Court File and Parties

COURT FILE NO.: FC-21-468 DATE: 2024/06/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JONATHAN EIDSE, Applicant AND: KRISTIN EIDSE, Respondent

BEFORE: Justice I.R. Smith

COUNSEL: Glenda McLeod, Counsel for the Applicant Brian Kelly, Counsel for the Respondent

HEARD: May 28, 2024

Ruling on Motions

Introduction

[1] The parties bring competing interim motions.

[2] The applicant moves for interim child support and interim spousal support both calculated on the basis of his annual income of $11,602, derived from CPP disability benefits, and the respondent’s annual income of $122,698, which she derives from her employment as a social worker. The applicant also moves for the sharing of s. 7 expenses on a 30/70 basis.

[3] The respondent moves for an order imputing income to the applicant and argues that child and spousal support be calculated on the basis of that imputed income. The respondent also seeks an order respecting disclosure to which request the applicant consents.

[4] For the reasons which follow, I have concluded that income should not be imputed to the applicant at this time and that child and spousal support should be calculated on the basis of the parties’ reported annual incomes.

Background

[5] The parties were married on February 7, 2004, and separated on September 30, 2016. They have two children. Since separation, for the most part, parenting time has been divided on a 2-2-5-5 schedule. The respondent is employed as a social worker. The applicant is not now employed, although he has training as an accountant. The applicant suffered a series of concussions and has, since 2011, been receiving CPP disability benefits. He has no other income.

[6] The applicant says that his condition has worsened over time and that he is not able to work. He describes his brain injury as permanent. He has produced medical records from two neurologists, his family physician, a gastroenterologist, and a cardiologist. There is evidence that he is being treated for post-concussion symptoms and that he suffers from light and sound sensitivity, tinnitus, dizziness, headaches, mood disturbances, rumination syndrome and some cognitive decline.

[7] Throughout these proceedings the respondent has sought full disclosure of the applicant’s medical records. Her position on this motion is that the evidence does not show that the applicant is unable to work. She points out (and the applicant conceded during argument) that there is no evidence of an opinion from a physician positively asserting that the applicant is unable to work, or that his disability is permanent. Indeed, on October 7, 2022, when this matter was before Madsen J. (as she then was) for a case conference, she ordered as follows:

[That the applicant] shall … request a letter from his family physician setting out, at a minimum: how long he has been a patient; how frequently and approximately how many times in total he has attended with the physician; a summary of the medical conditions he has; any treatment that has been recommended to him; the physician’s impression of whether he has been compliant with that treatment; and whether, in the view of the physician, the applicant would be able to maintain employment. The letter should be provided to the respondent upon receipt [emphasis added].

[8] While the applicant did request such a letter from his family doctor, Dr. Alison Yeung, her response was not especially helpful. Dr. Yeung wrote as follows (on December 15, 2022):

I think my previously sent notes outline my impressions and treatment plans to the best of my ability. It would be very difficult for me to make a judgment call about Jonathan’s ability to obtain gainful employment because the majority of his symptoms are subjective in nature. I am not with him in his day to day life, and therefore it is difficult for me to assess his ability to work. Some of his symptoms have also tended to fluctuate over time depending on medications he may be on at a certain point in time, situational stressors, etc.

I do not feel comfortable assessing whether he is able to work in any occupation.

As I have previously attached, presently he has begun to see a concussion specialist (neurologist) in Hamilton to see if he may find more improvement in his ongoing symptoms [emphasis added].

[9] Thereafter, the applicant commissioned an occupational therapy assessment, which was carried out by an occupational therapist in July 2023 and reported upon in a report dated August 8, 2023. The therapist, Maike McCaskell, reviewed the applicant’s medical history and met with the applicant at his home where she carried out a “functional assessment.”

[10] Ms. McCaskell’s most important conclusion is set out near the end of her report where she provides her response to the task set for her: “Comment on Examinee’s ability to work and specifically his ability to both obtain and maintain employment.” That response reads in part as follows:

It is this therapist’s clinical opinion that at present Mr. Eidse is not competitively employable in any capacity or work environment inclusive of home-based work activities. His large number of diagnoses and their associated sequalae and symptoms limit his ability to even function independently with respect to the performance of personal care activities, homemaking housekeeping activities, instrumental activities of daily living, social activities, etc. An individual who is unable to participate at a functional level with respect to these activities would be incapable of either obtaining or maintaining employment. Further, Mr. Eidse has been identified as permanently disabled with respect to work via CPP and awarded a disability pension in 2012. In order to obtain such a pension, disabilities must be severe and prolonged [emphasis added].

[11] The applicant takes the position that this evidence, combined with all the other medical evidence, establishes that he is unable to work, that he is unable to earn more than the $11,602 he currently receives from CPP, and that his claim of need – indeed, his claim of poverty – is well-founded.

[12] The respondent makes a multitude of criticisms of the report from Ms. McCaskell. Among those criticisms, she argues that there is no evidence of permanent disability and that Ms. McCaskell’s opinion goes beyond the scope of her expertise by making a diagnosis of permanent disability which no doctor has made. Moreover, the respondent submits, if Dr. Yeung is not in a position to offer a medical opinion about whether the applicant is unable to work, then neither is an occupational therapist.

