COURT FILE NO.: FC-20-1991 DATE: 2024/01/26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARJOLAINE WALKER Applicant – and – JASON ALLAN WALKER Respondent

COUNSEL: Deborah Bennett, for the Applicant Self-represented, for the Respondent

HEARD: November 27, 28, 29, 30 and December 8, 2023.

REASONS FOR DECISION

AUDET J.

[1] The parties had resolved or abandoned all issues in dispute between them except for child and spousal support by the time the trial in this matter began. More specifically, as it relates to the substantive issues of child and spousal support, I had to determine the parties’ respective income, the nature of the Applicant’s entitlement to spousal support, and the quantum of both child and spousal support, from June 1, 2020 onwards.

[2] One of the main issues of contention was the determination of the income, if any, to be imputed to the father pursuant to a Share Purchase Plan (stock options) available to him through his employment in the construction industry.

[3] Although the parties had agreed to a number of terms to be incorporated into a final order, there remained some disagreement on other provisions, such as annual review of support, annual financial disclosure and medical and life insurance coverage, which I was asked to decide.

Background facts

[4] The parties married on October 5, 1996, and separated on March 31, 2020. They cohabitated for roughly one year before getting married. They have four children, namely, Bethany (now 24), Allison (now 22), Jacob (now 17) and Anelie (now 15). No claims are being made in this proceeding in relation to the support of the two older children.

[5] The Respondent father moved out of the matrimonial home on or about May 18, 2020. The Applicant mother remained in the home with the children until the home was sold on March 17, 2022. After residing with the children at a friend’s home for a few months, the mother purchased and moved into her own home where she continues to reside with the two younger children. These children have remained in their mother’s primary care since the father moved out of the home.

Entitlement to spousal support

[6] Although the father does not dispute that the mother is entitled to spousal support, he disputes that her entitlement is compensatory in nature, and advances the position that her entitlement is based purely on needs.

[7] This position, in my view, is simply untenable.

[8] The parties met in 1994 in Sudbury when both parties were completing their college education; the mother in Gerontology and the father in Civil Engineering Technology. When the parties moved in together in 1995, the mother began working in a nursing home but maintained part-time employment as a waitress because it paid more than the work she was able to find in her field of study. The father had difficulty finding the type of employment he wanted in the construction industry in Sudbury, so when he was offered a job as an Estimator in Land Rock, British-Columbia, the parties married and moved to British-Columbia.

[9] Over the course of the ten years that followed (1996 to 2007), the parties moved six times to various locations in British-Columbia and in Ontario to allow the father to move from one employment to the next. The parties first moved from Sudbury to Langley, B.C., in April 1996; then to Prince Georges, B.C., for one year; then to Barrie, Ontario, for three months; then to Guelph for five years; then to Brandon, Ontario for three years; and finally, to Ottawa in 2007.

[10] While the father began his career as an estimator earning in the range of $30,000 per annum, by the time the parties moved to Ottawa in 2007, he was earning a six-figure income (which included profit-sharing and share purchase options) as a Senior Estimator with EllisDon, one of the largest construction companies in North America. By the time the father’s employment with EllisDon ended in 2018, the father was in charge of a group of eleven estimators from various offices across Canada, earning in excess of $300,000 per year.

[11] In June 2019, a year before the parties separated, the father became the Director of Preconstruction in the Buildings’ Division of Ledcor Projects Eastern Limited (hereinafter referred to as “Ledcor”), which is based in Ottawa. In that position, he was earning a base salary of $220,000 plus an annual profit-sharing program, RRSP contributions, a $9,800 annual vehicle allowance, as well as share purchase options. It is not disputed that during the year the parties separated (2020), he earned a total yearly income of $258,623, in addition to other significant benefits (dividends and capital gains) which were not included in his income but instead accounted for in the division of the parties’ net family property. By 2022, the father’s employment income (excluding the value of any share purchase options, which is in dispute) had reached $280,440.

[12] The father continues to be employed in the same capacity with Ledcor, although his duties have changed over the course of the past year or so due to the stress of the ongoing litigation and the need for health reasons for him to take some time off.

[13] Other than during the first two years of the parties’ marriage (1995-1996), the mother was never gainfully employed outside of the home. She was able to secure some work in British-Columbia in her field of study when the parties first moved there in 1996, but the mother also continued to work as a waitress because the work was more easily available and paid more. By the time the parties moved back to Ontario in 1998, the mother was pregnant with the parties’ first child, and she was quite sick during her pregnancy. Due to the parties’ recent move and because she was pregnant, the mother did not look for employment.

[14] After the parties’ first child was born in March 1999, the decision was made that the mother would remain home to care for the child and the household. This state of affairs was not only agreed upon by the parties; the very traditional roles adopted by them during their marriage were in line with their deeply held religious beliefs and were approved and encouraged by the members of their extended families and of the various Christian communities that they belonged to over the course of their marriage. The parties went on to have three more children after Britney was born, and while I have no doubt that the father was a loving, involved, and engaged parent, the evidence makes it clear that the vast majority of childcare responsibilities (including activities, schooling, doctors’ appointments and day-to-day care) and household duties (cleaning, cooking, laundry and maintaining the home) were the responsibility of the mother.

[15] During the last five years of his employment with EllisDon, the father was responsible for the Ottawa office as well as for the company’s Winnipeg, Saskatoon and Calgary offices (in full or in part), and a growing team of estimators who reported to him. This required him to travel frequently from Ottawa to these locations on a weekly basis. When the father left EllisDon to accept a position with Turner Construction (as part of the parties’ potential plan to move to Florida), he was required to move to Toronto where the company’s office was located. During the eight months of his employment with this company, the father lived in Toronto (coming back to Ottawa only on weekends) and the mother remained in Ottawa with the four children, visiting the father with them in Toronto one week per month. When the parties’ plan to move to Florida did not materialize, the father found employment with Ledcor and came back to Ottawa permanently.

[16] As stated earlier, the Christian faith is an extremely important part of this family’s life. During the time they resided in Ottawa, they were part of the Chapel Ridge Free Methodist Church, and both devoted significant time volunteering on its Board of Directors and in its various Ministries. While I find that both parties volunteered in various religious endeavours related to their church, it is clear that the father was most heavily engaged in these activities, having sat on many boards of directors and executive committees for the completion of various important projects for the church, including the substantial renovation of the building from which the church currently operates.

