paid to M.R.N. and 50% the FLV of N.Z.N.’s pension is attributed to the fact that N.Z.N.’s status with the CAF changed from him being an “active” member of the military as at the date of separation, to him being “medically released” in May of 2022, which significantly lowered how the CAF valued his pension at the time of the transfer to M.R.N..
16Whether or not this impacts the FLV of N.Z.N.’s pension is yet to be known. This issue clearly impacts the division of net family property and the amount of the equalization payment owing to M.R.N.. These property division issues along with the issue of N.Z.N.’s income for support purposes will be the subject matter of a further three-days of trial scheduled to take place on April 2^nd^, 3^rd^, and 4^th^, 2024.
Issues determined in these Partial Reasons for Judgment:
17Accordingly, these are my partial Reasons for Judgment on only the two issues of:
a. What amount of retroactive and prospective child support is owing by N.Z.N. to M.R.N.? and
b. What amount of retroactive spousal support is owing by N.Z.N. to M.R.N. up to and including April 30, 2022?2
18The balance of the issues referred to below will be the subject matter of the three days of trial in April 2024:
a. What amount of retroactive spousal support is owing by N.Z.N. to M.R.N. for the period May 1, 2022 to December 31, 2022?;
b. What prospective spousal support is owing by N.Z.N. from January 1, 2023 onward?; and
c. What is the equalization payment owing by N.Z.N. to M.R.N.?
Factual Background
19The parties met in 2004. M.R.N. has a son from a prior marriage, A., born November 14, 1997. He is currently 25 years old, and he was 21 years old at the time of separation.
20N.Z.N. and M.R.N. became engaged in June 2005 and began to reside together in December 2005. They were married a year later, on December 31, 2006.
21They have two children of their marriage, J., born March 14, 2008 and O., born February 8, 2012. They are aged 15 and 11 years respectively. Since separation, J. and O. have resided primarily with M.R.N. in Kitchener, Waterloo. N.Z.N. has parenting time with the children on alternate weekends and on Wednesdays.
22N.Z.N. and M.R.N. separated after 13 years of marriage on August 7, 2019, at which time N.Z.N. was charged with assaulting M.R.N. in front of the children. His bail conditions included that he could have no communication, directly or indirectly, with M.R.N., except pursuant to a family court order made after September 25, 2019, and he could not be within 100 metres of where M.R.N. lives or works.
23N.Z.N. is a highly educated man. He has a degree in Nursing from Lakehead University and a Medical Degree from McMaster University. N.Z.N. entered the military as a reservist in 1993 when he was 18 years of age. He was in the reserves for 3 years, left the military and joined again in 2001 when he was in medical school. After the military paid for N.Z.N.’s medical degree, N.Z.N. was required to complete 4 years of obligatory service. N.Z.N. completed his obligatory service from the summer of 2005 to July 2009.
24N.Z.N. was first deployed to Cold Lake, Alberta on an Air Force base. In May 2006, he was deployed to the United Arab Emirates (“UAE”), Camp Mirage, during the Afghanistan war. He returned home to Canada in October 2006. Three years later, in the summer of 2009, N.Z.N. was posted to Moosejaw, Saskatchewan. In 2010-2011, N.Z.N. was posted to Florida, where he completed a master’s degree in public health, along with a residency in Aerospace Medicine with the U.S. Navy and NASA. Beginning in the summer of 2012, N.Z.N. continued to work for the military at different postings in Trenton and Downsview. He also spent time in service in Hawaii. M.R.N. supported N.Z.N. by moving to every base where he was deployed, organizing these moves for the family and by looking after the children so N.Z.N.’s military career could advance. At the time of separation, N.Z.N. had been on sick leave from the military since the fall of 2018. He never returned to work.
25M.R.N. did not work outside of the home once J. was born in 2008. Prior to that, M.R.N. worked in various administrative positions at different companies earning between $28,000 and $36,000 annually. In 2017, M.R.N. obtained a diploma in Funeral Services from Humber College. Other than completing the one-year paid internship which was part of the program (she was paid about $36,000), M.R.N. has not worked in this field.
26Both parties struggle with their respective mental health. They both reported numerous serious mental health diagnoses and significant traumatic experiences both unrelated and related to their marriage. Both N.Z.N. and M.R.N. are under the care of mental health professionals, take medication and attend therapy regularly to address their symptoms during the marriage and since separation.
27In 2014, N.Z.N.’s sister was murdered by her partner. The trial for the murder took place over three weeks in 2018. At the time of the criminal trial, the fall of 2018, N.Z.N. went on sick leave which continued after separation. In May 2022, N.Z.N. was medically released from the Canadian Armed Forces (“CAF”).
Litigation History
28Given the high-conflict nature of this proceeding, a review of the relevant litigation history is helpful for context. The case has a history of protracted litigation because N.Z.N. continuously ignored or failed to comply with court orders for disclosure and the Family Law Rules, O. Reg. 114/9 (“FLRs”) regarding financial disclosure. Shore, J. was the case management judge assigned to this matter and, at the time of the Trial Management Conference in October 2021, none of the issues were resolved.
29On August 7, 2019, N.Z.N. was charged with assaulting M.R.N. in front of the children. A criminal trial took place and a judge found N.Z.N. guilty of the assault.
30On October 1, 2019, N.Z.N. started this litigation, seeking among other things, a divorce, an order returning the children to Etobicoke and sole custody of the children. He started legal proceedings because M.R.N. had taken the children and moved to Waterloo without his consent. At that time, N.Z.N. was on sick leave and deposed in his 35.1 Affidavit that he was available full-time to care for the children but expected to return to work full time in the near future. N.Z.N. deposed that M.R.N. had mental health issues and was not fit to parent the children. N.Z.N. did not seek an equalization of net family property.
31On October 10, 2019, N.Z.N. brought an urgent motion for the children to be returned to Toronto from Waterloo. The parties attended before Diamond, J. and the motion was adjourned on consent to October 31, 2019. Pending the return of the motion, N.Z.N. was granted temporary, supervised access to the children on a without prejudice basis through Child and Parent Plan (CAPP) in Kitchener, on dates and times convenient to the children and the parties.
32A month later, M.R.N. filed her Answer and Claim, in which she sought child support, custody of the children, spousal support, equalization of net family property and a restraining order against N.Z.N..
33In November 2019, the parties attended a case conference before Shore, J., at which they agreed to a consent order, providing that N.Z.N. have supervised access to the children on an interim, without prejudice basis on alternate weekends; N.Z.N. to pay without prejudice child support in the sum of $4,000 a month based on an annual income of $288,788 starting November 1, 2019; the parties to retain an assessor to conduct a s.30 parenting assessment; the parties consented to J. attending for therapy; and N.Z.N. was to obtain a renewal sticker for the 2011 Honda Odyssey that M.R.N. was driving and ensure the vehicle was insured, subject to him being given for credit for doing so.
34Two months later, in January 2020, a 14B motion was brought to address the appointment of a s.30 assessor because the parties were unable to agree on an assessor following the conference before Shore, J. N.Z.N. proposed using Dr. Butkowsky and M.R.N. proposed using two doctors at the London Family Court Clinic. Shore, J. ordered that Dr. Butkowsky be appointed to be the assessor and that N.Z.N. pay for the upfront costs of the assessment, to be credited for paying M.R.N.’s half-share.
35On February 20, 2020, the parties had a conference call with Shore, J. Dr. Butkowsky had declined the retainer and, as a result, the endorsement called for the parties to reach out to Dr. Ashbourne or Dr. Harris at the London Family Court Clinic, to see which of the two doctors could conduct a s.30 assessment earlier.
36On May 24, 2020, N.Z.N. was charged with failing to comply with his release order and Bail undertaking.3 During his cross-examination, N.Z.N. admitted to being charged a total of four times with breaching his bail conditions.
37On January 29, 2021, Dr. Harris, the parenting assessor completed an interim assessment report #1.
38On March 26, 2021, Dr. Harris completed an interim assessment report #2.
39On March 31, 2021, the parties attended a case conference before Shore, J., at which they agreed to a consent order providing that N.Z.N. pay M.R.N. temporary child support in the sum of $4,212 a month, based on an annual income of $327,948 starting April 1, 2021; N.Z.N. pay temporary spousal support to M.R.N. in the sum of $2,983 a month, starting April 1, 2021; the parties to follow the interim recommendations of the assessor, Dr. Harris; the parties to direct Dr. Harris to complete a final parenting plan recommendation by August 1, 2021; N.Z.N. to provide M.R.N. with income disclosure from 2018 onward; M.R.N. to provide N.Z.N. with the names of the medical professionals treating the children, copies of the children’s report cards and their attendance records, original birth certificates and citizenship paperwork; and N.Z.N. to provide M.R.N. with proof that he submitted the necessary paperwork to obtain a valuation of his pension as at the date of marriage and date of separation. Not on consent, Shore, J. made a non-depletion order against N.Z.N.’s pension and scheduled a combined Settlement Conference (SC)/Trial Management Conference (TMC) for May 26, 2021.
40It is noteworthy that by March 31, 2021, N.Z.N. had not provided M.R.N. with proper income disclosure which is why the consent order contained a clause requiring him to provide his historical income information to M.R.N. from 2018 onward.