[13] The respondent further submits that there is evidence that the respondent has been engaged in physical activity – including especially mountain-biking – that suggests he has no disability, and that the respondent has repeatedly failed to be compliant with the treatment recommended by physicians. The applicant swears that these assertions are false.

[14] The applicant points out that all of the respondent’s criticisms of the medical evidence provided by the applicant are the criticisms of a lay person. The respondent has not yet led any expert evidence of her own about the applicant’s condition. In the absence of any such evidence, so it is argued, the court should rely on the evidence marshalled by the applicant.

[15] At the case conference in this matter before Madsen J. on October 7, 2022, she made a consent order that, on a temporary without prejudice basis, child support should be paid by the respondent to the applicant at a rate of $1,268 per month. That figure is achieved by offsetting the respondent’s guideline amount of $1,727 per month against the applicant’s guideline amount of $459 per month. Although not addressed in Justice Madsen’s endorsement, the parties are agreed that the guideline amount used for the applicant was based on an imputed income of $30,000 and was agreed to by the parties at that case conference.

Positions of the parties

[16] As I have said, the applicant argues that child and spousal support should be paid based on the respective incomes of the parties as set out in paragraph 2 of these reasons given that the evidence supports his claim to be unable to work.

[17] The respondent’s position narrowed somewhat during argument. Although she submitted in her factum that an annual income of $52,000 should be imputed to the applicant, before me that position was modified. Her counsel submitted in argument that the fairest resolution of this matter on an interim basis would be to use the income imputed to the applicant on consent by Justice Madsen, $30,000, as a means of calculating interim spousal support pending trial. The respondent takes this position without prejudice to her right to argue at trial both that a higher annual income should be imputed to the applicant and that he should be entitled to no spousal support at all.

Discussion

Should income be imputed to the applicant?

[18] The key question is whether an annual income should be imputed to the applicant at this interim stage. Once this question is answered, the calculation of support to be paid by the applicant is reasonably straightforward.

[19] As is often the case at the interim stage of family litigation, the record is comprised of affidavits which contradict each other, and upon which there has been no cross-examination. Further, the body of medical evidence is incomplete. The applicant awaits certain medical information and opinions, and the respondent has – understandably – yet to file any responding medical evidence. On this incomplete and untested record, the applicant asserts that he is permanently disabled, and the respondent asserts that the applicant should be able to get a job and earn an income greater than the disability payments he receives now from CPP.

[20] I do not think this is an appropriate record upon which to make a determination about imputing income (see Chaudhry v. Meh, 2019 ONSC 7065, at para. 22; Gafanha v. Gafanha, 2022 ONSC 1613, at para. 17). Obviously, it will be for the trial judge to assess a complete record, tested by cross-examination, and make assessments of credibility and reliability before finding facts and drawing final legal conclusions. At this interim stage, my ability to assess credibility and reliability is limited, and I am similarly restricted in my ability to make findings of fact.

[21] It is no doubt for these reasons that so many of the cases warn against imputing income at the interim stage. In this respect, in Lamb v. Watt, 2017 ONSC 5838, Justice McDermot wrote as follows (at para. 34):

The issue of imputation of the income to the applicant is an issue for trial. There are serious credibility issues as to whether or not the applicant has maximized his income. An interim motion is not the place to impute income or to determine issues of intentional underemployment; the place to address this is at trial. Again, the evidence on income must be taken at face value with contested evidence on imputation of income to be left to the trial judge.

See also MacIntyre-McAlear v. McAlear, 2018 ONSC 1395, at para. 55; Vermeire v. Bates, 2022 ONSC 1278, at para. 14.

[22] Moreover, the onus to provide an evidentiary basis for a finding that income should be imputed is on the party seeking to have income imputed (Homsi v. Zaya, 2009 ONCA 322, at para. 28). In this case, the respondent bears this burden. In my view, on this record, she has not satisfied me that the applicant is able to work. While I accept that the applicant has made various criticisms of the medical evidence tendered by the applicant, and that those criticisms may well be accepted by the trial judge, the weight of the untested evidence before me is that the applicant suffers from a variety of symptoms – most of them apparently related to concussions he has sustained – which would make it difficult for anyone to work. Moreover, the applicant’s assertion that he is unable to work is corroborated by the report of Ms. McCaskell, whose very professional responsibility as an occupational therapist is to assess and ameliorate the physical limitations of her patients even if, as the respondent submits, she cannot diagnose medical conditions. In addition, to some limited extent, the applicant’s evidence is corroborated by the fact that he has been granted a permanent disability pension by CPP even if, as the respondent suggests, the applicant has not yet been reassessed by CPP as it seems he should have been.

