Court File and Parties
COURT FILE NO.: FS-18-251 DATE: 2024 08 01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saba Syed, Applicant AND: Nusrat Muhammad, Respondent
BEFORE: M.T. Doi J.
COUNSEL: James Milne, for the Applicant Nusrat Muhammad, self-represented Respondent
HEARD: May 27, 28 and 29, 2024
REASONS FOR JUDGMENT
Overview
[1] The Applicant mother seeks various relief following the breakdown of her marriage with the Respondent father. The parties have two (2) children of the marriage, being A.M. (born in 2001) and S.M. (born in 2004). The issues to be determined include ongoing and retroactive child and spousal support, equalization and prejudgment interest, the disposition of certain RESP funds, and other property-related matters. [1]
[2] The father opposes the mother’s claims by arguing that the parties’ marriage certificate is a domestic contract that invalidates the various claims in this proceeding. As set out below, I am not persuaded by the father’s position.
[3] For the reasons that follow, I am satisfied that the mother should have judgment against the father in respect of her support, property, and corollary relief claims, respectively.
Background
[4] The parties initially met at the University of Karachi in Pakistan where they were both pharmacy students. The mother graduated in 1993 as the gold medalist in her class and trained at a hospital in Karachi before pursuing work in her field at major pharmaceutical companies in Pakistan.
[5] On May 14, 1999, the parties married in Karachi. Within months, the father moved to Canada to pursue his career as a pharmacist. For about 10 months, the mother stayed in Karachi and lived with her in-laws until the father sponsored her immigration. After reuniting with the father in Canada, she became pregnant. The parties assumed traditional family roles. The mother worked as a homemaker and after A.M.’s birth in 2001 became the child’s primary caregiver. The father worked as a pharmacist and financially supported the family. When S.M. was born in 2004, the mother became the primary caregiver to both children.
[6] After almost 19 years of marriage, the parties separated on April 22, 2018. Both children continued to primarily reside with the mother after separation.
[7] On October 1, 2018, the mother brought this application.
[8] On November 17, 2018, Kumaranayake J. granted a consent order for the father to pay temporary monthly child support of $2,072.00 (i.e., on $149,600.00 in annual income), temporary monthly spousal support of $2,000.00, and temporary s.7 expenses on an 82:18 ratio (i.e., to reflect the mother’s then-income of $5,556.00 per year), with payments starting on January 1, 2019. The payments were made on a temporary without prejudice basis and subject to reconciliation at trial.
[9] The children are now full-time post-secondary students. A.M. is 22-years old and pursuing a business degree at Toronto Metropolitan University. SM is a 19-year old engineering student at the University of Guelph. At various times, both have been full-time co-op students in cooperative work placements obtained through their respective programs of study.
The Father Has Not Proven Foreign Law
[10] I do not accept the father’s position that the parties’ marriage certificate is a domestic contract that somehow invalidates the mother’s claims in this case by operation of either Pakistani and/or Islamic law.
[11] The father testified that the parties’ marriage certificate, as notarized on May 25, 1999 in Pakistan, is a form of religious contract that disentitles the mother from raising her various support and property claims. He also asserted that she cannot claim any child or spousal support, or any equalization, due to the operation of Pakistani or Islamic law that binds the parties (i.e., by virtue of their Muslim faith) and is said to remove any such entitlements or claims. Respectfully, I am not persuaded by the father’s evidence or submissions on this point.
[12] I have serious reservations with the father’s assertion that the Pakistani marriage certificate should extinguish the mother’s claims in this litigation. On its face, the certificate does not serve any such purpose whatsoever. [2] It provides for a dower of 25,000 Rupees (Rp) that both sides accept was paid around the time of the marriage. Beyond this, the certificate has no other provisions beyond recording the marriage details. It does not describe the rights of the parties on separation or otherwise waive any claims for relief, either explicitly or implicitly. In the circumstances, I see no basis to find that it should somehow invalidate any of the mother’s claims in this proceeding.