41On July 12, 2021, N.Z.N. brought a motion seeking parenting time, as recommended by Dr. Harris; appointing a case manager as recommended by Dr. Harris; seeking virtual parenting time with J.; and to extend the deadline for the completion of the s.30 parenting assessment report. Horkins, J., found that the motion was unnecessary since Dr. Harris’ report and the Shore, J. order set out what was to be done. Horkins, J. ordered N.Z.N. to pay M.R.N.’s costs fixed in the sum of $3,000.
42On October 4, 2021, the parties attended a TMC before Shore, J., which could not proceed because the file was not ready and Dr. Harris’ s.30 assessment report was not yet completed. Accordingly, Shore, J. ordered the parties to attend a TMC before her on October 29, 2021 to complete the Trial Scheduling Endorsement Form (“TSEF”). The parties were also ordered to retain Andrea Barkley as their case manager (which was a recommendation made by Dr. Harris) and N.Z.N. was to reinstate the medical and dental insurance for M.R.N. if she had been removed from his policy. The final s.30 assessment report was never completed because fees were outstanding. Although N.Z.N. had paid $20,000 in fees to Dr. Harris, he did not pay the outstanding fees to Dr. Harris and, as a result, the s.30 assessment report ordered by the court was never completed.
43On October 29, 2021, the parties attended before Shore, J. and completed the TSEF. The 15-day trial was scheduled to commence May 23, 2022. An exit pre-trial was scheduled for May 11, 2022.
44On May 11, 2022, the parties attended an exit TMC before Sanfilippo, J. At that time M.R.N. was seeking an adjournment of the trial which was scheduled to commence on May 24, 2022 because N.Z.N. had not yet made financial disclosure as set out in the TSEF. The TSEF directed that any motions prior to the trial had to be brought before Shore, J. who had heard the initial TMC. As a result, Sanfilippo, J. adjourned M.R.N.’s motion to be heard by Shore, J.
45On May 17, 2022, Shore, J. heard M.R.N.’s motion to adjourn the trial. The parties agreed that it was not in the children’s best interests for the trial to be further delayed even though N.Z.N. had not provided the financial disclosure he had been ordered to provide. N.Z.N. had failed to provide an updated financial statement to M.R.N.. He had also failed to complete the ordered net family property statement. Further, N.Z.N. did not exchange any Requests to Admit, his opening trial statement, nor did he provide an Exhibit Brief to M.R.N.. Shore, J. ordered the trial to begin on May 24, 2022, peremptory; N.Z.N. to serve a copy of his updated sworn financial statement on M.R.N. by May 18, 2022 at 4:00 p.m.; N.Z.N. to facilitate the transfer of the Odyssey vehicle to M.R.N. prior to the trial; N.Z.N. to serve and file his opening statement by May 18, 2022 at 4:00 p.m.; the parties to discuss how to deal with N.Z.N.’s exhibits in light of his failure to serve an exhibit brief on M.R.N.; and N.Z.N. to pay M.R.N. costs of $3,500 forthwith.
46On May 20, 2022, N.Z.N. was released from the CAF due to medical reasons, at which time he began to receive his pension income.
47On May 24, 2022, this matter came before Steele, J. as the trial judge for a three-week trial. The trial was adjourned on consent, because the parties had settled the parenting issues related to their two children. M.R.N. brought a motion to strike N.Z.N.’s pleadings which was adjourned to the return of the trial. The balance of the issues were adjourned to January 30, 2023, for a five-day trial.
N.Z.N.’s Attempt to Adjourn this Trial
48Three days prior to this trial, on January 27, 2023, I scheduled a conference to discuss trial management issues with the parties, including M.R.N.’s motion to strike N.Z.N.’s pleadings, which was to be heard at the commencement of the trial and some evidentiary issues since N.Z.N. had failed to file a Trial Record, an updated, sworn financial statement, an NFP statement, or an opening trial statement. In fact, N.Z.N. had not filed a single document for the trial by January 27, 2023. N.Z.N. did not appear at this conference. The day prior, on January 26, 2023, N.Z.N.’s psychologist, Dr. Janine Cutler, sent the Trial Coordinator an email stating that N.Z.N. would not be able to attend the TMC scheduled on January 27, 2023 for “mental health reasons”. Dr. Cutler’s email also stated that it was her opinion that N.Z.N. would not be in a position to attend the trial scheduled to start on January 30, 2023.
49I was not prepared to the adjourn the trial scheduled to commence on January 30, 2023 on the basis of this email from Dr. Cutler. I released an Endorsement on January 27, 2023 requiring Dr. Cutler to attend at court (on zoom) on January 30, 2023, so she could set out additional information and answer the court’s questions regarding her diagnosis leading her to conclude that N.Z.N. would not be able to commence the trial.
50On January 30, 2023, Dr. Cutler appeared on Zoom before me and answered the questions I asked regarding N.Z.N.’s mental health. Dr. Cutler explained that she wrote the email to the court on January 26, 2023 because she was concerned about N.Z.N.’s suicidal ideation and she was uncertain that he would be able to handle the trial emotionally. Dr. Cutler also felt that N.Z.N. required counsel. N.Z.N. had had eight months since May 2023 to retain counsel on a limited scope basis or as agent to assist him with the trial. Further, N.Z.N. was well aware that he was in breach of several disclosure orders and had begun making disclosure to M.R.N.’s counsel only in the week prior to trial. As well, N.Z.N. was mentally able to write his American Board medical examinations the week prior to trial and to continue his parenting responsibilities. In light of all these facts, I ordered the trial to proceed as scheduled.
51M.R.N. brought a pre-trial motion to strike N.Z.N.’s pleadings because he had failed to provide the ordered disclosure which was to be heard at the commencement of the trial. N.Z.N. had been providing disclosure to M.R.N.’s counsel over the weekend prior to the trial and acknowledged that he had outstanding disclosure but was doing his best to provide her with the documentation he had been ordered to produce. I provided N.Z.N. with a two-hour adjournment to enable him to upload the documents M.R.N.’s counsel needed to determine his income and his bank statements. While N.Z.N. was not in compliance with various court orders, I declined to strike N.Z.N.’s pleadings so the court would have the benefit of his oral testimony as compared with proceeding with M.R.N.’s claims on an uncontested basis without the evidence it needed to determine these issues. The trial proceeded in the afternoon of January 30, 2023.
52Part way through the third day of the trial, and after N.Z.N. had completed his evidence in chief, an agent, Mr. Mendelson, appeared on behalf of N.Z.N.. Mr. Mendelson was retained on a limited basis to act as an agent and assist N.Z.N. with trial procedure and to complete the remainder of the trial.
Issue One: What is N.Z.N.’s obligation to M.R.N. retroactive and ongoing child support?
N.Z.N.’s Position on Child Support
53N.Z.N. acknowledges he has an obligation to pay ongoing child support for the two children in accordance with the Federal Child Support Guidelines, S.O.R./97-175 (“CSG”) based on his current income.
54In terms of retroactive child support, N.Z.N. submits that his line 15000 income dramatically fluctuated from 2017 to, and including, 2022. As a result, he submits that his income for child support purposes, from the date of separation to the current date, should be based on the average of his income over a three-year period, being 2017, 2018 and 2019, pursuant to s.17(1) of the CSG. Further he argues that only his military salary be considered his income for support purposes on a going forward basis, because until 2019, that was the only income he earned. In 2019, 2021 and 2022, N.Z.N. submits that several non-recurring events took place that resulted in him receiving lump sum amounts of money and these amounts should not be included in the calculation of his income for support purposes, such as accrual of back pay for unused vacation days or severance payments.
55N.Z.N. also asks that M.R.N. be imputed with an annual income of $40,000 from the date of separation onward.
M.R.N.’s Position on Child Support
56M.R.N. is seeking an order that N.Z.N. pay her child support for the two children of the marriage in accordance with the CSG from August 7, 2019 onward. She also seeks an order that N.Z.N. contribute proportionately to the children’s past and ongoing s.7 expenses.
57M.R.N. argues that she is entitled to retroactive child support. She argues that there is no reason for the court not to calculate the arrears of child support based on the income N.Z.N. earned in each year. She acknowledges that N.Z.N. paid child support after the date of separation and that he be given credit for having done so. M.R.N. submits that this is not a case where it is appropriate to use a three-year average of N.Z.N.’s income for 2017, 2018 and 2019. M.R.N.’s position is that all amounts N.Z.N. received on account of vacation day payouts or otherwise from the army is a matter of timing and should not be removed from the calculation of N.Z.N.’s income for child support purposes. M.R.N. argues that the most up-to-date and accurate income information for N.Z.N. should be used to determine child support.
58In terms of retroactive section 7 expenses, M.R.N. seeks a payment from N.Z.N. in the sum of $8,449.21. This is for J.’s therapy costs and his proportionate share of J.’s private school tuition for the partial year he attended in 2021 and for the entire year of 2022/2023, only the unsubsidized portion. In terms of ongoing s.7 expenses, M.R.N. only seeks a proportionate contribution from N.Z.N. for J.’s tuition at Rockway College on the basis that both parties acknowledge that J. has special educational needs given his ADHD diagnosis and his learning disability.
The Law
59Pursuant to s. 5.1(1) of the Divorce Act, a court has jurisdiction to make an order for child support. The CSG provide that the amount of a child support order for children under the age of majority is the amount set out in the applicable tables, according to the number of children to whom the order relates and the income of the spouse against whom the order is sought s.3(1) of the CSG.