[17] The father’s significant volunteer work required him to be away from the family frequently in the evenings, and the entire burden of caring for the home and the children fell upon the mother’s shoulders. I accept the mother’s testimony that although she also engaged in quite a bit of volunteer work, which the church expected of her, at some point she decided to quit these activities because “a parent just needed to be home for the children” (her words).

[18] Additionally, for a period of three years and at the insistence of the father, the mother homeschooled the two youngest children, Jacob (grade 5 to 7) and Anelie (grade 7 to 9). For the three previous years, the children had attended a private Christian school located 45 minutes away from the parties’ home, and the mother was required to drive the children and then pick them up half-way (where they would take the bus) every day, twice a day. The parents of the children attending that school were also required to do volunteer work for the school, and most of those obligations were fulfilled by the mother. The two children returned to the public school system at some point after the parties’ separation.

[19] While the mother did set up a few businesses during the later years of the parties’ marriage to facilitate her passion for arts and healing (as will be described in more detail below), she never earned any meaningful income from these activities. I find as a fact that her role as a homemaker and as the children’s primary caregiver made it impossible for her to devote the time and energy necessary for these businesses to flourish. At best, her home-based businesses produced only sufficient income to allow her to purchase the supplies that she needed to pursue these hobbies, and to attend the occasional yearly retreat in Canada and the United States related to arts and healing.

[20] The Supreme Court of Canada’s decision in Moge v. Moge, [1992] 3 S.C.R. 813, continues to be the leading case and the starting point for any analysis on the issue of entitlement to spousal support. In Moge, the Supreme Court recognized the following at pp. 848-49:

Conversely, marriage and the family often require the sacrifice of personal priorities by both parties in the interests of shared goals. All of these elements are of undeniable importance in shaping the overall character of a marriage. Spousal support in the context of divorce, however, is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from “marriage or its breakdown”. Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects ”. [First emphasis in original. Second emphasis added.]

[21] At pp. 861-62, the Court adds:

Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non-monetary and came in the form of work at home, such as taking care of the household, raising children, and so on. Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals. This eventually may result in inequities.

Hence, while the union survives, such division of labour, at least from an economic perspective, may be unobjectionable if such an arrangement reflects the wishes of the parties. However, once the marriage dissolves, the kinds of non-monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one. ” [Emphasis added.]

[22] There is no question based on the facts of this case that while both parties made significant contributions, financial and non-financial, to the well-being of all members of their family, without the mother’s unpaid and significant contributions to the relationship, the father would have never been able to devote the vast majority of his time growing his career and maximizing his income earning capacity (not while also raising four children). Due to the role she played within this marriage, the mother did not have access to the same career opportunities and professional growth as the father did. Now that the parties are separated, she will be deprived of an ability to share in the fruits of the parties’ joint efforts and sacrifices, unless spousal support is awarded.

[23] For all these reasons, I come to the unequivocal conclusion that the mother has a very strong entitlement to compensatory spousal support, and that she is entitled to same for an indefinite duration.

Quantum of child and spousal support

[24] To determine the amount of spousal support to which the mother is entitled, I must first determine what the parties’ respective incomes are.

1- The Mother’s Income

[25] The father takes the position that a $40,000 yearly income should be imputed to the mother from June 2020 onwards. In his view, the mother has the necessary skills to find employment in the field of gerontology or as an administrative assistant – among other things – and that she should be able to earn at least $40,000 per annum in that capacity. He is of the view that the mother has failed to make any efforts to find full-time employment or to contribute to her own support since the parties separated, something that in his view she should have been able to achieve as early as June 2020 (the month following the father’s departure from the matrimonial home, a few months following the parties’ separation).

[26] I have no doubt that the mother would be able to find full-time employment and earn in the range of $40,000 per year if she put her mind to it and was not too particular about the type of work she should engage in. The mother is highly intelligent, educated and very resourceful. I am confident that she would be able to find a full-time job paying minimum wages or slightly more if she made efforts to do so.

[27] However, this is not the end of the analysis. On the particular facts of this case, the first question is whether it would have been reasonable to expect that the mother would secure full-time employment immediately after the parties separated, as the father submits. The second question is whether the mother should be required to go back to a field in which she has not worked for over fifteen years, or any other field so long as it generates at least minimum wage income, or whether she should be given a reasonable opportunity to retrain and pursue career opportunities in the field of her choice.

[28] In my view, it would not have been reasonable on the facts of this case for the father (or this Court) to expect the mother to go back to work full-time (in any field) four months after the parties separated. This would completely disregard the fact that the mother, at age 46, had not been part of the workforce for more than twenty years, and that her training in the field of gerontology was by that point obsolete. Further, in addition to being the primary caregiver of the younger two children, many circumstances which occurred after the parties’ separation made it very difficult (if not impossible) for the mother to contemplate a return to the workforce in any capacity.

[29] Firstly, at the time the parties physically separated, the world was in the middle of a pandemic which halted the operations of most businesses and institutions, making employment opportunities scarce. Additionally, at the time the parties separated the mother was still homeschooling the younger two children. Although it is not clear when exactly they returned to the public school system (my understanding is that this occurred in the Fall of 2020), for various periods of time the children were attending school online (they were 14 and 12 at the time), making it challenging for the mother to consider a return to the workforce. In addition, following the parties’ separation, the mother had serious health issues which were only recently resolved via a hysterectomy surgery.

[30] When the matrimonial home was finally sold in March 2022 the mother, who until then had had exclusive possession of the home, became solely responsible for its sale and for moving everything out. Since it took a few months before the parties were able to reach a settlement with respect to the distribution of the net proceeds, which the mother needed to be able to purchase a new home, she and the youngest two children had to move in with a friend temporarily for a period of four months before she was able to permanently relocate into her current home at the end of 2022.

[31] Finally, in the summer of 2022 Allison had a profound mental health crisis, and she required significant support from her parents, including day-to-day care and assistance from her mother.

[32] Given all the above and considering the mother’s role as the family’s primary caregiver during the previous twenty years, it would have been unreasonable to expect that she would be employed on a full-time basis by June 2020, as the father advances.

[33] Moreover, I am of the view that the mother is entitled to a reasonable opportunity, at this point in her life, to pursue the career of her own choosing. During the later years of the parties’ marriage, the mother started a hobby business as an art and scrapbooking teacher (Twelve Stones Scrapbooking and Art Studio). In that capacity, she sold scrapbooking supplies, gave art classes, and attended occasional arts and scrapbooking workshops. It is not disputed that she never earned any significant amount of money with these business endeavours. I accept the mother’s testimony that her scrapbooking and art businesses generated just enough money to cover the cost of her art supplies and business expenses, allowing her to pursue this hobby.

