Court File and Parties

Court File No.: FS-22-32319 Date: 202 40102 Superior Court of Justice - Ontario

Re: Marlene Helen Bader-Higgins, Applicant And: Guy Andrew Higgins, Respondent

Before: M.D. Faieta J.

Counsel: Meysa Maleki & Nadine Saba, for the Applicant Lisa Katz, for the Respondent

Heard: September 19, 2023

Endorsement

1The Applicant brings this motion for the following relief:

1. A temporary Order that commencing July 1, 2023, the Respondent, Guy Higgins, shall pay the Applicant, Marlene Bader-Higgins, $9,739 per month in periodic spousal support and $4,115 per month in periodic child support for the children of the marriage, with payments to be made on the first of each month based on his annual income of $393,000;
2. A temporary Order that commencing July 1, 2023, the Respondent shall contribute 70% and the Applicant shall contribute 30% towards the children’s section 7 special and extraordinary expenses, including but not limited to their post-secondary educational costs and related expenses (such as their tuition, textbooks, residence, meal plans, transportation), less any RESP contributions and/or grants/scholarships, based on the Respondent’s annual income of $393,000 and the Applicant’s annual income of $117,718 (consisting of spousal support payments from the Respondent);
3. Without prejudice to the Applicant’s right to seek a higher retroactive support amount at the trial of this case, a temporary Order that the Respondent shall pay the Applicant retroactive support in the total amount of $133,754 for the time period of May 2021 to end of June 2023, within 30 days of the Order or such other timeline as this Honourable Court deems appropriate;
4. In the alternative to paragraph 3 above, without prejudice to the Applicant’s right to seek a higher retroactive support amount at the trial of this case, a temporary Order that the Respondent shall pay the Applicant retroactive support in the total amount of $64,024 for the time period of May 2021 to end of June 2023, within 30 days of the Order or such other timeline as this Honourable Court deems appropriate;
5. Without prejudice to the Applicant’s right to seek a further amount on account of interim disbursements prior to the trial of this case, a temporary Order that the Respondent shall pay the Applicant the amount of $40,000 (rounded) on account of interim disbursements for the Applicant’s anticipated legal fees and expert fees (Chartered Business Valuator), which shall be a credit to him in the case.
6. A temporary Order that the Respondent shall obtain and maintain life insurance in the amount of no less than $1.6 million dollars naming the Applicant as irrevocable beneficiary and in trust for the children to secure his child and spousal support obligations.
7. A temporary Order that the Respondent shall obtain and maintain medical, dental, and extended health care coverage for the Applicant and the children for so long as the Respondent has a support obligation to the Applicant and/or the children;
8. An Order that the Respondent shall pay the Applicant’s costs of this motion on a full recovery basis or in the alternative, in an amount as determined by this Honourable Court; and
9. Such further and other relief as counsel may advise and this Honourable Court deems just.

2The Respondent father seeks the following order:

1. On a temporary without prejudice basis, commencing October 1, 2023 and on the first day of each month thereafter, the Respondent shall pay the Applicant $9,781 per month in periodic spousal support, based on his income of $343,000 and an imputed income to the Applicant of $30,000.
2. The balance of the Applicant’s motion returnable September 19, 2023, shall be dismissed.

Background

3The parties separated on May 11, 2021, following a 30-year marriage. The parties have three children: Lauren, age 28, Alex, age 23, and Ben, age 20.

4The Applicant has a Bachelor of Arts degree and was working as a research assistant when she met the Respondent who was completing a post-doctorate degree in Pharmacology. Following their marriage, the parties moved abroad to advance the Respondent’s career. They lived in the United Kingdom for about five years, then Switzerland for about four years, the United States for about four years, and back to Toronto, with their children, in about 2005. The Applicant states that she has always been a “stay-at-home” mother as the parties decided early on that the Applicant would not work outside the home to focus on raising their children.

5The Respondent earns income primarily from three sources: 1) employment income from InterVivo Solutions Inc. where he is employed as Chief Scientific Officer; 2) self-employment income from Higgins & Associates, an unincorporated entity through which the Respondent provides services to Mindset Pharma Inc.; 3) dividend income from his family’s business, Higgins Bros Dairies Limited (“HBDL”) that is located in the United Kingdom.

6After their separation in May 2021, the parties continued to live in their jointly owned matrimonial home until the end of November 2021. The Respondent purchase a home in Elora, Ontario and moved there in December 2021.