[13] In any event, as the father led no expert evidence about Pakistani or Islamic law, there is no basis for the court to accept his position that the Pakistani marriage certificate should extinguish the mother’s claims in this case by operation of Pakistani or Islamic law. Foreign law is factual matter that must be proven by a qualified expert witness: Hunt v. T&N plc, [1993] 4 SCR 289 at 308; Lind v. Sweden, [1987] OJ No 871 (CA) at para 38, leave to appeal denied [1987] SCCA No 368; Das v. George Weston Ltd., 2017 ONSC 4129 at para 200, affirmed 2018 ONCA 1053, leave to appeal denied 2019 SCC 73201; A.S.1 v. A.A.S., 2018 ONSC 5784 at para 25; Kalra v. Bhatia, 2024 ONSC 3565 at para 40. The court cannot independently research the substance of foreign law or otherwise take judicial notice of it: Das at para 200; Gonos v. Hadzipetros, 2017 ONSC 6773 at para 23; A.S.1 at para 26; A.S.1 at paras 25-26. Absent any expert evidence to prove the foreign law that is said to apply by operation of the marriage certificate, I am not in a position to analyse the purported effect of the certificate under foreign law that the father claims should somehow invalidate or displace the mother’s claims.
[14] Accordingly, I decline to extinguish the mother’s claims based on foreign law.
Child Support
[15] Apart from objecting to the mother’s claims based on foreign law, the father otherwise largely accepts her claims for retroactive and prospective child support in this litigation.
[16] Child support is the right of a child: D.B.S. v. S.R.G., 2006 SCC 37 at para 38. The purpose and promise of child support is to protect the financial entitlements due to children by their parents: Michel v. Graydon, 2020 SCC 24 at para 38. The right to child support survives the breakdown of a child’s parents’ marriage and should, as much as possible, give the child the same standard of living they enjoyed when their parents were together: D.B.S. at para 38. The specific amount of child support owed will vary depending on the payor parent’s income: Ibid.
[17] Subsection 5.1(1) of the Divorce Act provides the court’s jurisdiction to make an order for child support. The entitlement to child support for a child over the age of majority hinges on a finding that the child remains under the charge of a parent and is unable to withdraw from the parent’s charge or to obtain the necessaries of life: ss. 2(1) of the Divorce Act. The amount of a child support order for children under the age of majority is set out in applicable tables according to the number of children to whom the order relates and the income of the spouse against whom the order is sought: Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) at ss. 3(1). A spouse’s income for child support purposes is determined by using the sources of income under the “Total income” heading in the CRA T1 General form, as adjusted by Schedule III: s. 16 of the Guidelines. Should the court find that considering a spouse’s annual income under s.16 would not be the fairest determination of that income, it may consider 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 over those years: ss. 17(1) of the Guidelines. An adult child who is pursuing educational studies, taking a brief hiatus from those studies, or in a modest transition period after completing an education program may be a dependent child who is entitled to child support: Pennington v. Pennington, 2021 ONSC 7371 at para 24.
[18] The mother seeks retroactive child support from April 22, 2018, the date of separation. As she brought this application on October 1, 2018, I find that her retroactive child support claim does not exceed 3 years from when she gave the father formal notice of her claim. Accordingly, I find that it would not be inappropriate to award retroactive child support as claimed: D.B.S. at para 123.
[19] Both parties agree that child support should be payable when the children are attending a full-time educational program and are reliant on their parents: Pennington at para 24.