60Section 16 of the CSG provides that a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form used by the CRA, adjusted as per Schedule III.
61Section 17 of the CSG provides that if the court is of the opinion that the determination of a spouse’s annual income under s.16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any patter of income, fluctuation in income or receipt of a non-recurring amount during those years.
62In addition to the CSG tables, the court may on either spouse’s request, order an amount to cover all of any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation,
a. childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
b. that portion of the medical and dental insurance premiums attributable to the child;
c. health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
d. extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
e. expenses for post-secondary education; and
f. extraordinary expenses for extracurricular activities.
63In determining how spouses are to share s.7 expenses for the children, s.7(2) of the CSG provides that the expense is to be shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any from the child.
64No child support analysis should ever lose sight of the fact that support is the right of the child: D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38. The purpose of and promise of child support is to protect the financial entitlements due to children by their parents: Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, at para. 38. These entitlements survive the breakdown of their parents’ marriage: D.B.S., at para. 38.
What is N.Z.N.’s Income for Child Support Purposes?
65The parties agree that N.Z.N.’s income from the date of separation to January 1, 2023 was as follows:
a. His 2019 Line 15000 income was $366,421;
b. His 2020 Line 15000 income was $327,952;
c. His 2021 Line 15000 income was $404,290; and
d. His 2022 income was $387,707.
66N.Z.N. argues that he has overpaid child support by $29,545.86 since separation, for which he is to receive credit.
67According to M.R.N., the amount that N.Z.N. has overpaid in child support was $23,370. The difference is that M.R.N. argues child support is owing for 2019, calculated as $4,670 a month x 5 months, and applies the overpayment of child support toward spousal support arrears. Further, M.R.N. calculates that child support was owing by N.Z.N. from August 1, 2019 since the date of separation was August 7, 2019 and N.Z.N. submits that child support is owing from September 1, 2019.
68I find that child support was owing as of August 1, 2019, given that the date of separation was August 7, 2019. As a result, I have found that N.Z.N. overpaid child support by way of periodic payments in the total sum of $64,027.86. The below chart sets out N.Z.N.’s annual income from 2019 to April 30, 2022, inclusive; the amount owing by him under the CSG and confirms that N.Z.N. overpaid child support in the sum of $64,027.86. It is M.R.N.’s position that this overpayment should be applied to spousal support owing by N.Z.N. in each year. I agree with this position, which is reflected in the spousal support section of the judgment below.
| Year | Income | CSG Table amount what N.Z.N. should have paid | What N.Z.N. paid in child support | Owing/Overpayment |
|---|---|---|---|---|
| 2019 | $366,421 | $23,370 $4,674 a mo. (September – Dec/2019) |
Nil | $23,370 |
| 2020 | $327,952 | $50,544 ($4,212 a mo. x 12) |
$54,504 | ($3,960) |
| 2021 | $404,290 | $61,536 ($5,128 a mo. x 12) |
$72,059.86 | ($10,523.86) |
| 2022 Jan-April |
$387,707 | $19,716 ($4,929 a mo. x 4) |
$92,630 | ($72,914) |
| TOTAL | $155,166 | $219,193.86 | ($64,027.86) |
Retroactive Section 7 Expenses
69In terms of s.7 expenses, M.R.N. seeks an order requiring N.Z.N. to pay his proportionate share of J.’s uninsured past therapy costs and the unsubsidized portion of J.’s Rockway Mennonite Collegiate (“Rockway”) tuition of $4,698 in 2021/2022 and $6,068.27 for the 2022/2023 academic year.4 N.Z.N. agrees that he is obliged to contribute to J.’s retroactive therapy costs. However, he is not agreeable to pay his proportionate share of J.’s tuition costs at Rockway for either year because he does not believe J.’s attendance at private school is a necessary and reasonable expense based on the family’s finances in accordance with the analysis under s.7 of the CSG. N.Z.N. did acknowledge in cross-examination that he did not want to displace J. mid-school year in 2021 and, accordingly, he made a contribution toward the Rockway Collegiate tuition but requested that this amount not be considered an agreement on his part that the school tuition is a legitimate s.7 expense.
70In awarding s. 7 special and extraordinary expenses, the court is required to calculate each party’s income for child support purposes, determine whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determine whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits; Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) 267, para. 23.
71The CSG define “extraordinary” as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
72When a party claims that a s.7 expense is not within the means of the parties, the court may limit or deny recovery of that amount: Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (S.C.); L.H.M.K. v. B.P.K., 2012 BCSC 435.
73The s.7 expense framework which the court undertakes is as follows:
a. Does the expense fall within the listed special or extraordinary expense?
b. Is the expense necessary in relation to the child’s best interests?
c. Is the expense reasonable in relation to the means of the spouse and those of the child and to the family’s spending pattern prior to the separation?
d. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?
74The onus is on M.R.N. to provide that the claimed expenses fall within one of the categories under s.7 of the CSG and that the expenses are necessary and reasonable, having regard to the parents’ financial circumstances: Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.).
75N.Z.N. agreed during his testimony that J. has had a psycho-educational assessment, an IEP, and an ADHD diagnosis. The form 35.1 parenting affidavits completed by both parties confirm that J. has ADHD, has had a therapist for a number of years, has an IEP in school and a diagnosed learning disability relating to his inability to scribe. O. has been diagnosed with Ehlers-Danlos Syndrome.
76There is no dispute between the parties that J.’s therapy was necessary, and the costs associated with the therapy was reasonable and in J.’s best interests. The only issue for me to determine is whether the unsubsidized portion of the Rockway tuition is a legitimate s.7 expense to which N.Z.N. ought to contribute.
77Rockway is a private school that has small classes. M.R.N. testified that J. was having difficulty because of the parties’ separation and the murder of N.Z.N.’s sister. It is not disputed. J. has an ADHD diagnosis along with a learning disability diagnosis. It is also not disputed that J. has had the benefit of an IEP in school. M.R.N. also testified that J. was having difficulty at public school. When she moved to Kitchener, she first enrolled the children at the local public school in her catchment area. Given J.’s difficulties, she began to look for a school that would be able to provide J. with special attention, where the teacher would have control of the classroom and smaller class sizes. She moved J. into Rockway in the middle of the Grade 8 year. She has been able to secure tuition subsidies for J. and she has made financial sacrifices to keep J. there. According to M.R.N., J. is thriving at Rockway.
78N.Z.N. argues that it is not necessary or reasonable for J. to go to Rockway. He testified that he was not part of the decision that J. attend that school. He did, however, acknowledge that J. has friends at the school and seems happy. N.Z.N. also confirmed that he is on Google Classroom for Rockway and he has met J.’s teachers. When asked whether or not N.Z.N. agrees that J.’s tuition at Rockway is a s.7 expense to be shared by him and M.R.N., N.Z.N. answered, “He’s not doing well and if I had more information – it it’s in his best interests, then sure”.
79The final parenting consent order is clear that the parties are to meaningfully consult on important decisions about the children, one such decision being J.’s school placement. If, however, the parties do not agree, M.R.N. has final decision-making authority. I accept that N.Z.N. was not meaningfully consulted about whether J. should attend Rockway. That does not mean, however, that his attendance at Rockway is not necessary or in J.’s best interests. Since May 24, 2020, it is agreed that N.Z.N. has had free access to information about both children. During his testimony, N.Z.N. confirmed that he has joined Google Classroom and met J.’s teachers, but he has not reached out to Rockway Collegiate to speak with the school about J.’s progress, or lack thereof, even though he has always been able to do so.
80I find that Rockway tuition is a legitimate s.7 expense. Given J.’s educational needs as well as for his social and emotional health, I find that this expense is necessary in relation to J.’s best interests. Based on the parties’ means, which consists of N.Z.N.’s income in 2021 of $404,290 and $387,707 in 2022, and the subsidies which M.R.N. has taken advantage of, the overall expense of the Rockway in 2021 amounted to 1.16% of N.Z.N.’s income and in 2022 amounted to 1.56% of N.Z.N.’s income. As a result, I find that this expense is reasonable in relation to the means of the parties and those of J.
81I am persuaded that the unsubsidized portion of Rockway tuition is reasonable and necessary in regard to the spouse’s means and is in J.’s best interests given his ADHD and learning disability diagnosis.
82To calculate N.Z.N.’s proportionate responsibility toward the children’s s.7 expenses, a determination of M.R.N.’s entitlement to spousal support must be made as her spousal support is considered income for s.7 expenses purposes and must be subtracted from N.Z.N.’s income for s.7 purposes.
Should Income be Imputed to M.R.N.?
83The courts also have discretion to impute income to payors and/or recipients. The courts have held that the principles that apply in determining whether to impute income are the same in both child support and spousal support cases.5 The CSG grant the court the discretion to impute income to a party in situations where the court is of the view that the income reported in a party’s tax returns is not an accurate reflection of what the party is or could be earning. The relevant section of the CSG is section 19. In M.R.N.’s case, N.Z.N. asks the court to rely on s.19(1)(a) which provides as follows:
Imputing income
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
84Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1.
85The question of onus with respect to imputation of income is an important one. In original proceedings, the onus is on the party requesting the court to impute income to establish the grounds for this request; Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, additional reasons 2009 ONCA 457, 65 R.F.L. 26; Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), 2002 CanLII 41868, additional reasons 167 O.A.C. 274, 2003 CanLII 48241.