[34] The mother’s true passion, which she has followed throughout the parties’ relationship, is in arts and healing (which includes healing though art). The mother began her personal healing journey in the early years of the marriage, to deal with her childhood traumas. Her passion for healing through faith and art is one that the mother fostered and consistently developed throughout the parties’ relationship. She attended several faith-based healing retreats and workshops over the years to develop her skills and knowledge in that field. The mother’s passion for healing is one that was fully supported by the father, who encouraged her to pursue it.

[35] Over the past year or so, the mother has set up an Art Therapy/Ministry Business through which she offers access to different levels of virtual healing programs via memberships. In the Fall of 2022, she joined the Kingdom Builders Academy, an online training program which provides coaching and mentoring in setting up this kind of business. Within one year, she has been able to launch her online platform and build a small client base while achieving the goals of many levels of her training.

[36] After having devoted her entire adult life to taking care of the home and of the family, and having supported the father’s career in every way, the mother should be given a reasonable opportunity to pursue her own career path, and a reasonable amount of time within which to achieve her full earning potential. The evidence before me supports the conclusion that the mother’s business plan is a viable one, and her expectations as to the income that it will generate within a reasonable period of time are realistic.

[37] For all the above reasons, I refuse to impute an income to the mother for the purpose of spousal or child support retroactive to June 2020. Her income for 2023 will still be minimal. However, the evidence supports a conclusion that as of 2024, the mother should be able to generate a yearly income at least equivalent to minimum wages. From January 2024 forward, I have decided to impute an estimated income of $35,000 per year to the mother, to be reviewed in three years to assess whether the level of income imputed to her on an ongoing basis continues to be reasonable or should be increased.

[38] To be clear, the review in three years is to assess whether the quantum of spousal support to which the mother is entitled should be varied considering her (then) income, the children reaching adulthood, her positive obligation to maximize her income, and any other change in circumstances which might affect the quantum of spousal support. Entitlement shall not be part of that review.

2- The Father’s Income (Stock Options)

[39] The father’s employment income (i.e., his salary and other conventional benefits such as his car allowance) is not in dispute. The main issue upon which the parties could not agree relates to the share purchase options available to him through his employment with Ledcor. Additionally, while the father agrees that any dividend income he receives from his employer constitutes income for child support purposes, he takes the position that it is not income for spousal support purposes.

[40] The last point is easily disposed of. The father presented no authority to support his position that dividend income received as part of his employment benefit package should be excluded from his income for spousal support purposes. I see absolutely no reason to exclude them in this case.

[41] It is not disputed that as part of his compensation package as an executive employee of Ledcor, the father has access to a Share Purchase Plan (hereinafter referred to as “the Plan”). The Plan applies to all common shares in the capital of Ledcor that are issued by Ledcor to eligible employees as part of the company’s share offering in any given year. The share offering is determined by Ledcor’s Board of Directors annually, in its sole discretion, and those employees who have access to this benefit have the option to purchase up to a certain amount of common shares at a price fixed by the company that is lower than their actual value.

[42] The company offers a generous financing plan allowing the employees who wish to avail themselves of this opportunity to receive a loan of up to 67% of the total purchase price to assist in the purchase of those shares. If the purchase price for the common shares is financed by Ledcor (“Loaned Shares”), they do not pay dividends until they are repaid by the employee. Employees are also permitted to fund the purchase of Ledcor’s shares with the use of private financing, in which case the employee will receive Paid Shares. If the purchase price has been fully funded by the employee without assistance from Ledcor (“Paid Shares”), the employee is entitled to receive dividends if/when declared by the Board of Directors on a yearly basis.

[43] An employee does not qualify for a loan from the company to purchase shares if the employee already has an outstanding loan with the company. The loans are given free of interest and must be repaid over a period of twelve years, in nine equal annual installments commencing on the fourth anniversary of the loan. The loan is repaid by using 50% of the employee’s after-tax bonus and 100% of the after-tax value of any annual dividend issued to the employee by the company. The employee’s ability to purchase shares is limited in time (usually a date within the next six months) and if not exercised, the option to purchase is lost forever.

[44] Both Loaned Shares and Paid Shares allow the employee to share in the growth of the company. Paid Shares that have been owned by an employee for not less than three years become vested. Loaned Shares are considered vested after being owned by the employee for the lesser of five years from the date of issuance, or three years from the date of conversion from Loaned Shares to Paid Shares. Once shares have vested, the employee can exercise one of the various Share Buy Back options set out in the Plan. If an employee leaves the employment of Ledcor for any reason, he/she must sell his/her shares to the company or, at the company’s sole discretion, facilitate their purchase by an existing shareholder. Without going into the complexity of the various price fixing methods, the formula is designed to provide a significant financial benefit to the employee upon sale, unless faced with negative market conditions or poor company performance.

[45] Stock options offered to employees are an accepted means of compensation and for the purpose of assessing support and they are to be treated as income subject to the Court’s discretion to exclude them under s. 17 of the Federal Child Support Guidelines, SOR/97-175 (hereinafter referred to as “the Guidelines”). This is clearly set out in Schedule III, s. 13:

Employee stock options with a Canadian-controlled private corporation

13 (1) Where the spouse has received, as an employee benefit, options to purchase shares of a Canadian-controlled private corporation, or a publicly traded corporation that is subject to the same tax treatment with reference to stock options as a Canadian-controlled private corporation, and has exercised those options during the year, add the difference between the value of the shares at the time the options are exercised and the amount paid by the spouse for the shares, and any amount paid by the spouse to acquire the options to purchase the shares, to the income for the year in which the options are exercised.

Disposal of shares

(2) If the spouse has disposed of the shares during a year, deduct from the income for that year the difference determined under subsection (1).

[46] As set out in this provision, there are two income components to share purchase options (stock options). Firstly, there is the monetary value received by the employee resulting from the ability to purchase shares from the employer company at a price that is lower than market value. This is often referred to as the “cash value”. Pursuant to Schedule III, s. 13(1) of the Guidelines, that value is added to the payor’s income in the year that the shares are purchased (when the option to purchase shares is exercised) even though for income tax purposes the income may only need to be reported when the underlying shares are later sold.

[47] Secondly, there is the financial benefit, in the form of a capital gains, which is realized at the time the underlying shares are disposed of. The capital gains form part of the payor’s income during the year the shares are sold. To avoid double-dipping, the cash value added to the payor’s income in the year of purchase is deducted from the gains realized during the year of their sale. This is set out in Schedule III, s. 13(2) of the Guidelines.