[20] As noted earlier, the father has been paying the mother temporary without prejudice child support of $2,072.00 per month (i.e., on $149,600.00 in annual income) from January 1, 2019 to date pursuant to Kumaranayake J.’s consent order dated November 27, 2018. The parties agree that no child support arrears are owed. In addition, the parties agree on the following income and retroactive child support payment figures from April 22, 2018 to April 30, 2024, as set out in the following table:
Table of Retroactive Child Support
| Year | Months Payable | Father’s Income | Number of Children | Monthly Table Amount | Total Payable for Period | Total Support Paid (Period) | Balance Outstanding |
|---|---|---|---|---|---|---|---|
| 2018 | 4 | $ 153,825.00 | 2 | $ 2,123.00 | $ 8,492.00 | $8,492.00 | |
| 2019 | 12 | $ 204,298.00 | 2 | $ 2,729.00 | $ 32,748.00 | $ 24,864.00 | $7,884.00 |
| 2020 | 12 | $ 171,602.00 | 2 | $ 2,336.00 | $ 28,032.00 | $ 24,864.00 | $3,168.00 |
| 2021 | 12 | $ 182,054.00 | 2 | $ 2,462.00 | $ 29,544.00 | $ 24,864.00 | $4,680.00 |
| 2022 | 4 | $ 171,814.01 | 2 | $ 2,339.00 | $ 9,356.00 | $ 8,288.00 | $1,068.00 |
| 2022 | 8 | $ 171,814.01 | 1 | $ 1,456.00 | $ 11,648.00 | $ 16,576.00 | -$4,928.00 |
| 2023 | 8 | $ 175,293.00 | 1 | $ 1,481.00 | $ 11,848.00 | $ 16,576.00 | -$4,728.00 |
| 2023 | 4 | $ 175,293.00 | 2 | $ 2,381.00 | $ 9,524.00 | $ 8,288.00 | $1,236.00 |
| 2024 | 4 | $ 175,293.00 | 2 | $ 2,381.00 | $ 9,524.00 | $ 8,288.00 | $1,236.00 |
| TOTAL | $18,108.00 |
[21] The table of retroactive child support arrears accounts for adjustments in 2022 and 2023 when both parties agree that child support was not payable for A.M. over a 16-month period while he was employed as a full-time co-op student. For clarity, this results in a downward adjustment of child support in the amounts of $4,928.00 for 2022 and $4,728.00 for 2023, respectively, with a corresponding increase in spousal support for these periods, as further discussed below.
[22] Based on this, I find that the total amount of retroactive child support payable by the father to the mother, after appropriate adjustments, is $18,108.00 as of April 30, 2024.
[23] From the record, I am satisfied that it is fair and reasonable to apply $175,293.00 in annual income to the father for 2024 (i.e., based on his 2023 income of $175,293.00). It follows that his monthly child support payment under the Guidelines is $1,481.00 per month for one (1) child and $2,381.00 per month for two (2) children.
[24] The parties agreed that A.M. was continuing to attend university as a full-time student until July 31, 2024 when he was to have graduated and started full-time work. Based on this, both sides agreed that it would be just and appropriate to terminate the father’s child support payments for A.M. as of July 31, 2024. In the circumstances, I am satisfied that a consent order should be granted to terminate the father’s child support obligation for A.M. as of July 31, 2024.
[25] The parties agree that S.M. is attending a full-time paid co-op placement that started on May 15, 2024 and will end by December 31, 2024, after which he will resume full-time university studies. S.M. plans to finish his program in December 2027. In the circumstances, and given the parties agreement to fix an end-date to terminate S.M.’s child support payments, I find that the father’s child support payments for S.M. should end as of December 31, 2027.
[26] Based on the foregoing, I find that the father should pay child support for one (1) child (i.e., being A.M.) from May 1, 2024 to July 31, 2024, that no child support should be payable from August 1, 2024 to December 31, 2024 (i.e., when neither child is eligible), and that child support for one (1) child (i.e., being S.M.) should be paid from January 1, 2025 until December 31, 2027.
Apportionment of Section 7 Expenses
[27] I find that any s.7 expenses should be apportioned based on the parties’ respective Line 150 income in their 2023 Notices of Assessment from CRA, as the parties themselves have agreed.
[28] In general, the parties are to share the children’s s.7 expenses in proportion to their respective incomes, subject to deducting contribution(s) by the child: ss. 7(2) of the Guidelines.
[29] There are no s.7 expenses owing at this time. The parties are using RESP funds to pay for the children’s post-secondary education expenses.