[23] I accept, of course, that there will be various lines of cross-examination open to the respondent at trial if Ms. McCaskell is called to testify, and that the applicant’s other medical evidence will also be open to challenge, including by the respondent’s own expert should she engage one, as she says that she will. The evidence may establish that the applicant is able to go mountain-biking and participate in other physical activity, as the respondent says he can. It may be that the trial judge will conclude, as the respondent suggests now, that the applicant is a malingerer who should be able to earn significantly more that he is earning now. However, at this stage, the applicant has not laid an evidentiary foundation that allows me to conclude either that the applicant is able to work, or – if he could work – how much he could be earning.

[24] While I accept that the respondent’s proposal that a $30,000 annual income be attributed to the applicant as a matter of fairness at this interim stage was a submission made in the spirit of compromise, that compromise is rejected by the applicant. The figure of $30,000 does not rest on any evidentiary foundation and was not arrived at on the basis of any reasoned analysis. In the absence of agreement or a justification for that amount, I am not in a position to impute that annual income to the applicant (see MacIntyre-McAlear v. McAlear, supra, at para. 37).

[25] In all these circumstances, at this interim stage, I decline to impute income to the applicant. Instead, the calculation of support payable will be based on the applicant’s reported annual income of $11,602, and the respondent’s reported annual income of $122,698.

Child Support

[26] On the basis of these annual incomes, the table amount of child support payable by the respondent to the applicant, pursuant to the Federal Child Support Guidelines, SOR/97-175, as am., is $1,749 per month.

[27] While the respondent says that I should not revisit the child support order made by Justice Madsen earlier in these proceedings, I note that her order was made on the basis of an agreement between the parties and was expressly made without prejudice to the rights of either party to return to the issue. Accordingly, the respondent will pay child support to the applicant in the amount of $1,749 per month on an interim basis, retroactive to November 1, 2023 (just prior to the date upon which the applicant’s motion was launched, November 13, 2023).

Spousal Support

[28] While the respondent reserves the right to argue at trial that the applicant should not receive any spousal support, her counsel conceded in argument that she was not taking that position at this interim stage. Indeed, as noted above, the respondent proposed paying spousal support on the basis of a compromise imputed income of $30,000. Having rejected that compromise proposal, the applicant’s entitlement to spousal support must be assessed based on the reported incomes of the parties.

[29] At the interim stage, the focus is on the need of the payee and the ability of the payor to pay. Moreover, recognition is given to the fact that the court will normally have – as it does in the present case – insufficient information to conduct the in-depth analysis that will be carried out at trial for a final determination of spousal support owing, if any. Instead, pending trial, the motion judge aims to achieve a kind of “rough justice” that will suffice until trial (Drouillard v. Drouillard, 2012 ONSC 4495, at para. 7).

[30] In this case, I have limited information about the circumstances of the parties, and what little I do have (both current and historical) is the subject of dispute between them. They do not even agree on the calculation of the respondent’s net monthly income. The applicant says that he ought to be entitled to spousal support from the respondent at the high range of the Spousal Support Advisory Guidelines, which his Divorce-Mate “with child support” calculation sets at $2,179 per month. The respondent says that she cannot pay spousal support at that rate and that the applicant does not need that much spousal support in any event given his modest expenses and given that he is debt free. Given the respondent’s proposal (described at paragraphs 17 and 28, above), however, it is clear that she can afford some level of spousal support. The low range monthly amount is calculated by the applicant at $1,450 and the mid-range monthly amount is $1,840.

[31] In the face of the disputed nature of the evidence I do have, the absence of a complete and tested record and a full analysis – and doing “rough justice” between the parties pending trial that recognizes both the applicant’s need and the respondent’s ability to pay – I fix the spousal support payable by the respondent to the applicant at $1,700.00 per month, again effective November 1, 2023.

Section 7 expenses

[32] As noted above, the applicant proposes that section 7 expenses be divided between the parties on a 30/70 basis. The respondent’s position is not materially different. Accordingly, effective November 1, 2023, the respondent will be responsible for 70% of section 7 expenses and the applicant will be responsible for 30% of those expenses.

Disclosure

[33] As noted at the outset of these reasons, the applicant consents to a disclosure order requested by the applicant.

[34] Accordingly, the applicant will provide the documents and/or information listed in Schedule A to the respondent’s notice of motion dated December 6, 2023, within 30 days of the release of this endorsement.

Settlement/trial management conference

[35] At the conclusion of the hearing of this motion, I ordered that the parties attend a settlement conference on November 4, 2024, at 11:00 a.m. I have since had occasion to read the May 19, 2023, endorsement of MacNeil J., who ordered that the next conference in this matter should be a combined settlement and trial management conference. Accordingly, the conference to be held on November 4, 2024, will be a combined settlement/trial management conference.

Conclusion and costs

[36] The applicant’s motion is allowed to the extent described above. The respondent’s motion is dismissed except to the extent of the disclosure order I have made.

[37] The applicant may serve and file brief written submissions respecting costs within 7 days of the release of this endorsement. The respondent may serve and file brief responding costs submissions within 4 days of the service of the respondent’s submissions. The applicant may serve and file reply submissions, if any, within 3 days of the service of the respondent’s submissions. All submissions are to be forwarded by email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca.

I.R. Smith J. Date: June 14, 2024