[48] The treatment of stock options under the Guidelines (as opposed to their treatment under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)), was summarized by the Ontario Court of Appeal in Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (Ont. C.A.), at paras. 27-28, as follows:

The appellant testified that his options were an accepted means of compensation intended to keep the bank competitive in retaining its senior executives. The trial judge accepted this evidence and held that as these options were acquired as part of the appellant's remuneration from employment they should be treated as income for the purpose of assessing both spousal and child support.

As I have indicated, the Guidelines came into force in May 1997. The treatment of option income for the purpose of assessing child support under the Guidelines after that date is clear. Options granted as an employee benefit are to be valued and added to a spouse’s income for the year in which the options are exercised under Schedule III and s. 13(1) of the Guidelines. Once the value of the option has been determined the court has a discretion to exercise under s. 17. If, as a result of the exercise of the options, the court is of the opinion that the spouse's income results in an amount that is not fair to the paying spouse, for example, because this is a one-time payment, the court can look at the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of the receipt of a non-recurring amount during those years.

[49] It is undisputable in this case that the father’s ability to purchase shares from his employer provides him with significant financial benefits, in the form of the cash value received at the time he exercises his stock options, in the form of dividends payable on Paid Shares, and in the form of capital gains he realizes when he sells the underlying shares in the manner permitted by the Plan. These benefits are only available to him as an employee of Ledcor and are unquestionably part of his overall remuneration package. Indeed, the father has also benefitted from this form of compensation as an executive employee of EllisDon.

[50] While the timing for the inclusion of stock option income (cash value or capital gains) in a payor’s yearly income for support purposes is made clear in Schedule III, what is not clear is whether the payor should be left with complete discretion as to the timing for the exercise of available stock options or the sale of the underlying shares. This issue arises because an employee can choose whether and when to exercise stock options and delay the sale of the underlying shares (once vested) to defer compensation for many years and "shield income" beyond the time when support terminates.

[51] This was one of the issues that arose in the case of Patterson v. Patterson (2006), 36 R.F.L. (6th) 268 (Ont. S.C.). In that case, the husband was entitled to receive restricted shares on an annual basis as an executive employee of the CIBC. Once entitled to the shares, the bank would place them in a trust for a period of three years, with one third vesting each year. The employee then had the choice of leaving the shares in the trust for a maximum of three years, thereby earning trust income, or of taking them out of the trust, in which case their cash value would be deemed income upon receipt. Afterwards, the employee could hang on to the shares for as long as they wanted or sell them and realize a sizeable capital gain whenever the market conditions allowed for a significant profit to be gained.

[52] The evidence made it clear in that case that most employees would choose to take the shares out of the trust as soon as feasible to let them grow outside of the trust because the tax rate applicable to capital gains was far more advantageous than the tax rate applicable to the income flowing from the trust. The husband, however, had chosen to leave the vested shares into the bank’s trust, shielding sizeable income from being included as part of his income for support purposes.

[53] The court concluded that there were no apparent tax advantages to the husband’s choice to wait to take the vested shares available to him out of the bank’s trust. The court did not agree with the husband’s position that this decision was simply “an investment decision” and concluded that it made no sense for the husband to do so (other than to shield income for support purposes). The court stated the following, at paras. 102, 104:

It is within the husband’s control to take the shares when vested. If we allowed these shares to be included in income only when they appear on the husband’s income tax return, then they might not be available for purposes of child support for several years. This would be a problem once the children were no longer entitled to child support. There would be a large amount of income never utilized for child support purposes.

The shares are reasonably available once vested and within the husband’s control, so it is fair to deem that he will exercise the shares as soon as they are vested.

[54] The husband in that case also had access to stock options as part of his annual compensation package. They were granted annually and allowed him to purchase CIBC common shares which vested at the rate of 25% each year. The options expired after 10 years. This meant that the husband could defer the exercise of stock options beyond the period of his support obligations and once exercised, he could defer the sale of the underlying shares (even though vested) indefinitely.

[55] The court in Patterson not only concluded that the timing of a payor’s exercise of share options was one that ought to be considered as part of the analysis under s. 19 of the Guidelines, but that the timing of the sale of the underlying shares could also be considered under s. 19. The court stated the following at para. 116:

The husband takes the position that the Marinangeli case is stating that options are included in income, but only in the year they are exercised. I do not agree that the court is dealing with the timing of the exercise of the option. The court ruled that options are included in income. They have not addressed the issue of whether they should be considered as income once vested and available to the payor under section 19 of the guidelines.

[56] The relevant parts of s. 19 of the Guidelines read as follow:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; [and]

(e) the spouse’s property is not reasonably utilized to generate income.

[57] The court concluded, at paras. 122, 128, that stock options available to the husband should form part of his income for support purposes during the year they vested regardless of whether he chose to exercise them (sell them) or not [1]:

Section 13 of Schedule III is clearly subject to section 17 -20. I believe that section 19 of the guidelines should be utilized when it comes to stock options in this case. Options of some type have been available for the past ten years on an annual basis. If I only accept them as income once exercised, there could be easily over a million dollars in income that is unavailable for purposes of child support once the various termination periods arise. Under paragraph 19(1)(e), this would, in my view, be a case of the spouse's property not being reasonably utilized to generate income.

The principle of imputing income for unexercised stock options, in my view, is not very different from imputing income for retained earnings, or pre-tax corporate income. In each case, there is an order that property must be better utilized to generate income. It is as though income has been diverted. Both paragraphs 19(1)(d) and 19(1)(e) are relevant.

[58] The same conclusion was reached by the court in the case of De Zen v. De Zen (2001), 20 R.F.L. (5th) 326 (Ont. S.C.), at para. 42.

[59] The above is relevant because the mother in this case is seeking to impute to the father dividend income which he would have received had he elected to purchase all the shares made available to him by Ledcor every year since the parties separated. The mother also takes the position that the father should be deemed to have sold the underlying shares (those he elected to purchase) in the year they became vested, regardless of whether he chose to sell them at that time, and imputed an income commensurate to the gains he would have realized from their sale.

[60] There are very few cases dealing with the specific issue of timing in relation to stock options in Ontario or elsewhere in the country since Patterson was released. A key finding in both the Patterson and De Zen cases was that the payor was intentionally deferring significant income which would have unquestionably been available to him had he exercised his options when vested. Further, the evidence supported the clear conclusion that the payor would have gained a substantial financial benefit if he had sold them at that time.