[30] For the purpose of determining the parties’ s.7 obligations, I estimate that the mother’s annual income will approach $63,648.00 (i.e., $25.50 x 48 hrs/week x 50 weeks + 4% vacation), and find that the father’s annual income is about $175,293.00 (i.e., based on his most recent tax records). Applying these income figures, I find that the mother and the father should share any future s.7 expenses for A.M. and S.M. (i.e., less any reasonable contributions by the children) on a 27:73 ratio so long as either child is a dependent child of the marriage entitled to child support: Pennington at para 24.
Spousal Support
[31] As set out below, I am satisfied that the mother has a compensatory and non-compensatory entitlement to spousal support over an indefinite duration.
[32] An entitlement to spousal support must be established before the court is to consider the quantum and duration of any spousal support award to be paid: Bracklow v. Bracklow, [1999] 1 SCR 420 at para 49. There are three (3) discrete bases for awarding spousal support: contractual, compensatory and non-compensatory: Bracklow at para 37. A contractual basis does not arise in this case as the parties had no agreement for paying spousal support. An entitlement to spousal support may arise on compensatory and non-compensatory grounds, as may be appropriate.
[33] In deciding a party’s entitlement to spousal support, the court is to consider the following objectives of spousal support, with no particular objective being paramount:
a. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c. Relieve any economic hardship of the spouses arising from the breakdown of the marriage, and d. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
ss. 15.2(6) of the Divorce Act; Moge v. Moge, [1991] 3 SCR 813 at 852.
[34] An entitlement to spousal support is made out where any of the ss. 15.2(6) objectives are established: Bracklow at para 49.
[35] In making an order for spousal support, the Court is to take into consideration the condition, means, needs and other circumstances of each spouse, including:
(a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to the support of either spouse.
ss. 15.2(4) of the Divorce Act.
[36] In addition, an order for spousal support should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
ss. 15.2(6) of the Divorce Act.
[37] Given that marriage is a socio-economic partnership, an order for spousal support should compensate for losses that the marriage or its breakdown caused that would not have been suffered otherwise: Bracklow at paras 41 and 49. Compensatory claims are based on a recipient’s economic loss or disadvantage from the roles adopted during the marriage or where the recipient confers an economic benefit on the payor without adequate compensation. Common compensatory markers include being home with children full-time, having primary care of children after separation, and moving forward the payor spouse’s career: Rogerson and Thompson, Spousal Support Advisory Guidelines: Revised User’s Guide (Ottawa: Department of Justice Canada, 2016) (“SSAG”) at pp. 5-6. Even if compensatory loss is not established, a marital breakup may cause economic hardship in a larger non-compensatory sense to implicate non-compensatory support: Bracklow at para 41, citing C.J. Rogerson, “Spousal Support After Moge” (1996-97), 14 CFLQ 281 at 371-72. This “mutual obligation” view of marriage implicates certain social policy values:
First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”. Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls. [Emphasis added]
Bracklow at para 31.
[38] The court must look at all relevant factors in light of the objectives of spousal support and arrive at a finding that equitably alleviates the adverse consequences of the breakdown of the parties’ marriage: Bracklow at para 36.
[39] Pursuant to the “Rule of 65”, where the length of cohabitation in years plus the recipient’s age at the date of separation equals or exceeds 65, indefinite spousal support may be appropriate: SSAG at ss. 3.3.3 and 7.5.3; Climans v. Latner, 2020 ONCA 554 at para 3; Politis v. Politis, 2021 ONCA 541 at paras 40-43.
[40] The undisputed evidence is that the mother left a promising pharmaceutical career in Pakistan to join the father in Canada and become a homemaker for almost 19 years at his insistence. She graduated as the gold medalist in her pharmacy class at the University of Karachi in 1993 and trained in a hospital before working at leading pharmaceutical companies in Pakistan. Shortly after their marriage, she immigrated to Canada where he had relocated from Pakistan to pursue his own career as a pharmacist. When she joined him in Canada, she had worked for over six years in Pakistan’s pharmaceutical industry and had earned positive references from various employers. At the start of the marriage, her pharmacy career potential may well have been greater than his.