86The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to s.19(1)(a) of the CSG, it is not necessary to establish bad faith or an attempt to thwart support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances: Drygala. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court is required to consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity: Drygala; Lawson v. Lawson (2006), 81 O.R. (3d) 321, 2006 CanLII 26573; West v. West (2001), 18 R.F.L. (5th) 440 (Ont. S.C.), 2001 CanLII 28216.
87It is N.Z.N.’s position that an income of minimum wage be imputed to M.R.N. for 2019 and 2020 and that an annual income of $47,500 be imputed to M.R.N. for 2021 and onwards on the following basis:
a. M.R.N. elected not to finish her undergraduate university degree, notwithstanding that she was near completion;
b. M.R.N. made her career decisions independently of her role within the family;
c. Early in the marriage, M.R.N. was able to earn about $30,000 a year. She has the following past work experience:
i. In 2003 and 2004, she was an Administrative Analyst at Go Energy Inc. and earned roughly $26,000 per annum.
ii. During this period of time, she was also a volunteer funeral director assistant at Erb & Good Family Funeral Home from May 2004-August 2004.
iii. M.R.N. was then a project manager at Supplier Pipeline Inc. in 2004 and 2005. She testified to earning less than $30,000 but did not state the specific amount.
iv. She worked as a safety administrator for Layton Brothers Construction Ltd. While having her son A. under her care full-time, M.R.N. was able to obtain employment at Layton Brothers Construction full-time. She had the role of safety administrator where she maintained the entire company’s safety certifications. She left this job after one year. Her testimony is that this job was not too stressful for her, but the commute is what led her to quit.
v. M.R.N. then quickly got a job working in the military post office.
d. She has had four years since separation to earn an income and has taken no steps to achieve self-sufficiency. Had she obtained employment at the time of separation, her ability to earn an income today would be in the range of $75,000;
e. She was gainfully employed prior to the marriage when she had 90% care of her son, A. She continued to be employed once the parties began cohabiting while also having child-care responsibilities;
f. She obtained her Funeral Director licence in 2017 and could have earned about $38,000 annually if she had taken the job offer from her placement at that time;
g. She recklessly let her funeral licence lapse in 2019 and did not pay the annual fee of $300. As a result, she needs to study to obtain a re-licence and she has only just started to do so; and
h. The children are in full time school and have been since the separation providing her with the opportunity to work full-time.
88M.R.N. argues that no income should be imputed to her. M.R.N. was not able to pursue employment during the marriage because the expectations on her, as a military wife, was that she be expected to move multiple times during the marriage to support N.Z.N.’s career within the military, requiring her to look after the household and children and making full-time employment impossible. Further, both parties testified that M.R.N. had received an offer of full-time employment after she completed her placement for the Funeral Director program in 2017 and that she did not take the position. M.R.N. testified that N.Z.N. told her he did not want her to pursue the position because the cost of the nannies they had employed to enable her to attend the program was too high and it did not make sense. N.Z.N.’s testimony essentially supported this position but testified that this was more of a joint decision on their part.
89Further, M.R.N. provided medical evidence that she was not able to work full-time after the separation and/or currently. The letter from Dr. Drandic dated October 12, 2019, Exhibit #30 at trial, sets out that given multiple and serious psychological and physical medical conditions, M.R.N. would not have been able to work and may not be able to work for some time in the future.
90Given M.R.N.’s mental health diagnoses, I am not prepared to impute her with an income for 2019 through to and including 2023. Now that the family law litigation process is completed, M.R.N. can focus her attention and energies on finding a career that is meaningful to her and at which she can earn an income. That may be in funeral directing, if M.R.N. retakes her licencing examinations or she may find employment in a different field. Commencing January 1, 2024, M.R.N. shall be imputed with an income equivalent to minimum wage or equal to what she is earning, whichever is higher. I find that it is reasonable that M.R.N. be imputed with minimum wage commencing on January 1, 2024 but not retroactively.
Issue Two: What is N.Z.N.’s obligation to M.R.N. to pay retroactive and ongoing spousal support?
N.Z.N.’s Position on Spousal Support
91N.Z.N. argues that his spousal support obligation be based on the income he earned at the time of separation, which was $366,000 in 2019, or the three-year average of his 2017, 2018 and 2019 income of $306,871. He submits that his income for spousal support should be fixed at this 3-year average with no sharing of his post-separation increases in income with M.R.N..
92In terms of spousal support duration, he submits that spousal support should be payable for half the duration of the marriage, which in total was 13 years. He argues that the duration for spousal support is in the range of 6.25-12.5 years and given that it is now 4 years post-separation, M.R.N. should receive arrears of spousal support for that period of time and should receive another 2.5 years of spousal support.
93Further, N.Z.N. argues that he is only obliged to pay spousal support in the low-end of the range of the Spousal Support Advisory Guidelines (“SSAGs”) because of M.R.N.’s failure to take any steps over the last seven years to upgrade her skills or pursue employment opportunities. He submits that given her past work experience, the fact that her childcare responsibilities are limited, the children are in school full-time and that she is only 43 years of age, the low-end range of spousal support is appropriate.
94N.Z.N. asks the court to consider the fact that he has an ongoing consumer proposal payment of $1,250 a month that has been in place since separation and that this cash-flow adjustment is another ground, in addition to M.R.N.’s failure to take any steps to upgrade her skills, for the court to award spousal support in the lower range.
95Finally, now that his pension is in pay, N.Z.N. argues that only the portion of his pension income that does not get equalized should be available for spousal support, which is 82.4% of his income since 17.6% of his pension income is attributable to the Family Law Value of the pension to be equalized. This results in a reduction of $20,654 annually from the calculation of N.Z.N.’s income for spousal support purposes, according to his pension actuary expert. As well, as of May 20, 2024 N.Z.N.’s Manulife disability income payments will cease and N.Z.N. argues that the spousal support should be automatically reviewed at that time. This issue is not being determined in these Partial Reasons for Judgment. The spousal support arrears calculation in these Partial Reasons for Judgment do not include 2022 since N.Z.N.’s pension began to be in pay to N.Z.N. as of May 2022. That issue will be addressed in April 2024 on the remaining days of trial.
M.R.N.’s Position on Spousal Support
96M.R.N. argues that she has both a strong compensatory and needs-based entitlement to spousal support. Given her significant entitlement to spousal support, M.R.N. is seeking spousal support in the high-end range of the SSAGs. When M.R.N. became married to N.Z.N., she was healthy, employable, owned a car and had modest student loans of about $12,000. At the end of this 13.5-year relationship, M.R.N. is bankrupt and she has a car with a minimal value. She has no assets and no savings. She suffered family violence at the hands of N.Z.N. and her mental health is fragile. There is no dispute that she was assaulted by N.Z.N. on the date of separation in the presence of the children. This was proven beyond a reasonable doubt at N.Z.N.’s criminal trial.
97As a military spouse, M.R.N. moved with N.Z.N. solely for his career and, in doing so, sacrificed her career opportunities and advancement to follow and support N.Z.N.’s career and support the children. Multiple moves made employment very difficult, if not impossible, for M.R.N.. On this basis, M.R.N. argues that she is entitled to be compensated for the economic disadvantages she has suffered as a result of the marriage and its breakdown.
98Prior to having children, M.R.N. worked to her potential, secured full-time employment and was earning about $30,000 a year. She then retrained in 2017 and when she obtained an offer from employment from the funeral home where she was completing a student placement, N.Z.N. did not want her to work full time because of the high cost of employing nannies.
99Her mental health suffered as a result of N.Z.N.’s treatment toward her both before and after the separation. According to M.R.N., she was physically and emotionally abused by N.Z.N. during the marriage. He withheld financial support from her, demonstrated by him closing the parties’ joint bank accounts immediately upon their temporary separation in 2013. He cancelled her extended medical and dental benefits after separation, knowing that she requires ongoing prescriptions for medicine. He withheld the paperwork she needed for the car to be transferred to her, notwithstanding that the children were residing with her primarily. He also withheld documents from her to enable her to obtain child tax benefits. M.R.N. argues that these are examples of the family violence she suffered during the marriage which contributed to her inability to become self-sufficient at the time of separation and in the past number of years.
The Law
100Entitlement to spousal support must be established before the court considers the quantum and duration of any spousal support award to be paid: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 49.
101In determining one’s entitlement to spousal support, the court is to consider the objectives of spousal support set out in s.15.2(6) of the Divorce Act:
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.
102All four objectives are to be considered, with no one objective being paramount: Moge v. Moge, [1991] 3 S.C.R. 813, at p. 852.
103Section 15.2(4) of the DA stipulated that in making a spousal support order, the court shall take into consideration the means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation. A trial judge must look at all the relevant factors in light of the objectives of spousal support to arrive at a determination that equitably alleviates the adverse consequences of the marriage breakdown: Bracklow, at para. 36.
104The jurisdiction for the court to make a final spousal support order is set out in s.15.2(2) of the DA. 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.
105Moge and Bracklow set out the following examples of compensatory support:
a. A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
i. A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
ii. A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities; and
iii. A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons.
b. A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
106When the parties met, N.Z.N. was in Medical School at McMaster University. M.R.N. was a single mother, looking after her son, A., from a previous relationship, in Kitchener. N.Z.N. then completed his residency in Family Medicine at Queen’s University. M.R.N. was working full-time for a manufacturing company in Waterloo as a project manager. M.R.N.’s salary at this time was about $30,000 a year.