[61] In my view, the decision to impute income to a payor for unexercised stock options (failure to purchase shares offered) or unrealized vested stock options (failure to sell the underlying shares when they vest) should not be automatic in every case and requires a careful analysis of many factors. While it would be clearly unfair to allow a payor to defer compensation available to him or her for the purpose of minimizing a support obligation, it would also be unfair to impute additional income on a payor in circumstances where there are valid reasons for the deferral of income. In my view, the following non-exhaustive factors are relevant to this analysis;

• In relation to the exercise of stock options (buying the shares offered by the company at a discounted rate): a. What are the terms pursuant to which stock options can be exercised? b. Is the employee required to finance the purchase? c. If so, what are the financing terms? d. Is there a requirement for the employee to pay a portion of the purchase price up front (in which case the employee must have immediate access to cash)? e. Must the financed portion be paid back with the use of the employee’s future earnings (thus diminishing the employee’s available income in future years)? Or is the company essentially “gifting” the shares to the employee? f. Would a reasonable person in the same circumstances exercise the stock options? g. What was the employee/payor’s practice in relation to the exercise of stock options during the marriage? Has his/her practice changed post-separation? Is there a valid justification for such change? What would have likely happened if the family had remained intact?

• In relation to the sale of the underlying shares (disposing of the shares previously acquired at a discounted rate): h. What are the terms upon which vested shares can be realized? i. What are the restrictions, if any, associated with their sale? j. How long can an employee defer their sale? k. Does the employee have any control over the deferral? l. What are the reasons/justifications for the deferral? For instance, if the company is not performing well and the shares would be sold at a low profit, a deferral might be reasonably justified; m. Is the deferral (of part or all available compensation) reasonable from a tax, retirement, or estate planning perspective? n. What is the purpose of the stock option package? Is it to help executive employees build a retirement fund or is it meant to supplement the employee’s income while serving other corporate interests (such as attracting and retaining executive talent while tying executive employees’ compensation to their and the company’s overall performance and success)? o. Would a reasonable person sell in the same circumstances? p. What was the employee/payor’s practice in relation to vested shares and the deferral of compensation during the marriage? Has his/her practice changed post-separation? Is there a valid justification for such change? What would have likely happened if the family had remained intact?

[62] When it comes to the exercise of stock options, the primary consideration appears to be whether it is financially feasible for the employee to exercise his or her option and if so, whether it makes clear financial sense to do so at any given point in time. When it comes to the sale of the underlying vested shares, the primary consideration would seem to be whether there are any valid reasons for the employee’s deferral of available compensation, or whether the employee is simply (and intentionally) deferring same for the main purpose of minimizing existing or future support obligations.

[63] In either case, the nature of a payor’s support obligation may be an important factor. Both parents have a positive obligation to maximize their income to support their children to the best of their ability. The deferral of compensation which his readily available to a payor, to the detriment of children’s current needs and well-being, should not be permitted unless there are valid reasons. Similarly, when a recipient’s entitlement to spousal support is strongly compensatory, there will be a heightened expectation that he/she will be able to continue to share in the future wealth available to the payor as a result of the recipient’s significant contributions during the relationship. In that case, there may be a stronger expectation on the payor to maximize his/her income each year, including by exercising stock options available to him/her (if financially able to do so), and to elect to immediately receive compensation (for instance realizing on vested shares) as soon as it becomes available, unless market conditions or other valid justifications militate in favour of a deferral.

[64] In the case at hand, the financial benefits available to the father through his employer’s Share Purchase Plan is an integral part of his compensation package as an executive employee of Ledcor. There is no doubt that these benefits are offered to selected and key executive employees for the purpose of attracting and retaining them, but also to tie their compensation to the success of the company. Ledcor could have chosen to pay them a higher employment income, but instead chose to remunerate them in this fashion. Given the father’s compensation history, this appears to be common in the construction industry.

[65] Nonetheless, I am not prepared to impute to the father the additional income (of any kind) that he would have earned if he had exercised all the share purchase options offered to him by his employer in any given year. There are many reasons why the father has, over the past three years, declined to exercise all (or any) of the share options offered to him. These are the same reasons why he may not fully exercise these options in the future. Eligible employees of Ledcor are required to fund at least 33% of the share purchase price, and the father may not be in a financial position to do so each year. Even if he were, he may prefer to use his money otherwise or to invest it differently. The father may take a cautious approach to exercising share purchase options if he is considering a change of employment (the shares are valued very differently when sold as a result of a departure from the company). The father may also prefer to have access to all his income (including dividends and bonuses) in any given year instead of being required to use a good portion of it to repay Loaned Shares (which is mandatory under Ledcor’s Share Purchase Plan).

[66] The father testified as to the reasons why he chose not to fully exercise all the share purchase options offered to him in the past three years. His stated reasons made sense and I did not find that he was doing so for the purpose of minimizing his support obligations. Simply put, the father has provided a reasonable explanation for the financial decisions he made during those years, and I am not prepared to second-guess his financial planning for those years. Among other things, he chose to invest in real estate (when he was planning to build himself a new home), and given the ongoing family litigation, he felt very insecure about his future financial situation. Considering all these unknowns, the father made the decision to exercise only some of the share options offered to him.

[67] Similarly, I am not prepared to impute to the father an income commensurate with the capital gains he would have realized had he elected to sell the shares he owned immediately upon vesting. There are many reasons why I decline doing so in this case.

[68] Firstly, it appears from Ledcor’s Share Purchase Plan that there are important restrictions to an employee’s ability to dispose of Paid Shares [2]. The Plan provides that employees have the following options to sell their shares while in the full-time employment of Ledcor (Share Buy Back options):

(a) A one-time option to sell up to a maximum of 20% of their Paid Shares (determined on the date the employee exercises their option), provided that such Paid Shares are vested shares; and

(b) Upon turning 55 years of age, to request that Ledcor repurchase up to, but not exceeding, 10% of the employee’s Paid Shares (provided that such Paid Shares are vested shares) on an annual basis over the next ten years (after first deducting any outstanding loan owing to the company or to a private lender).