[41] Within weeks of arriving in Canada in 2000, the mother became pregnant. The parties then took on traditional family roles. The mother became a homemaker and primarily cared for A.M., the first child. After S.M. was born a few years later, she continued as a homemaker with primary childcare responsibility. Although she took some steps to be accredited as a pharmacist in Canada, she could not become accredited as the father would not take responsibility for the children or the household and effectively left her without adequate or meaningful time to improve her limited English-language skills or study for the certification examinations to be accredited as a pharmacist. He also refused to pay the tuition for her to attend an academic bridging program that prepares internationally-trained pharmacists to meet Canadian entry-to-practice requirements and develop professional skills. He instead proposed that she self-study for the examinations during the day when he was at work. Given her childcare responsibilities, his proposal was simply impracticable.
[42] Over time, the mother abandoned any plans to become a pharmacist in Canada and became interested in pursuing an early childhood education (“ECE”) career. Among other things, the ECE accreditation fees were more affordable in comparison to the pharmacy accreditation fees. But after discussing this career path with the father, she also abandoned this idea after he steadfastly refused to help care for the children or perform household chores (i.e., beyond buying groceries) when he was home from work. His own evidence clearly revealed his unwillingness to have her study or otherwise work on non-family matters that would, in any way, disrupt their traditional family roles, including their childcare and homemaking responsibilities. Given his intransigence on this, I am satisfied that it was practically impossible for the mother to pursue her own career aspirations during the marriage beyond performing some volunteer work at a local gym where she could access free childcare while volunteering. To avoid conflicts at home, the mother acceded to the preferences of the father whose income gave the family a comfortable lifestyle.
[43] I am satisfied that the mother has a strong compensatory and needs-based claim for spousal support. The parties were economically interdependent in a marriage with traditional roles. The mother made career sacrifices and lost professional and economic opportunities by staying at home with the children that allowed the father to focus on his own career. Both worked hard to establish themselves as first-generation Canadians. The mother was supportive of the father over the course of the marriage and worked at home to further his career endeavours, In turn, he gave her funds to pay for household expenses and her own needs. Based on this, she developed a dependence on him as they shared a relatively modest yet progressively better standard of living. Among other things, they acquired an investment property and the matrimonial home. They also travelled to Pakistan every couple of years. Importantly, the father progressed his career as a pharmacist and continued to have increases to his income each year, even after separation. In contrast, the mother saw a marked decrease in her post-separation standard of living until the father eventually began to pay temporary child and spousal support. I am satisfied that the mother suffered economic disadvantage from the breakdown of the marriage that should be equitably shared: Roseneck v. Gowling, 2002 ONCA 45128 at para 61. Given the length of the marriage that featured a close economic union, I am satisfied that the mother has a presumptive claim to an equal standard of living upon the dissolution of the marriage: Moge at 870.
[44] Due to her significant post-separation lifestyle changes and isolation, the mother became depressed after the marriage ended. She attended free counselling sessions at Catholic Family Services but could not afford to continue therapy after exhausting the free sessions.
[45] Shortly after separating on April 22, 2018, the mother took the initiative in July 2018 by attending Costi Immigrant Services, a not-for-profit community agency that provided employment workshops and services. In early 2019, she sought an evaluation from International Credential Assessment Service of Canada (“ICAS”) and received an ICAS assessment of her academic and professional credentials in or around November 2019. She then made timely and genuine efforts to become independent by retraining to become an ECE worker through a community college program. She excelled in the program and earned exceptional grades. After graduating, she immediately found full-time ECE work and has been gainfully employed ever since.
[46] In my view, the mother reasonably obtained ECE retraining and employment and thereby gained a measure of independence and self-sufficiency consistent with her skills and means. She had a limited number of neighbourhood friends where she lived, especially early in the marriage, and the father insisted that she perform childcare and household duties that left her little if any free time. All of this impeded her ability to learn English, integrate into Canadian society, and develop the social and communication skills required to pursue a professional career. Her limited means left her unable to afford the tuition for a bridging program to become an accredited pharmacist. In the circumstances, I accept that the mother could not realistically obtain the required accreditation to become a pharmacist in Canada.