The Parties’ Income

7Income for spousal support purposes is calculated in the same manner as income for child support purposes under the Federal Child Support Guidelines: Slongo v. Slongo, 2017 ONCA 272, para. 130. Under s. 16 of the CSG, the starting point is Line 15000 income under the CRA’s T1 income tax form. Under s. 17-19 of the CSG, this stated income may be adjusted in the circumstances described therein to reflect a party’s income “fairly and fully”: Mason v Mason, 2016 ONCA 725, at para. 161.

Applicant’s Income

8In her Financial Statement dated July 24, 2023, the Applicant states that she has been unemployed since the late 1990s in the United Kingdom. Her Line 15000 income was $850 in 2022, $201 in 2021 and NIL in 2020. The Respondent further submits that her income in 2023 is $850. See Exhibits “O” and “P” of the Applicant’s affidavit sworn July 24, 2023. The Applicant submits that her actual income should be used for purposes of calculating support.

9The Respondent submits that an annual income of $30,000 should be imputed to the Applicant on a temporary and without prejudice basis for the following reasons:

(a) The Applicant is intentionally unemployed and that such unemployment is not required to meet the needs of their adult children. In 2021 after five years of study, the Applicant obtained a certificate of Holistic Nutrition from the Institute of Holistic Nutrition. There is no dispute that both parties believed that the Applicant’s training would result in her generating income. The Applicant states that she has not had the time nor the opportunity to engage in trying to pursue a career in this field given the COVID pandemic, the consequences of their separation and this litigation. (b) The Applicant allowed her friend’s daughter to reside in the basement of the matrimonial home and did not charge rent. The Respondent states that charging rent for the six week stay would have made a nominal difference in the Respondent’s support obligations. (c) The Applicant owns a rental property in Florida with her sister which they inherited. The Applicant states that the property is managed by her sister and that any money earned from the rental of this property over a six-week period each year does no more than cover its carrying costs. No particulars were provided. The Respondent states that this property was rented from January to April from 2016 to 2020. The Respondent states that the property should be rented year-round.

10The test for the imputation of income for the purpose of determining support is outlined in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.).

11Given that the Applicant has completed re-training as a nutritionist, has no childcare responsibilities, no health impairments and has no apparent restrictions on her ability to contribute to her own support and that of the children, on an interim basis, I find that it is fair to impute an annual income of $30,000.00 to the Applicant based on employment at minimum wage. This figure does not include any income generated by property owned by the Applicant.

Respondent’s Income

12Each party retained an expert to prepare an income valuation report for the Respondent’s income.

13The Respondent relies on a report dated June 6, 2023 from Anna M. Barrett, Marmer Penner Inc. and the Applicant relies on a report dated July 14, 2023 from Antonina Wasowska, Cohen Hamilton Steger & Co Inc.

14The differences in income relate to whether the Respondent’s withdrawals from his RRSP in 2021 ($250,000) and 2022 ($49,972) as well as HBDL should be included as income for support purposes. The Respondent states that the withdrawn RRSP funds in 2021 were used to finance the purchase of his home in Elora, Ontario and that the withdrawal in 2022 was used for payments to the credit line, the Applicant’s personal VISA cards, property taxes and general expenses. For purposes of this motion only, the Respondent acknowledges that dividend income from HBDL should be excluded.

15In summary the reports conclude that the Respondent’s income was as follows

Year	Applicant’s expert (Scenario 1: Includes RRSP withdrawal, Includes dividend income from HBDL)	Applicant’s Expert (Scenario 2: Excludes RRSP withdrawal, Includes dividend income from HBDL)	Respondent’s Expert (Scenario 1: Excludes RRSP withdrawal)	Respondent’s Expert (Scenario 2: Excludes RRSP withdrawal, Excludes dividend income from HBDL)
2020	$232,000	$232,000	$214,000	$207,000
2021	$532,000	$282,000	$270,000	$262,000
2022	$393,000	$343,000

16In Ludmer v. Ludmer, 2014 ONCA 827, at paras 22-23, the Ontario Court of Appeal held the inclusion of RRSP income for purposes of calculating support is not required when it would not fairly reflect the financial capabilities of the spouses for the purposes of support. R.A. Blair J.A., stated:

22 This Court has held that RRSP income is "presumptively part of a spouse's income for child support purposes." That is because section s. 16 of the Guidelines provides that a person's annual income for child support purposes is determined using the sources of income set out under the heading "Total income" on the T1 tax form. RRSP income is included as part of "Total income" on the T1 tax form: see Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311 (Ont. C.A.), at para. 97.