[69] In the event that an employee leaves Ledcor for any reason, or exercises one of the Share Buy Back options described above (available only to full-time employees), any common shares (vested or not) owned by the employee will be dealt with through one of, or a combination of, the following alternatives, as determined by the Board of Directors in its sole discretion and subject to the terms of the Unanimous Shareholders’ Agreement in effect at the time;

(a) Ledcor will repurchase the employee's Common Shares within 180 days of either the employee’s departure or exercise of a Share Buy Back option (as above); or

(b) Ledcor will endeavor to facilitate a purchase of the employee’s common shares by the remaining shareholders of Ledcor.

[70] The methodology for fixing the purchase price will be less advantageous if the employee is departing the company (for any reason) then if the employee exercises one of the Share Buy Back options set out above (while a full-time employee).

[71] Considering these provisions, it becomes clear that the father does not have the ability to realize on all of his vested shares as soon as they become vested. He can only realize on a maximum of 20% of his vested shares, one time only, or upon turning 55 in which case he will be able to sell his shares gradually over the next ten years. It appears that one of the purposes of Ledcor’s Share Purchase Plan is to provide full-time executive employees with the ability to defer income until closer to their retirement and assist in building themselves a retirement fund. An employer’s yearly contribution to an employee’s defined benefit pension plan does not form part of the employee’s income for support purposes either, although it is clearly a significant financial benefit. It becomes part of the employee’s income (and taxable) when withdrawn upon retirement.

[72] Although I am not aware of whether the father had access to stock options as part of his remuneration package with all his previous employers, it was clearly part of his remuneration package with EllisDon. The evidence presented to me in this trial shows that although he exercised stock options during his employment with that company, he did not realize on any underlying shares until he left the company in 2018 and moved on to Turner Construction. As per the terms of the stock option plan offered by EllisDon, upon departing the company the father was required to sell back to the company all the shares he had acquired during his employment with them. The Share Summary adduced in evidence confirms that none of the shares acquired by the father during his employment with EllisDon had been redeemed at any point during the years he was employed by them. They were only redeemed when he departed the company, and at a significant profit (none of which was taxable in his hands due to the capital gain exemption available to him at the time).

[73] For all those reasons, I am not prepared to impute income to the father on account of unexercised share purchase options or on account of unrealized vested shares for the years 2020 to present. Evidence may demonstrate that it would be reasonable to do so in the future, but based on the evidence before me, I find that it would not be appropriate to do so for the past three years.

[74] However, the cash value of the stock options he did exercise during those three years (he only did so in 2022) should be included in his income during the year of their purchase. Also, any capital gains flowing from the future sale of any underlying shares will be part of his income for support purposes during the year they are sold (as adjusted in accordance with Schedule III, s. 13 of the Guidelines).

[75] Based on the above, I come to the following conclusions with respect to the father’s income for the years 2020 to and including 2023:

For 2020, the father’s total income was $258,680 comprising of:

• Employment income of $258,623 (which includes a $9,600 car allowance, minus an amount of $14,683 related to dividends from EllisDon which the parties have agreed to exclude)
• Interest income in the amount of $57

For 2021, the father’s total income was $267,446 comprising of:

• Employment income of $267,446 (which includes a $9,600 car allowance, minus an amount of $14,683 related to dividends from EllisDon which the parties have agreed to exclude)

For 2022, the father’s total income was $308,332 [3] comprising of:

• Employment income of $280,440 (which includes a $9,600 car allowance)
• Taxable Canadian dividends (all) of $38,083
• Interest income in the amount of $296

[76] In 2022, the father exercised the share purchase offer received from Ledcor, and he purchased 40,000 shares at a cost of $285,600 (at $7.14 per share). The cash value of those shares is unknown to me (I have no evidence as to the actual value of Ledcor shares in 2020), and I am unaware of whether the father’s T4 income in 2020 includes the cash value of the shares he purchased (in accordance with Schedule III of the Guidelines, that value is to be included in the father’s income during the year he purchased the shares).

[77] It is my understanding (although no evidence was led in that regard) that for income tax purposes the father did not have to report the cash value of the shares in his income during the year he purchased them (as Ledcor is a Canadian-controlled private company), but only during the year he disposes of his shares. However, I may be wrong on that. No evidence was presented to me on this point during the trial, and I did not receive any submissions as to the tax treatment of the father’s exercise of his share options that year.

[78] I wish to note that I am not criticizing the mother or her counsel for their failure to adduce relevant evidence in that regard. As will be explained later in these reasons, the father failed to disclose the existence of Ledcor’s Share Purchase Plan until only a few weeks before this trial began, and thereafter went to great length to prevent the mother from accessing relevant disclosure in that regard, including from his employer. The mother’s counsel was thereby placed at a significant disadvantage when presenting her client’s evidence and making her closing submissions. She did the best she could with what she had.

[79] To the extent that the mother wishes to adduce additional evidence and make submissions in relation to the cash value of the shares purchased by the father in 2022, which should be added to the father’s income for support purposes for that year, I may be spoken to. Both parties will be offered an opportunity to complete their evidence and make submissions in that regard. In the meanwhile, I will be using $318,819 for the purpose of assessing the father’s support obligations for the year 2022.

For 2023, the father’s total income was $317,768 [4] comprising of:

• Employment income of $296,000 (which includes a $9,600 car allowance)
• Taxable Canadian dividends (all) of $29,632
• Interest income in the amount of $296

3- Quantum of Child and Spousal Support

[80] The parties agree that support arrears are to be calculated from June 2020 onwards. They also agree that over the course of the three years that followed (up to the date of this trial), the father made contributions totaling $31,720 (net) which ought to be deducted from any support arrears owing by him for those years. Finally, no claims are being advanced in relation to past section 7 expenses for the children.

[81] The father takes the position that the mother is not entitled to share in any post-separation increases in his income, and that spousal support (not child support) should be based on the income he earned the year the parties separated.

[82] I strongly disagree. The mother’s entitlement to spousal support is highly compensatory. She directly and significantly contributed to the success and growth of the father’s career by virtue of the role and responsibilities she took on within the family unit during the marriage. She put her own career on the backburner while assuming the role of primary caregiver to four children and homemaker for the entire family. She “held the fort” at home thereby allowing the father to devote most of his time building his own career and climbing up the ladder of his trade. [5] As a result, it is unquestionable on the facts of this case that the mother is entitled to share in the father’s increased earnings post-separation, which she helped create during the marriage.

[83] Since any spousal support award I make today for the years 2020 to and including 2022 will not be taxable or tax-deductible to the parties, the total amount payable by the father for those years needs to be determined on a net (after-tax) basis. I see no reason to depart from the principles adopted by Shelston J. in Verhey v. Verhey, 2018 ONSC 1943, and I have chosen the mid-point between the after-tax cost to the father and the after-tax benefit to the mother for the purpose of arriving at a fair net amount of spousal support payable for those years.