[47] I am satisfied that the mother should receive spousal support over an indefinite duration. The parties married on May 14, 1999 and separated on April 22, 2018 after 18.95 years of marriage. Born January 22, 1972, the mother was 46.28 years of age at separation. These dates are undisputed. Accordingly, I am satisfied that the “Rule of 65” is met in this case (i.e., 18.95 + 46.28 = 65.23) and supports the presumption that the mother should have spousal support for an indefinite period: ss. 7.5.3 of the SSAGs. Although not binding, the SSAGs should not be lightly departed from: Slongo v. Slongo, 2017 ONCA 272 at para 105; Politis at para 28.
[48] The mother seeks retroactive spousal support from April 22, 2018, which is the date of separation. She pleaded a claim for retroactive spousal support in her application that she brought on October 1, 2018. It follows that her claim for retroactive spousal support does not exceed three years from when she gave formal notice of her claim. Accordingly, in the circumstances of this case, I am satisfied that she should receive retroactive spousal support: D.B.S. at para 123.
[49] I am satisfied that the mother should benefit from post-separation increases in the father’s income for the purpose of determining spousal support. Increases to the payor spouse’s income do not automatically entitle the recipient to spousal support at the higher level. Rather, the court exercises wide discretion in deciding spousal support by considering the circumstances of the parties including the nature of their relationship, whether it was a long-term one, the basis and strength of the recipient spouse’s entitlement to support, the nature of the recipient spouse’s sacrifices during the marriage for the family’s sake (i.e., including significant career sacrifices), resulting benefits to the payor spouse, the recipient spouse’s contributions linked to the payor spouse’s post-separation success and ability to achieve higher earnings, the integration of the parties’ personal and financial affairs during the marriage, other intervening events affecting the payor spouse’s post-separation career trajectory; and any failure by the recipient spouse to take appropriate steps towards self-sufficiency: Thompson v. Thompson, 2013 ONSC 5500 at para 103; Walsh v. Walsh, 2006 ONSC 20857 at para 44; Hariram v. Hariram at para 17; Outaleb v. Waithe, 2021 ONSC 4330 at para 97.
[50] I see no principled basis for disentitling the mother from sharing in the father’s increased income after separation. She has a strong compensatory claim for spousal support that arose from a long-term marriage of about 19 years. The mother clearly sacrificed her own professional career for the benefit of the husband and the children. She primarily cared for both children and managed the family’s household during the marriage. This allowed the father to benefit and continue in his pharmacy career in which his income and remuneration progressively grew. Even after separation, the mother served as the primary custodial parent while facing additional financial burdens from the father’s decision to not pay child or spousal support until January 1, 2019. She was never able to develop a strong command of the English language or meaningfully retrain or work during the marriage due to his insistence that she care for the children and manage the household, and became reliant on him as she had no income. Their finances were fully integrated. In my view, she took reasonable post-separation steps towards self-sufficiency by retraining and obtaining ECE-related work. Taking this all into account, I am satisfied that the mother has shown a clear connection between her contributions during the marriage and the increases to the father’s post-separation income that should entitle her to share in his increased income after separation.
[51] In deciding on a retroactive spousal support award, the ranges generated by the SSAGs are to be adjusted and “netted down” to account for its non-taxable status in the recipient’s hands and its non-tax deductible status in the payor’s hands: Thompson at para 75. In Bargout v. Bargout, 2013 ONSC 29 at para 66, the court followed Vanasse v. Seguin, 2008 ONSC 35922 and reduced the retroactive spousal support award by 30% due to the fact that the recipient would not pay tax on the retroactive award. In Patton-Casse v. Casse, 2012 ONCA 709 at paras 21-24, the Court of Appeal upheld a retroactive spousal support award that applied a 25% reduction to adjust the lump sum award by balancing both parties’ tax positions.