23 The inclusion of RRSP proceeds is not mandatory, however, and the court has the discretion in appropriate circumstances to do otherwise. Section 17(1) of the Guidelines provides this flexibility:

If the court is of the opinion that the determination of a spouse's annual income under section 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 pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Emphasis added.]

17On the evidence before me on this motion, and having considered the Respondent’s pattern of income and the purposes of the withdrawal, I find that it would not be fair and reasonable to include his RRSP income for support purposes.

18Accordingly, for purposes of this motion only, I rely upon the figures provided by the Applicant’s consultant in Scenario 2 (exclude RRSP withdrawal and include dividend income from HBDL) to find that the Respondent’s income for 2020 was $232,000, for 2021 was $282,000 and for 2022 was $343,000.

Interim Child Support and Section 7 Expenses

19Each of the parties three children post-secondary education has been interrupted. The Applicant states that the children’s education was interrupted due to the Respondent’s failure to commit to provide financial support whereas the Respondent denies this claim. The Applicant further states that Alex and Lauren have learning disabilities. She states that a psycho-educational assessment recommended a reduced course load for them.

20There was $53,743.00 in their RESPs as of April 12, 2021 (just prior to separation). There is currently only $14,622 remaining. The Applicant states that the Respondent has made minimal contribution towards the children’s post-secondary education.

21Their youngest son, Ben, was in high school at the date of separation. From September 2021 to April 2022 and from September 2022 to January 2023, he attended the University of Ottawa and Carleton University in person. From February 2023 until August 2023, Ben lived primarily with the Applicant. Since September 2023, Ben has attended McGill University. The Respondent states that Ben’s first year tuition and living expenses were covered by a $4,000 scholarship and funds drawn from the RESP. His tuition in second year was paid from the RESP and his rent was paid from the parties’ joint account. Ben also worked at a grocery store on a part-time basis from October -December 2022. The Respondent submits that Ben’s hiatus from school should not be considered to be a “transitional period” and thus he was no longer a child of the marriage once he left Carleton University

22Alex graduated high school in June 2018. From September 2021 to January 2022, he attended Fleming College, in Peterborough, Ontario, remotely. From January 2022 to August 2023, he did not attend college or university. Alex worked part-time at Starbucks. The Respondent states that Alex has savings of about $42,000.00. Since September 2023, Alex attends St. Francis Xavier University, in Nova Scotia, in person. Nevertheless, the Respondent states that Alex has not been a child of the marriage since the beginning of December 2021 which is when the Respondent alleges that Alex stopped attending Fleming College.

23It appears that Lauren graduated high school in June 2013. There is no evidence of whether she attended a college or university prior to the date of separation. Lauren attended Trent University from May 2021-August 2021 remotely while living in the matrimonial home. From September 2021-December 2022 she attended Trent University in Peterborough and lived with the Applicant for holidays and during the summer. Since January 2023, Lauren has attended Toronto Metropolitan University and lives primarily with the Applicant.

24In deciding whether the children remain “children of the marriage”, I adopt the principles described by Charney J. in Edwards v. Edwards, 2021 ONSC 1550, at paras. 32-45. I find that the Applicant has not, on the materials filed, discharged her onus to establish that Lauren is a “child of the marriage” given her long absences from post-secondary education prior to attendance at Trent University. On the other hand, I find that both Ben and Alex remain “children of the marriage”. The Applicant asks that the Respondent pay 70% of the children’s post-secondary expenses. Once the RESP is exhausted, I find that it is appropriate on an interim basis that each party to pay 1/3 of such expenses and for each child to pay 1/3 of their own expenses.

Interim Spousal Support

25The principles that govern the award of interim spousal support were described by Charney J. in Da Silva v. Kelly, 2022 ONSC 1402, at paras. 73-76.

26Given their roles during the marriage, the age of the parties on separation, and their disparity in income, the Applicant has a strong prima facie case for entitlement to spousal support. On an interim basis, I find that a 50-50 split of their net disposable income is just.