[84] Based on the father’s income as set out above, he should have paid the following child support for the parties’ two children (Jacob and Anelie) who continue to be dependant and to live primarily with their mother:

• In 2020, a total of $23,667 ($3,381 per month for the months of June to December) based on his income of $258,680;
• In 2021, a total of $41,832 ($3,485 per month for twelve months), based on his income of $267,446;
• In 2022, a total of $47,724 ($3,977 per month for twelve months), based on his income of $308,332;
• In 2023, a total of $49,80 ($4,090 per month for twelve months), based on his income if $317,768.

[85] This results in a total amount of $162,303 owing in child support up until December 31, 2023. It is not disputed that the father paid child support pursuant to two interim orders made during these proceedings. The total amount paid by him from June 2020 to and including December 2023 is $110,528 [6], resulting in arrears of $51,775 owing as of December 31, 2023.

[86] As for spousal support, I have opted for the mid-range generated by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (hereinafter referred to as the “SSAG”) as an appropriate level of spousal support payable by the father to the mother given his past and present child support obligations. The mid-range suggested by the SSAG results in the father retaining approximately 45% of the total combined net disposable income, whereas the children and the mother retain roughly 55%.

[87] Based on the above, on the father’s income as set out above, and on the mother not earning any income from 2020 to and including 2022, I come to the following conclusions in relation to the father’s spousal support obligations for those years:

• In 2020, the father was required to pay monthly spousal support of $5,508 (gross), which translates into a mid-point after-tax amount of $25,325 for seven months;
• In 2021, the father was required to pay monthly spousal support of $5,588 (gross), which translates to a mid-point after-tax amount of $44,518 for twelve months;
• In 2022, the father was required to pay monthly spousal support of $6,813 (gross) for twelve months, which translates to a mid-point after-tax amount of $52,019 for twelve months.

[88] This results in a total net amount of $121,862 owing in spousal support for those three years. The parties agree that the father’s contributions in the amount of $31,720 must be deducted from any arrears owing, which means that the father owes a total amount of $90,142 on account of past (after-tax) spousal support for the years 2020 to and including 2022.

[89] From January 1 to December 1, 2023, based on the father’s income as set out above (with the mother earning no income), the father shall pay spousal support in the amount of $6,962 per month, taxable in the mother’s hands and deductible in the father’s hands (a total of $83,544 before taxes for 2023).

[90] From January 1, 2024 onwards, and until further order of the Court (or agreement between the parties), the father shall pay spousal support in the amount of $5,852 per month based on his 2023 income and the mother’s deemed income of $35,000 for 2024.

[91] The above amount of spousal support payable by the father to the mother results in an individual net disposable income (after child support) of 57% for the father and 43% for the mother. Since the cost of the children’s future s. 7 expenses is not known at this time, nor included in the support calculations (which would lead to a lower spousal support amount payable given that the father would bear a larger part of these expenses), the individual net disposable income ratio set out above shall be used for the purpose of determining the parties’ proportionate share of the children’s s. 7 expenses on an ongoing basis.

[92] For expediency, I have used the Divorcemate calculations provided to me by the parties to create new ones which reflected my conclusions above. Although not attached as a schedule to this decision, I have provided a copy of my calculations to the parties for their review. If they note errors, omissions or discrepancies, I may be spoken to.

Other Disputed Items

[93] The parties agreed on many of the terms to be included in the final order. Notably, they agree that they should exchange income information by June 1 of each year, and that the father’s support obligations should be adjusted effective July 1st each year, based on the income earned by the parties the previous year, with the first review/adjustment taking place in July of 2025.

[94] The following orders which were requested by either the mother or the father were not seriously disputed, and shall be incorporated into a final order:

• Child support terminates for each child when the child ceases to be a child of the marriage as defined in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
• On or before June 1st of each year, commencing in 2024, the parties will exchange income information for the prior calendar year. They will use this information to adjust the child support payable, including both the Table Amount. Any change in the Table Amount shall commence on July 1st of each year, commencing in 2025.
• Until the child support is adjusted by an amending agreement or court order, Mr. Walker shall continue to pay the child support and any contribution to the children's section 7 expenses under the parties' most recent amending agreement or court order.
• If the children reside away from the home for educational purposes, this review will include a review of the Table child support payable by the father in order to take into account the reduced customary and recurring expenses, such as clothing, food, supplies, etc. to the mother, and the fact that parties and/or the child will now contribute to the child's away from home post-secondary educational expenses.

[95] The parties, however, disagreed on a few things which I will deal with separately below.

1- Yearly financial disclosure

[96] The father seeks an order confirming that income information will be exchanged each year “in accordance with the Child Support Guidelines”, whereas the mother seeks an order which specifies very clearly what each party must provide.

[97] It is important at this juncture to note that the father has not been forthcoming in relation to the disclosure of the substantial benefits available to him pursuant to Ledcor’s Share Purchase Plan, or the information relevant to his share ownership. Indeed, the very existence of the Plan was only discovered by the mother in the Fall of 2023, as was the father’s share ownership in Ledcor.

[98] I find as a fact that the father went through significant length to keep this part of his compensation package concealed from the mother, and that he only disclosed his share ownership in Ledcor for the first time a few weeks before this trial began (even though he has owned those shares since 2022). Even then, and despite the significant efforts deployed by the mother’s counsel to obtain full and frank disclosure about this important part of the father’s compensation package, up until this trial began the mother had only been provided with those bits and pieces that the father was prepared to share (and which did not provide much information).

[99] The father appeared to be of the view, based on his belief that any financial benefit flowing from Ledcor’s Share Purchase Plan did not form part of his income, that he had no obligation to disclose it. He strongly resisted any efforts made by the mother’s counsel to obtain documentary evidence establishing the detail of the Plan and allowing her to value the various components of his share ownership.

[100] Similarly, based on his view that his 2023 income was only relevant to establishing his support obligations from July 1, 2024 onwards, he took the position that he had no obligation to disclose his 2023 income for the purpose of this trial. The full extent of the income earned by him in 2023 (including dividend income and bonuses) was only revealed mid-trial. The father’s position on these issues not only resulted in increased costs to the mother, it also forced the adjournment of the trial for a week to allow all relevant disclosure to be produced at my direction.