107M.R.N. completed high school in 2000. She started her university studies at the University of Waterloo in a three-year Bachelor of Arts program. She did not, however, complete her University studies. In 2003 and 2004 she worked for Go Energy Inc. as an administrative analyst earning approximately $28,000 a year. Between 2004 and 2005, she worked for Supplier Pipeline Inc., as a Project Manager, earning less than $30,000 a year. Between May 2004 and August 2004, she volunteered as an assistant Funeral Director because she was interested in this career.
108In 2001, N.Z.N. entered into a contract with the CAF, such that in exchange for medical school tuition, expenses and a small salary, he would be required to work as a physician for the army for four years of obligatory services. He was posted to Cold Lake, Alberta in August 2005.
109On December 1, 2005, M.R.N. and her son, A., relocated to Cold Lake, Alberta to join N.Z.N.. M.R.N. could not go to Cold Lake until her litigation with A.’s father had completed since she required his permission to move with A. out of Ontario. She and A.’s father resolved their litigation on consent, it being understood that M.R.N. and A. would be out of Ontario temporarily and that A. would return to Ontario at the end of the four years. M.R.N. did not receive child support or spousal support from A.’s father.
110In 2006 and 2007, when the parties were in Alberta, M.R.N. was employed as a Safety Administrator for Layton Brothers Imperial Oil in Bonnyville, Alberta. Her workplace was about an hour’s drive from Cold Lake. The driving conditions in the winter were dangerous and, as a result, M.R.N. quit this position and obtained a three-month contract position in the post-office on the military base in Cold Lake in 2007. In 2007, she became pregnant and had a miscarriage at 15 weeks gestation.
111In early May 2007, N.Z.N. was deployed to Camp Mirage in Dubai during the Afghanistan war. M.R.N. remained in Cold Lake, Alberta with A. on the army base when N.Z.N. was overseas. Prior to N.Z.N.’s deployment in the Middle East, he appointed M.R.N. as his power of attorney so she could look after his finances while he was away. It is agreed that M.R.N. knew of and managed N.Z.N.’s lines of credit at this time.
112In or around September 2006, M.R.N. fell downstairs and broke her tailbone. Although she lived with pain, M.R.N. was able to continue to work and look after A.
113N.Z.N. returned from Dubai on October 30, 2007. According to M.R.N., N.Z.N. was struggling emotionally in Dubai working in mortuary affairs. M.R.N. testified that N.Z.N. asked her to approach the people in command and complain about her own mental health so N.Z.N. could return earlier supposedly to help her. After returning from Afghanistan, N.Z.N. was diagnosed with PTSD and taking medication to address his mental health symptoms. N.Z.N. disputes M.R.N.’s version of events. He argues that he came home early from Dubai because M.R.N. was struggling with her own mental health and she had broken her tailbone and needed his assistance. N.Z.N. submits that he lost out on receiving a special medal by returning home early for M.R.N..
114N.Z.N. completed his obligatory service to the military in 2009. According to M.R.N., he then unliterally committed to four more years of service while the military paid for him to obtain a specialty in Aerospace Medicine with the United States Navy. M.R.N. testified that she was not on board with this plan. Initially, N.Z.N. was going to start the Aerospace Medicine program in July 2009 but this was delayed for a year because he had been taking medication for his PTSD and he could not pass the screening clearance or be deemed fit for the US Navy. N.Z.N. argues that his program was delayed because the army had to decide whether they wanted to invest in his future.
115In August 2009, the family moved to Moose Jaw since N.Z.N. was unable to start the Aerospace medicine program. They lived in Moose Jaw for ten months, one month of which was in a trailer. According to M.R.N., N.Z.N. titrated off his mediation so that he could begin the Aerospace Medicine program. When the parties were living in Moose Jaw, M.R.N. found pictures of a naked woman that had been sent to N.Z.N.. M.R.N. questioned N.Z.N. as to whether he was in a relationship with this woman and he denied the relationship, telling M.R.N. she was crazy.
116From January 2010 to June 2011, N.Z.N. pursued a master’s degree in public health, which was completed online. In August 2010, the family moved to Pensacola, Florida so N.Z.N. could complete the Aerospace program with the United States Navy.
117From September 2011 to July 2012, N.Z.N. pursued a residency in Aerospace Medicine and Preventative/Occupational Medicine with the U.S. Navy and NASA. During this time, M.R.N. testified that N.Z.N. was out of the home on assignment about 60% of the time.
118In August 2012, the family relocated to Belleville, Ontario when N.Z.N. was transferred to the army base in Trenton, Ontario. N.Z.N. was posted to Trenton as the wing surgeon and the parties decided to build their dream home in Belleville which was about 20 minutes from the base. M.R.N. testified that she took on the project of building their home in Trenton, while looking after A., who was a teenager, J., who was 4 years old, and O., who was less than 6 months old. M.R.N. deposed that she packed everything up and prepared the family for the move on her own, which included completing the paperwork needed for the family to relocate. It was clear from M.R.N.’s testimony that this was a challenging time for her from a parenting perspective.
119When they were in Belleville, M.R.N. discovered that N.Z.N. was in communication with the woman who had sent him naked pictures she had found when they were in Moosejaw. This discovery was very difficult on M.R.N.. The parties began marriage counselling and were engaged in that counselling for a year. M.R.N. testified that she disclosed family violence to the marriage counsellor. No violence was reported to the police. M.R.N. described a physical altercation between her and N.Z.N. in 2013, where she was thrown across a room and hit her head on a desk. M.R.N. testified that after this incident, the parties separated in the summer of 2013 and N.Z.N. stayed at the military hotel quite a bit. N.Z.N. admitted that at that time, N.Z.N. closed the parties’ joint bank account and M.R.N. consulted with legal aid counsel. Ultimately, the parties decided to go to weekly marriage counselling and work on their marriage.
120During his testimony, N.Z.N. admitted that he denied the affair to M.R.N. when she asked him, lied about it and then admitted to being involved with another woman. He also testified that he continued the affair while the parties were in marriage counselling. N.Z.N. also acknowledged that M.R.N. was devastated when she learned that he had been carrying on the affair during marriage counselling.
121In or around the spring/summer of 2014, N.Z.N. was on a military exercise in Hawaii as the task force surgeon for an International Navy exercise for six weeks. At this time, M.R.N. was under the care of a psychiatrist who wanted to change her medications and titrate her off her anti-depressants. M.R.N. testified that she and N.Z.N. were at an appointment with her psychiatrist, and they were both told about the impact it would have on M.R.N. to go off her medications and that she would be particularly vulnerable as she was slowly titrating off her anti-depressants. M.R.N. later discovered that her psychiatrist took her off her anti-depressant medications on the basis that the doctor believed she had bi-polar disorder, which the doctor did not disclose to M.R.N.. It was during this time that M.R.N. went to visit N.Z.N. in Hawaii. When she returned to Belleville, after having visited N.Z.N. in Hawaii, M.R.N. discovered social media posts from the woman with whom N.Z.N. was having the affair depicting the same backgrounds in her pictures that were in M.R.N.’s pictures in Hawaii. Upon learning of the resumption of the affair, M.R.N. was very distressed. She attributes this event being the precursor to her admission into the psychiatric ward at the hospital in September 2014.
122During her stay at the hospital, M.R.N. learned that the bi-polar disorder was not a correct diagnosis and she should not have been taken off her anti-depressant medications. M.R.N. was placed back on anti-depressants. M.R.N. testified that she felt N.Z.N. was influencing her care in a negative manner while she was at the hospital because the doctors there gave significant weight to N.Z.N.’s opinion since he was a physician. From her perspective, M.R.N. testified that she ended up being placed on far more medications than she felt she needed to be, including doubling her anti-depressant dose; she was a on small dose of an antipsychotic and two new medications were introduced. M.R.N. submitted that her care team at the hospital were listening to things N.Z.N. was communicating to them about his experiences as her partner that she believed were inaccurate. Ultimately, M.R.N. stabilized and was released from the hospital.
123One month later, in October 2014, N.Z.N.’s sister was murdered by her partner. Both parties testified that this was a devastating time for the family. N.Z.N. asked to change his posting.
124In August 2016, the family moved to Etobicoke because N.Z.N. had been transferred to work on the base in Downsview. Again, M.R.N. took on the role of managing the family’s relocation, packing their belongings, settling the family into their new home, joining the parent’s association board at the children’s new school, and making social connections for the family in their new community. At this time, in 2016, M.R.N. enrolled in funeral services education at Humber college. She testified that she was very eager to start a career and had been interested in this for quite some time. While M.R.N. was in school, the parties hired nannies who were living in the home and assisting with house care, childcare and meal preparation.
125In June 2017, M.R.N. graduated with a diploma in Funeral Services Education from Humber College in Etobicoke. M.R.N. testified that this diploma qualified her to embalm bodies, engage in the legal arrangements regarding a funeral, and to take directions from the Executor of the estate of the deceased. As part of that program, she worked at a paid internship from September 2017 to June 2018. Her first placement was at Cardinal Funeral Home and this placement ended early because she had an incident with a customer. M.R.N. testified that she then started a new placement at Eco Commercial Funeral home, which also ended because the workplace was not safe. In the winter of 2017, M.R.N. began a placement at Ogden Funeral home and she was paid at the rate of $36,000 for the time she was there. M.R.N. testified that she was offered a full-time position from Ogden Funeral Home, but N.Z.N. did not want her to accept this position because the family had spent too much money on nannies and it was not worth it. M.R.N. described being devastated by not being able to pursue this position.