[52] The 2024 federal tax rates are as follows:
a) 15% on the portion of taxable income that is $55,867 or less, plus b) 20.5% on the portion of taxable income over $55,867 up to $111,733, plus c) 26% on the portion of taxable income over $111,733 up to $173,205, plus d) 29% on the portion of taxable income over $173,205 up to $246,752, plus e) 33% on the portion of taxable income over $246,752. [3]
The 2024 Ontario tax rates are as follows:
a) 5.05% up to $51,446 of taxable income, plus b) 9.15% between $51,446 and $102,894, plus c) 11.16% between $102,894 and $150,000, plus d) 12.16% between $150,000 and $220,000, plus e) 13.16% on any taxable income exceeding $220,000. [4]
[53] As of June 3, 2024, the mother’s income will be about $63,648.00 per year (i.e., $25.50 x 48 hrs/week x 50 weeks + 4% vacation) with her 2024 income tax obligation being $13,691.43 based on $10,314.92 (i.e., $51,446.00 x 0.2005) + $1,069.44 (i.e., $4,421.00 x. 0.2419) + $2,307.07 (i.e., $7,781.00 x 0.2965), reflecting 21.5% of her gross 2024 income (i.e., $13,691.43 ÷ $63,648.00). The Father’s 2024 income is set at $175,293.00 based on his 2023 annual income. Should he earn $175,293.00 in 2024, his 2024 income tax obligation will be $52,060.77 based on $10,314.92 (i.e., $51,446.00 x 0.2005) + $1,069.44 (i.e., $4,421.00 x. 0.2419) + $13,943.51 (i.e., $47,027 x 0.2965) + $2,798.43 (i.e., $8,839.00 x 0.3166) + $14,220.02 (i.e., $38,267.00 x 0.3716) + $8,855.03 ($23,205.00 x 0.3816) + $859.42 (i.e., $2,088.00 x 0.4116), reflecting 29.9% of his gross 2024 income (i.e., $52,060.77 ÷ $174,293.00).
[54] It follows that the mother and the father have marginal tax rates of 21.5% and 29.9%, respectively. The average of these rates is 25.7%. After balancing the parties’ interests, I find that the appropriate rate to apply to net-down the gross retroactive spousal support arrears is 25%.
[55] During submissions, the parties agreed to the retroactive spousal support calculations from separation to April 30, 2024 as set out in the following table: [5]
Table of Retroactive Spousal Support
| Year | Months Payable | Father’s Income | Mother’s Income | Number of Children | SSAG (high) | Total Payable (Period) | Total Support Paid (Period) | Balance Owing (Period) |
|---|---|---|---|---|---|---|---|---|
| 2018 | 4 | $153,825.00 | $1,334 | 2 | $2,798 | $11,192 | $ 11,192.00 | |
| 2019 | 12 | $204,298.00 | $1,440 | 2 | $4,892 | $58,704 | $ 24,000.00 | $ 34,704.00 |
| 2020 | 12 | $171,602.00 | $1,440 | 2 | $3,973 | $47,676 | $ 24,000.00 | $ 23,676.00 |
| 2021 | 12 | $182,054.00 | $11,332 | 2 | $3,833 | $45,996 | $ 24,000.00 | $ 21,996.00 |
| 2022 | 4 | $171,814.00 | $41,902 | 2 | $2,832 | $11,328 | $ 8,000.00 | $ 3,328.00 |
| 2022 | 8 | $171,814.00 | $41,902 | 1 | $3,284 | $26,272 | $ 16,000.00 | $ 10,272.00 |
| 2023 | 8 | $175,293.00 | $44,136 | 1 | $3,774 | $30,192 | $ 16,000.00 | $ 14,192.00 |
| 2023 | 4 | $175,293.00 | $44,136 | 2 | $3,338 | $13,352 | $ 8,000.00 | $ 5,352.00 |
| 2024 | 4 | $175,293.00 | $44,136 | 2 | $3,338 | $13,352 | $ 8,000.00 | $ 5,352.00 |
| TOTAL | $ 130,064.00 |
[56] The table accounts for interim support that the father paid on a temporary without prejudice basis pursuant to Kumaranayake J.’s consent order dated November 27, 2018. Given its temporary without prejudice nature, the order does not impact my findings on retroactive spousal support beyond the offset for the prior support payments made by the father pursuant to it.