[101] For those reasons, it is important to set out in much detail the specific information that the father will be required to provide on a yearly basis. The following provisions shall be included in the final order:

1. By June 1 of each year, the father shall provide the following income disclosure: a. The income information listed in s. 21(1) of the Guidelines, including but not limited to the following: i. a copy of his personal income tax return for the previous year; ii. a copy of his notice of assessment and reassessment for the previous year; iii. his three most recent statements of earnings indicating the total earnings paid in the year to date, including overtime, bonuses and any other form of employment income (T4) information; iv. documentary evidence of any other form of compensation received by the employee during the previous year or made available to him, including dividends, stock options and share purchase offers, as well as a copy of his employer’s Share Purchase or Stock Option Plan on a yearly basis, Share Purchase Statements, Dividend Statements, and any documents necessary to value any compensation or share purchase offers received by him from his employer (for instance, if share options are exercised, the documentary evidence allowing the mother to determine the cash value received).

2. By June 1 of each year, the mother shall provide the following income disclosure: b. The income information listed in s. 21(1) of the Guidelines, including but not limited to the following: i. a copy of her personal income tax return for the previous year; ii. a copy of her notice of assessment and reassessment for the previous year; iii. if employed, her three most recent statements of earnings indicating the total earnings paid in the year to date, including overtime, bonuses and any other form of employment income (T4) information; iv. if self-employed, her statement of business activities duly completed along with a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the mother does not deal at arms’ length, as well as any additional documentation requested by the father to confirm the nature and extent of any business expenses deducted from her business income.

2- Health coverage

[102] The mother seeks to include in the final order a provision requiring the father to maintain the two dependant children as beneficiaries of the health and dental plan available to him through his employment. The father indicates that he will provide medical insurance coverage but that he does not want this obligation to be included in a court order. He has provided no valid justification for his position on this issue, and I see no reason why the following provisions should not be part of my final court order:

1. The father shall maintain the children as beneficiaries of the group health insurance policy available to him through his employment for as long as it is available to him, to cover the child's medical needs.

2. If the father’s health insurer permits, the father shall sign documentation authorizing the mother to make claims directly to the father’s health insurer, and to have the health insurer issue reimbursement directly to the mother.

3. If is not possible in whole or in part, the father shall promptly submit receipts for a child's medical needs received from the mother to the health insurer and immediately e-transfer the reimbursement amount to the mother upon receipt of the reimbursement amount from the health insurer.

3- Life insurance to cover child and spousal support

[103] The mother seeks an order requiring the father to maintain life insurance coverage naming her as irrevocable beneficiary to secure his child and spousal support obligations. The father disagrees.

[104] The court has the power to require a support payor to maintain life insurance coverage to secure their support obligations. This is clearly set out in ss. 15.1(4), 15.2(1) and 15.2(3) of the Divorce Act. Given the amount of child and spousal support payable by the father, the later of which is payable for an indefinite duration, there is clearly a need on the part of the father to secure those obligations by way of life insurance coverage, and I so order.

[105] The amounts of life insurance coverage sought by the mother are lower than the amounts suggested by Divorcemate considering the support payable by the father and the duration of his child and spousal support obligations.

[106] Based on the above, the following provisions shall be incorporated into the final order:

1. As long as the father is obligated to pay child and/or spousal support to the mother (as the case may be), he shall: (a) keep an insurance policy in force via his employment or otherwise; (b) not borrow against the policy and will ensure that the policy remains unencumbered; and (c) irrevocably designate and maintain the mother as the beneficiary of: i. $1,000,000.00 of the proceeds of the policy as security for the father’s spousal support obligations outstanding as at the date of his death; ii. $200,000.00 of the proceeds of the policy as security for the father’s child support obligations outstanding as at the date of his death.

2. If the father leaves his employment with Ledcor, he shall replace his group life insurance policy with private life insurance coverage, which was made available to him through employment, ensuring no gap in coverage.

3. The father shall provide the mother with a copy of the policy(ies) and the irrevocable beneficiary designations, and a direction permitting the mother to confirm directly with his employer and/or insurer that the life insurance policy is unencumbered and in force.

4. Within 14 days of each anniversary date of the policy, the father shall provide the mother proof that he and/or his employer has paid the premium, and policy is in force.

5. As the father’s support obligations decrease over time, he may request a review of the amount which he is required to maintain to guarantee his support obligations every two years for as long as he is required to pay child support, and thereafter (once his only obligation is to pay spousal support) every three years.

6. Once the father’s spousal or child support obligations end, he may terminate the life insurance policy and/or change the designation for the beneficiaries, and the mother shall consent and sign the requisite paperwork.

4- Indexation of spousal support

[107] I will not include in my final order an indexation clause, which was requested by the mother. This is because the father’s child support obligations will be adjusted on a yearly basis over the next several years, which will subject the father’s spousal support obligations to changes as well. In my view, an indexation clause serves no purpose currently.

Costs

[108] The mother was clearly the successful party in this trial. If the parties are unable to agree on costs, I will accept written submissions not exceeding ten (10) pages, double spaced, in addition to Bills of Costs and relevant Offers to Settle in accordance with the following timeline:

• The mother to serve and file her submissions by February 9, 2024;
• The father to serve and file his submissions by February 23, 2024;
• Any reply by the mother, not to exceed three (3) pages, shall be served and filed by March 1, 2024.

Madam Justice Julie Audet Released: January 26, 2024

[1] The use of the terms “exercise of vested stock options” in Patterson may be confusing to the reader. To be clear, at that stage in its decision the Court was dealing with the timing of the sale of the underlying shares acquired by the husband after having exercised the stock options (i.e. purchasing shares) made available to him in previous years.

[2] I was only provided with the 2020, 2021 and 2022 Share Purchase Plans, but they were all essentially identical except for the share offering and price fixing provisions, which changed from year to year.

[3] When all three sources of income are inserted in Divorcemate, the total income for support purposes is $308,332 rather than $318,819 as a result of adjustments made by the software for tax purposes.

[4] When all three sources of income are inserted in Divorcemate, the total income for support purposes is $317,768 rather than $325,928 as a result of adjustments made by the software for tax purposes.

[5] See Thompson v. Thompson, 2013 ONSC 5500, at para. 103; Cameron v. Cameron, 2018 ONSC 2456, at paras. 82-96; and Easton v. Coxhead, 2018 ONSC 4784, at paras. 104-09 (further discussion of circumstances where the support recipient may be entitled to share in the payor’s post-separation income increases).

[6] $29,408 in 2021, $40,560 in 2022 and $40,560 in 2023.