126Other than for that one academic year (2016-2017), M.R.N. has not worked outside of the home since J. was born.
127It is not disputed that N.Z.N. did not pay for M.R.N.’s tuition at Humber College. M.R.N. asked her father to pay the tuition over the three semesters of the program. M.R.N. produced evidence at trial confirming that her father paid for Humber College tuition.
128In June 2018, the murder trial relating to N.Z.N.’s sister’s murder took place. Both parties testified about the three-week trial being very difficult for the family. M.R.N. testified that N.Z.N. was not doing well from a mental health perspective; N.Z.N. had disclosed wanting to get revenge and kill the murderer, that she found plans he had to do so, and she was aware that N.Z.N. brought a knife into the courthouse surreptitiously. No harm came to the murderer.
129Following the murder trial, N.Z.N. went on a medical leave and did not return to work.
130M.R.N. testified that this was a difficult time for the family because both she and N.Z.N. were not functioning well from a mental health perspective. She recalled the CAS being called about the parties’ failure to follow up with special education resources the school had asked the parents to look into for J.
131In January 2019, M.R.N. was readmitted to the hospital because her mental health had deteriorated. For three months, M.R.N. returned to the hospital for one week in each of January, February and March 2019, during which she received Electric Convulsive Therapy (“ECT”). During this time, M.R.N.’s mother came to stay with the parties and help with child care.
132In February, 2019, N.Z.N. went into consumer proposal for his significant debt. M.R.N. testified that N.Z.N.’s debt at this time was $237,355. The proposal that was accepted was for N.Z.N. to pay $75,000, at the rate of $1,252 a month, which began in April 2019 and continues until the sum of $75,000 is paid.
133While on a day pass from the hospital, N.Z.N. brought M.R.N. to sign papers and on March 12, 2019, she filed for bankruptcy. M.R.N. testified that she had student loans from her university studies that were $12,000 and that her debt had ballooned to $24,000. Her total debt at the time she declared bankruptcy was $39,231. M.R.N. submitted that it was not in her best interests to have declared bankruptcy but she followed N.Z.N.’s advice in this regard.
134The parties separated on August 6, 2019 when N.Z.N. was charged with assault. After this incident, M.R.N. and the children moved to Waterloo for six months to live with her father, so she could have the support of her family.
135M.R.N. has been in the care of a psychiatrist, Dr. Drandic since July 17, 2019. She has been diagnosed with Persistent Depressive Disorder, Major Depressive Disorder (“MDD”), recurrent in partial remission, ADHD and Generalized Anxiety Disorder. In the years prior to separation, M.R.N. had three psychiatric hospitalizations to address obsessional thoughts which were intrusive and distressing. While in the hospital, M.R.N. received ECT and responded well. She is on a regiment of medications, is reported to be fully cooperative with her treatment plan and compliant with her medical recommendations.6
136N.Z.N. did not take issue with M.R.N.’s entitlement to spousal support. However, given the facts of this case, it is important for the court to set out the basis of M.R.N.’s entitlement. I find that M.R.N. has both a compensatory and needs based claim for spousal support for the following reasons:
a. M.R.N. did not take steps to advance in her career path because N.Z.N.’s military career took precedence over M.R.N.’s needs and those of the children. The roles and expectations of M.R.N. in this marriage was that the family centred and revolved around N.Z.N. and his career;
b. As a military spouse, M.R.N. moved at least 5 times during the marriage, to promote N.Z.N.’s education and positions within the CAF. As a result of these moves, M.R.N.’s ability to be employed was limited, and then she was unable to work because she was looking after her son A., dealing with N.Z.N.’s finances and organizing the household. Once J. was born, M.R.N. did not work outside of the home. She organized the family’s moves, settling the family in to their new communities, and then O. was born.
c. If and when M.R.N. could secure employment, she did so. For example, M.R.N. enrolled in a funeral director program in 2017 when she was able to do so. The evidence was that M.R.N. was offered a full time job by the funeral home where she completed her placement but N.Z.N. was not supportive of her taking on a full time job because of the high costs being incurred by the family to employ nannies. The evidence on record confirms that even though N.Z.N. was earning significant income when M.R.N. was pursuing this diploma, N.Z.N. was not prepared to contribute to the cost of M.R.N.’s education and, instead, M.R.N. had to ask her father to pay her tuition. N.Z.N. demonstrated that he was not prepared to financially support M.R.N. in her attempt to further her education or career path.
d. During the marriage, M.R.N. took on the role of maintaining the household, dealing with the family’s finances and banking, completing all of the moving paperwork for each move and looking after the children.
e. During the marriage, N.Z.N.’s education and career were enhanced while M.R.N.’s career and education were sacrificed to promote N.Z.N.’s advancement. At the beginning of the marriage, the most M.R.N. was able to earn was $30,000 and toward the end of the marriage, she could have earned about $36,000 a year, but was told not to pursue that position.
f. M.R.N.’s mental health suffered as a result of N.Z.N.’s treatment of her during the marriage. Her discovery of N.Z.N. engaging in two extra-marital affairs and lying to her about it when confronted by her was devastating to her. N.Z.N. admitted that he was still engaged in an affair when the parties were involved in marriage counselling. M.R.N. ended up being hospitalized because of a mis-diagnosis and she testified that N.Z.N.’s controlling behaviours impacted her care. M.R.N. testified that she was harmed by N.Z.N. physically and emotionally which impacted her employability.
g. At the time of separation, M.R.N. was not earning an income. She was forced to rely on social assistance. The evidence is clear that N.Z.N. was earning a significant level of income in and around the time of separation and post-separation and yet he failed to pay voluntary child support when he had legal counsel. This caused M.R.N. significant distress and caused her to borrow money from third parties to meet her and the children’s needs.
h. M.R.N. took less than 50% of the balance in the parties’ joint bank account at the date of separation. N.Z.N. did not pay spousal support until he was ordered to do so in 2021. Even after he entered into a consent order to pay spousal support, he did not pay the spousal support he had agreed to pay despite the amount of support being far lower than it should have been. The ramifications to M.R.N. of N.Z.N.’s conduct were significant. M.R.N. lost her social assistance when the 2021 spousal support order was made. When N.Z.N. failed to pay the spousal support in accordance with the order, M.R.N. was left in a situation where she did not know when or if she would receive funds. M.R.N. lost the predictability of social assistance and lost her access to legal aid. N.Z.N.’s conduct toward M.R.N. with respect to the spousal support was deliberate. His choices caused M.R.N. uncertainty and distress, leaving her in state of financial flux.
i. N.Z.N. refused to give M.R.N. the family car even though the children were in her primary care. At one point after separation, N.Z.N. cut off M.R.N.’s medical and dental benefits, which ultimately was rectified. He did so, knowing she was reliant on regular medical prescriptions. N.Z.N.’s conduct post-separation caused M.R.N. to be completely reliant on her family and third parties.
j. In N.Z.N.’s 2021 income tax return he claimed that he paid deductible spousal support in the sum of $35,961 and he received a refund of $19,000 as a result. However, as per M.R.N.’s calculations, he only paid $10,523.86 in spousal support because the payments he made were attributed toward child support, as per the practice of the Family Responsibility Office. In 2021, M.R.N. claimed that she received $20,000 of spousal support, allocating the exact amount she thought she had received in spousal support. To her detriment, she reported that she received more spousal support and had more income than was actually paid by N.Z.N..
k. M.R.N. left this marriage bankrupt with no assets. She is entirely dependent on N.Z.N. for financial support. Based on the facts of this case, M.R.N.’s compensatory entitlement to spousal support is strong
137The main dispute between the parties is the quantum and duration of spousal support.
138The SSAG formulas generate suggested ranges for both quantum and duration of spousal support. The ranges allow for accommodations for the specific circumstances of each case, taking into consideration the support factors and objectives set out in the applicable legislation (SSAGS, p.8a-3). The SSAG and the case-law that has considered the guidelines outline factors which the court may wish to consider in deciding the appropriate quantum and duration of support within the ranges. These include the following:
a. The strength of any compensatory claim for support. A strong compensatory claim may be a factor that favours a spousal support award at the higher end of the ranges both in terms of quantum and duration. By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration; Bracklow; Midgley v. Midgley, 2001 CarswellBC 2009 (C.A.).
b. The recipient’s needs. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges.
c. The age, number, needs and standard of living of the children.
d. The payor spouse’s needs and ability to pay.
e. The need to preserve work incentives for the payor.
f. Property division and debts. An absence of property to divide may render an award in the higher range appropriate. On the other hand, a significant property award to the recipient may cause the judge to determine that an award in the lower range is appropriate.
g. Self-sufficiency incentives in relation to the recipient spouse; Thompson v. Thompson, 2013 ONSC 5500, at para 61.