27The parties have widely diverging views on whether the Respondent supported the family post-separation, that is post-December 1, 2021. The Applicant states that her credit cards are “maxed out” and that the children continued to reside with her when not attending university. The Respondent states that he has paid $322,000 towards the Applicant’s expenses post-separation and that he has paid $35,500 towards the post-secondary expenses of his three children.

28As noted by A. Doyle, J. in Elsaid-Yosef v. Shabana, 2016 ONSC 5457, at paras. 71, 74:

At an interim stage, the Court is providing an interim solution to meet the needs of the wife and the children pending the finalization or trial of the matter. …

There should not be lump sum awards that may be described as a redistribution of wealth until all material facts are known.

29The determination of the amount of a retroactive award of spousal and child support in this case, if at all, is a matter that should be determined at trial.

30In accordance with the DivorceMate calculation attached as Schedule “A”, I grant a temporary order that, commencing July 1, 2023, the Respondent shall pay $10,076.00 per month in spousal support and $1,464 in child support to the Applicant.

Interim Disbursements

31The Applicant seeks an order for the payment of interim costs in the amount of $40,000.00.

32The principles that govern the award of interim costs were described by I.F. Leach, J. in Baker v. Baker, 2023 ONSC 4082, at paras. 65-68. A judge’s discretion to award interim costs is to be exercised in a manner that furthers “… the primary objective of fairness by levelling the playing field between the parties”: Ma v. Chao, 2016 ONSC 585, para. 4.

33In making this claim, the Applicant relies upon a letter dated July 24, 2023 from Cohen Hamilton which states that it will cost between $26,000 and $36,000 plus disbursements to complete the income report (work completed but not billed, to review the Marmer Penner valuation report, to complete the valuation report and other matters.

34The onus is on the Applicant to demonstrate that the expense is necessary and reasonable. While I am satisfied that such expense meets that standard, I find that the Applicant has not discharged her onus of establishing that she is incapable of funding the requested amount given that she has savings of $124,518 in a savings account and $44,311 in a TFSA account. Further, an examination of the parties’ respective Financial Statements does not show a significant imbalance in their financial resources. Accordingly, the Applicant’s motion for interim disbursements is dismissed.

Insurance

35The Applicant seeks a temporary Order that the Respondent shall obtain and maintain life insurance in the amount of no less than $1.6 million dollars naming the Applicant as irrevocable beneficiary and in trust for the children to secure his child and spousal support obligations.

36The Respondent has a policy of life insurance through his employer in an amount that is one times his salary. The Respondent states that he cannot afford to obtain a new life insurance policy given his current expenses. There is no evidence of the Respondent’s insurability and the cost of such policy. That is sufficient reason on an interim motion to decline to make such order: Greenwood v. Falotico, 2023 ONSC 2744, para. 30. Further, this issue was not argued at any length and should be deferred to trial.

37Similarly, the Applicant seeks a temporary Order that the Respondent shall obtain and maintain medical, dental, and extended health care coverage for the Applicant and the children for so long as the Respondent has a support obligation to the Applicant and/or the children. Similarly, little argument and no cases were provided with respect to this claim. Given that the parties’ net disposable income is being shared on a 50-50 interim basis, the force behind the Applicant’s claim that the Respondent should be paying for such health care coverage is weak.

38The Applicant’s claims for temporary insurance coverages are dismissed.

Order

39Temporary order to go as follows:

(1) Commencing July 1, 2023, the Respondent, Guy Higgins, shall pay the Applicant, Marlene Bader-Higgins, $10,076 per month in periodic spousal support and $1,464 per month in periodic child support for the children of the marriage, Alexander Liam John Higgins born December 21, 2000 and Benjamin Stephen Charles Higgins, born January 17, 2003, with payments to be made on the first of each month based on his annual income of $343,000 and an imputed income to the Applicant of $30,000. (2) Commencing July 1, 2023, each party shall, after the application of any RESP withdrawals and/or grants/scholarships, contribute 33.33% towards the section 7 special and extraordinary expenses, including but not limited to their post-secondary educational costs and related expenses (such as their tuition, textbooks, residence, meal plans, transportation), for the children of the marriage, Alexander Liam John Higgins born December 21, 2000 and Benjamin Stephen Charles Higgins, born January 17, 2003.

40The parties are encouraged to settle the issue of costs. If they cannot do so, then costs submissions shall be delivered by January 15, 2024. Responding costs submissions shall be delivered by January 22, 2024. All costs submissions shall be no more than three pages in length excluding offers to settle and a bill of costs.