139N.Z.N. believes that the duration of his obligation to pay spousal support should be half the length of the parties’ marriage, namely for 6.5 years. In terms of quantum, N.Z.N. wants his income for spousal support to be fixed at the three-year average of his income for 2017, 2018 and 2019 (at the time of separation) at $306,871. Alternatively, N.Z.N. argues that his income for spousal support purposes should be his 2019 income when the parties’ separation which is $366,420.97. Further, N.Z.N. seeks an order that income be imputed to M.R.N. in the sum of $40,000 a year for purposes of calculating M.R.N.’s spousal support entitlement.
140M.R.N. submits that N.Z.N.’s income for spousal support purposes should be based on his known income in each of 2019, 2020, 2021, and 2022, since the court now has that income information available to it and there is no reason to depart from that analysis, as is the case with child support. M.R.N. position is that no income should be imputed to her and to do so, would be inappropriate in the specific circumstances of this case. M.R.N. seeks spousal support in accordance with the mid-range of the SSAGs from the date of separation to the trial and she seeks the high-range of the SSAGs going forward. She argues this is not a case where spousal support should be terminated or time limited. She submitted medical evidence from her family physical and psychiatrist confirming her mental health diagnoses, treatment plans, her compliance with medication and her prognosis. The opinion of her medical doctors is that M.R.N. has been unable to work since separation but that she may be able to work in the future if the stressors in her life are reduced.
Post-Separation Increases in Income
141Where a payor experiences a post-separation income increase, there is no question that the child support shares fully in any increased income under the CSG. The same, however, cannot be said for spousal support, given the threshold entitlement question of whether the recipient spouse should share none, some or all of the payor’s income in income. A court can find that child support should increase, but not spousal support under the SSAGs: Sarophim v. Sarophim, 2010 BCSC 216.
142In s.14.3 of the SSAGs, it states:
Some rough notion of causation is applied to post-separation income increases for the payor, in determining whether the income increase should be reflected in increased spousal support and, if it should, by how much. It all depends on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the subsequent income increase, and the reason for the income increase (new job vs. promotion with same employer, or career continuation vs. new venture).
143In this case, N.Z.N.’s income at the time of separation, August 1, 2019, was $366,420.97. In 2020, his income decreased to $327,952.40; in 2021, his income increased to $404,290; and in 2022, his income decreased to $387,707. The first court order for child support was made in November 2019 for child support only. The next court order for support was made in March 24, 2021, to commence April 1, 2021, using an income of $327,948 for N.Z.N., which essentially was his 2020 income.
144N.Z.N.’s position that only his income at the time of separation (2019) or a three-year average of his income, being the three years prior to the date of separation, be used for spousal support purposes raises difficult questions regarding the relevant timing for income determination in spousal support cases, and the circumstances in which a recipient spouse should be permitted to reap the benefits of the payor’s post- separation income increases.
145In the 2003 decision of Marinangeli v. Marinangeli(2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), where the facts indicate that the Respondent wife had a compensatory spousal support claim, the court made the following comments, at para. 74, about respecting need and ability to pay:
In determining need, the court is to be guided by the principle that the spouse receiving support is entitled to receive the support that would allow her to maintain the standard of living to which she was accustomed at the time cohabitation ceased. In addition, there is jurisprudence to the effect that a spouse is entitled to an increase in the standard of living such as would have occurred in normal course of cohabitation. See MacDougall v. MacDougall (1973), 1973 CanLII 1940 (ON SC), 11 R.F.L. 266, 1973 CarswellOnt 130 (Ont. S.C.) per Henry, J. See also Linton v. Linton (1990) 1990 CanLII 2597 (ON CA), 1 O.R. 3d 1 (Ont. C.A.). At the same time the court must guard against redistributing the payor’s capital in the guise of support.
146By contrast, in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, where the Court of Appeal was dealing with a non-compensatory support claim, Lang, J.A. did not consider the payor spouse’s post-separation income in determining the spousal support claim. Rather, she averaged out the spouses’ respective incomes during the three years prior to separation and in the year of separation. These two cases provide the backdrop against which the court is to analyze the issue of post-separation increases in a payor’s income, and they suggest that a fundamental consideration in determining how to treat such increases is whether the spousal support claim is based on compensatory or non-compensatory grounds.
147How the Court deals with a payor’s post-separation increase in income in a spousal support case is discretionary. The factors the court is to consider in determining whether to use post-separation increases in income for spousal support purposes, was set out by Chappel, J. in Thompson, and include the following:
a. The authors of the SSAGs and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:
b. A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases; Dextrase v. Dextrase, 2004 BCSC 215, [2004] B.C.J. NO. 266 (S.C.); Hariram v. Hariram, 2001 CanLII 32749 (ON SCDC), 2001 CarswellOnt 732 (Div. Ct.).
c. The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship; A.A.M. v. R.P.K. 2010 ONSC 930, [2010] O.J. No. 807 (S.C.), where Pazaratz, J. cited Phillip Epstein on this issue from his annotation on Fisher v. Fisher.
d. Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income; A.A.M. v. R.P.K., Ibid.; Keast v. Keast, 1986 CanLII 6323 (ON SC), 1986 CarswellOnt 257 (Dist. Ct.); Ferguson v. Ferguson, 2008 CarswellOnt 1676 (S.C.); Fletcher v. Fletcher, 2003 ABQB 890 (Q.B.).
e. The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case; Marinangeli v. Marinangeli, Supra.; A.A.M. v. R.P.K., Supra., Judd v. Judd, 2010 CarswellBC 246 (S.C.).
f. A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant; Hartshorne v. Hartshorne, 2009 BCSC 698, 2009 70 R.F.L. (6^th^) 106 (B.C.S.C.), rev’d in part 2010 CarswellBC 1618 (C.A.); Farnum v. Farnum, 2010 CarswellOnt 6917 (O.C.J.). When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
g. In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career: Hartshorne v. Hartshorne, Ibid.; Sawchuk v. Sawchuk, 2010 CarswellAlta 32 (Q.B.), Judd v. Judd, Ibid.
h. If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases; Judd v. Judd, Supra.
i. By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period; Judd v. Judd, Supra.
j. Assuming primary responsibility for childcare and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases; Sawchuk v. Sawchuk, Supra.
k. Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase; Hartshorne v. Hartshorne, Supra.; Chalifoux v. Chalifoux, 2006 ABQB 535, rev’d on other grounds 2008 ABCA 70 (C.A.); C. (D.B.) v. W. (R.M.), 2006 CarswellAlta 1723 (Q.B.); Kelly v. Kelly, 2007 BCSC 227 (S.C.); Rozen v. Rozen, 2003 BCSC 973 (S.C.).
l. Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult; Hartshorne v. Hartshorne, Supra.; Fletcher v. Fletcher, 2003 ABQB 890 (Q. B.); Robinson v. Robinson, 1993 CarswellOnt 349 (C.A.).
m. The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post–separation income increases; Bryant v. Gordon, 2007 BCSC 946 (S.C.).
n. Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases; Bryant v. Gordon, Ibid.; Kelly v. Kelly, Supra.; Walsh v. Walsh (2006), 2006 CanLII 20857 (ON SC), 29 R.F.L. (6^th^) 164 (Ont. S.C.J.).
148Given that I have found M.R.N. has a strong compensatory claim for spousal support, I am persuaded that she should be entitled to share in the increase in N.Z.N.’s income post-separation. I find this because N.Z.N. did not change the focus of his career in any way after the separation than was the case prior to the separation. M.R.N.’s contribution toward N.Z.N.’s education and career advancement during the marriage is linked to N.Z.N.’s post-separation success. Further, the increases N.Z.N. received after separation had to do with payouts of amounts relating to a time during the marriage, such as the payout of vacation days and VAC disability payments related to the re-evaluation of his back pain. Given the roles played by and the expectations placed on M.R.N. during the marriage, which included significant sacrifices and contributions for the sake of N.Z.N. and the family, which resulted in benefits to N.Z.N., and the total integration of the parties’ finances, I find that there is no question that M.R.N. should receive the benefit of N.Z.N.’s post-separation increases. This is particularly the case since N.Z.N. went on sick leave in 2018, prior to separation, and did not return to work again. His income did not steadily increase post-separation because of new duties he preformed or a change in his responsibilities. Rather, he experienced a decline in his income 2020, an increase in his income in 2021 and then a decline in his income in 2022. It is clear on the evidence that these changes in N.Z.N.’s income had nothing to do with N.Z.N.’s performance or role in his job since he has been on continuous sick leave until he was medically released.
149Accordingly, in calculating N.Z.N.’s income for spousal support, the court will use the actual income he earned in each calendar year from the date of separation to April 30, 2022.
Quantum and Duration of Spousal Support
150The issue of spousal support is inextricably linked with the amount of child support payable by the payor spouse, as child support liability has an impact on the payor’s ability to pay spousal support. As a starting point for my determination of the issues of quantum and duration of spousal support, I have determined the ranges generated by SSAGs for the years 2019 to 2021. I used N.Z.N.’s reported income in each of 2019, 2020 and 2021 for the purposes of these calculations. Again, the 2022 and 2023 calculations have not yet been calculation due to the pension issue which remains unresolved. I then considered the overall condition, means, needs and other circumstances of each party to determine the appropriate level of support within the ranges and duration of support. I turn first to the results of the SSAG calculations.
151I turn to the SSAG ranges of spousal support in each calendar year from the date of separation to December 31, 2022:
a. For 2019, the mid-range is $9,350 a month and the high-range of the SSAGs is $10,364 a month based on N.Z.N.’s annual income of $366,420.97, and M.R.N.’s social assistance income of $6,487.
b. For 2020, the mid-range is $8,407 a month and the high-range of the SSAGs is $9,329 a month, based on N.Z.N.’s annual income of $327,952 and M.R.N.’s social assistance income of $13,992.
c. For 2021, the mid-range is $10,218 a month and the high-range of the SSAGs is $11,356 a month, based on N.Z.N.’s annual income of $404,290 and M.R.N.’s social assistance income of $7,125.
152In light of M.R.N.’s strong compensatory claim, I find that the mid-point between the mid-range and high-range of the SSAGs is appropriate for the period from the date of separation onward.
Income Tax Considerations
153With respect to quantification of retroactive spousal support, the ranges generated by the SSAGs must be adjusted because those ranges are based upon periodic ongoing payments which are presumed to be taxable in the hands of the recipient and tax deductible by the payor. A retroactive award must be “netted down” to account for its non-taxable status in the recipient’s hands, and its non-tax deductible status in the payor’s hands.7
154Toward that end, I prepared the support calculations using the Divorcemate software to calculate these figures for each calendar year using the mid-point between the mid-range and the high-range of the SSAGs.
155M.R.N. argues that an after-tax amount close to or at her after tax benefit be applied: Patton-Casse v. Casse, 2011 ONSC 6182, 8 R.F.L. (7th) 39. This is particularly because
a. N.Z.N. did not pay voluntary spousal support after separation when he had a clear obligation to do so, causing M.R.N. extreme financial distress;
b. N.Z.N. did not pay spousal support even after he agreed to do so on consent and the quantum of spousal support he agreed to was far below his obligations under the SSAGs.
c. In his 2021 income tax return, N.Z.N. claims to have paid tax deductible spousal support in the sum of $35,796 and, as a result, he received a refund of $19,381 that year. In 2021, however, the total amount of spousal support paid by N.Z.N. in 2021 was $10,523.86. In 2021, M.R.N. reported in her income tax return that she received spousal support of $20,557, because she did not apply N.Z.N.’s overpayment in child support to spousal support. This filing on M.R.N.’s part was to her detriment and N.Z.N.’s advantage.
156I find that the income tax considerations should be based on the after-tax benefit M.R.N. would have received in each calendar year at her tax rate.
Retroactive Spousal Support Findings
157I have calculated the after-tax amount N.Z.N. owes M.R.N. in retroactive spousal support in the below chart. M.R.N. argues that any overpayment N.Z.N. made in child support as reflected in the chart at para. 68 above should be applied to his spousal support obligations in each year of overpayment. I agree that it is appropriate to apply the overpayment of child support toward the spousal support arrears:
| Year | N.Z.N.’s Income | Mid-point between mid-range (MR) and high-ranges (HR) of SSAGs | What N.Z.N. paid in spousal support | Overpayment of child support to be credited toward N.Z.N.’s ss obligation | Support Owing | After-tax cost/after-tax benefit/ midpoint |
|---|---|---|---|---|---|---|
| 2019 | $366,420.97 | $49,295 $9,857 a month x 5 mo. Aug-Dec/19 *$9,350 MR - $10,364 HR |
Nil | Nil | $49,285 | $22,970 N’s after tax cost $36,625 M’s after-tax benefit $29,797.50 mid-point |
| 2020 | $327,952.40 | $106,416 $8,868 x 12 mo. *$8,407 MR - $9,329 HR |
$12,416 in spousal support + overpayment of child support in 2020 of $3,960 |
($3,960) | $106,416 - $12,416 (what he paid in ss – $3,960 (his overpayment in cs = $90,040 | $50,902 N’s after-tax cost $81,879 M’s after-tax benefit $66,390.50 midpoint |
| 2021 | $404,290.00 | $129,444 $10,787 x 12 mo. *$10,218 MR - $11,356 HR |
$23,552.20 | (10,523.86) | $127,620 - $23,552.20 (what he paid in ss) - $10,523.86 (his overpayment in cs= $95,397.94 | $60,309 N’s after-tax cost $97,284 M’s after-tax benefit $78,796.50 midpoint |
| Total amount of spousal support owing by N.Z.N. after given him credit for what he paid in spousal support and applying his overpayment in child support toward spousal support $234,722.94 |
$215,788 Using M.R.N.’s after-tax benefit |
158Accordingly, up to December 31, 2021, N.Z.N. owes M.R.N. retroactive spousal support in the fixed sum of $215,788, which is an after-tax, net figure.
Disposition and Order
159This court makes the following order:
a. Pursuant to s.15.1(1) and (3) of the Divorce Act, the applicant shall pay the respondent section 7 expense arrears in the fixed sum of $8,449.00;
b. Pursuant to s.15.2(1) and (3) of the Divorce Act, the applicant shall pay the respondent spousal support arrears fixed in the sum of $215,788 for the period from the date of separation to and including December 31, 2021.
c. Pursuant to s.15.1(1) of the Divorce Act, commencing January 1, 2023, and on the first day of each following month on a temporary basis, the applicant shall pay the respondent child support for the children, J., born March 13, 2008 and O., born February 8, 2012, in the sum of $4,220, based on his estimated income of $328,584.
d. Until further order of the court, the order of Shore, J., dated March 31, 2021, shall remain in full force and effect in terms of the quantum of temporary spousal support being paid by the Applicant to the Respondent, namely, in the sum of $2,983 a month.
e. Both parties shall immediately notify the other in writing upon any change to their employment status, income, benefits or financial circumstances and shall provide written particulars of the change within 14 days of the change occurring.
f. Pursuant to s.19 of the Federal Child Support Guidelines, commencing January 1, 2024, the respondent shall be imputed with an income equal to the minimum wage in Ontario, or the income she is earning, whichever amount is higher for child support purposes and her proportionate contribution toward the children’s s.7 expenses.
g. Pursuant to section 40.1 of the Garnishment Attachment and Pension Diversion Act up to 100% of the Applicant’s Canadian Forces Pension shall be garnished to pay his support arrears until paid in full.
h. For so long as the Applicant, N.Z.N., owes support arrears to the Respondent, M.R.N., his entire income tax refund from Canada Revenue Agency shall be forthwith upon receipt transferred to M.R.N. until all arrears are paid in full. M.R.N. Nugent shall complete and submit a Statement of Arrears to the FRO indicating tax refund amounts received each time the same are received.
i. Pursuant to s.25(1) and (3) of the Federal Child Support Guidelines, the Applicant, N.Z.N., shall file his income tax returns on time each year, i.e., on or before April 30 of each year.
j. Pursuant to s.21(1) and s.25(1) of the Federal Child Support Guidelines, the Applicant, N.Z.N., and the Respondent, M.R.N., shall exchange full and complete copies of their income tax returns with all schedules and attachments filed with Canada Revenue Agency by May 15 each year. In addition, both shall provide to the other full and complete copies of any Notices of Assessment and Notices of Reassessment received from Canada Revenue Agency forthwith upon receipt.
k. Beginning on May 15^th^, 2023 and on every May 15^th^ thereafter for as long as child support is payable for the children, the parties shall provide each with up-to-date income disclosure as required by s. 25(1) and (3) of the Federal Child Support Guidelines.
l. Unless this order is withdrawn from the Director’s Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director who shall pay them to the person to whom they are owed.
m. This order bears post-judgment interest at the rate of 6% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
M. Kraft, J.
Released: January 3, 2024
COURT FILE NO.: FS-19-00012872-0000
DATE: 20240103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.Z.N.
Applicant
– and –
M.R.N.
Respondent
REASONS FOR JUDGMENT
M. Kraft, J.
Released: January 3, 2024
Footnotes
- The consent final order of Steele, J., dated May 24, 2022 provides, among other things, that the parties are to meaningfully consult with one another on all major decisions that impact the children and, failing agreement, the respondent has final decision- making authority; the children are to reside primarily with the respondent in Kitchener, and reside with the applicant on alternate weekends from Friday after school to Sunday evening at 7:30 p.m. and every Wednesday from 5-9 p.m.; a holiday schedule was agreed to; the applicant was to make his income and financial circumstances transparent to the respondent until the issues were resolved and the trial of the remaining issues of child support, spousal support and property division was to commence on January 30, 2023 for 5 days.
- Nathan’s CAF pension began to be paid to him in May 2023.
- Exhibit #38 at Trial.
- Exhibit #40 at Trial: Tuition Statement for J. for the period July 31, 2022 to January 1, 2023.
- Rilli v. Rilli [2006] O.J. No. 4142 (Ont. S.C.) 2006 CanLII 34451; Perino v. Perino (2007), 46 R.F.L. (6th) 448 (Ont. S.C.), 2007 CanLII 46919; Decker v. Fedorsen, 2010 ONCJ 618, 2010 CarswellOnt 9891.
- Exhibit #30 at Trial, letter from Dr. Drandic; Exhibit #31 at Trial: Letter from Dr. Dusseault, dated May 12, 2022; and Exhibit #32 at Trial: letter from Dr. Dusseault, dated January 19, 2023.
- A.A.M. v. R.P.K., 2010 ONSC 930; Rockall v. Rockall, 2010 ABCA 278, 490 A.R. 135; Chapman v. Chapman, 2010 CarswellOnt 2343 (S.C.); and Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271.