[57] This was a marriage of about 19 years with two children. While out of the workforce, the mother cared for the children, managed the household, and made significant career sacrifices during the marriage. In my view, the mother has a strong compensatory claim for spousal support, and has shown a clear need and dependence on the father for support, particularly in the immediate aftermath of the separation. Despite having the financial means to pay support, the father chose to not pay any child or spousal support after separating on April 22, 2018 until January 1, 2019.
[58] Given that the mother has a strong compensatory spousal support claim, I find that high-range SSAG spousal support is appropriate to apply in ordering retroactive spousal support on the particular facts of this case.
[59] Based on the foregoing, I conclude that the father should pay retroactive spousal support in the amount of $97,548.00 (i.e., $130,064.00 less a net-down of $32,516.00).
[60] As noted earlier, the parties agree that child support is not payable for S.M. from May 1, 2024 to December 31, 2024, after which it should resume from January 1, 2025 to December 31, 2027 when child support should terminate. The parties also agree that child support for A.M. should end on July 31, 2024. Accordingly, I find that the mother should have high-range SSAG spousal support of $3,774 for the month of May 2024 that accounts for the change in child support for that month based on the payor father’s income of $175,293.00 per year and her then-income of $44,136.00 per year, respectively. As of June 3, 2024, the mother’s estimated income increased to about $63,648.00 per year. Accordingly, for the months of June 2024 and July 2024, I find that she should have mid-to-high range SSAG support of $2,600.00 for each month to reflect her improved income and career prospects, her relative ability to achieve self sufficiency in view of the standard of living previously enjoyed by the parties, and the extended duration of the spousal support payments (i.e., given the application of Rule of 65 in this case): ss. 3.4.2 and 10.1 of the SSAGs; Bracklow at para 53; Reisman v. Reisman, 2014 ONCA 109 at paras 28 and 30. Thereafter, from August 1, 2024 until December 31, 2024, I find that she should have mid-to-high range SSAG support of $3,300.00 per month. From January 1, 2025, until December 31, 2027, I find that the mother should have mid-to-high range spousal support of $2,600.00 per month. Thereafter, from January 1, 2028 onwards, I find that the mother should have $3,300.00 in monthly mid-to-high range spousal support for an indefinite period. Taking everything into account, and subject to any adjustments for changes to the parties’ respective incomes, I am satisfied that this award of spousal support is just and appropriate in the particular circumstances of this case.
Equalization and Other Property Issues
[61] I am satisfied that the father owes the mother an equalization payment of $90,014.75, based on the figures in the mother’s revised comparative net family property statement dated May 28, 2024 which the father has accepted. [6] Having considered the evidence, I am satisfied that there is no real or substantive difference in the parties’ respective positions with respect to the value of the various family assets and liabilities. More specifically, I am satisfied that the investment, pension, and car loan figures are accurately set out in the statement.
[62] I find that the mother should have pre-judgment interest on her equalization payment at the rate of 1.5% per year on her equalization payment from April 22, 2018 (i.e., from the date of separation) fixed at $8,478.65 (i.e., $90,014.75 x 0.015 ÷ 365 x 2292 days): Courts of Justice Act, RSO 1990, c. C.43 at ss. 128 and 130. I see no basis to deny prejudgment interest in this matter, and none was raised at trial: Muraven v. Muraven, 2021 ONCA 657 at para 16.
[63] The parties have a jointly-owned RESP which they maintain for the benefit of the children. The December 31, 2023 value of the RESP was $3,732.18 for A.M. and $34,146.49 for S.M., respectively. They established the RESP prior to separation.
[64] The father claims to have paid funds into the RESP after separation but led no meaningful evidence to explain the separation value of the RESP or his post-separation contributions. He did not claim or seek reimbursement for his post-separation contributions in his pleadings or in his opening statement at trial.
[65] The RESP is jointly-owned. Given the lack of meaningful evidence to show the purported value of the RESP at separation, or to show the father’s post-separation contributions to the RESP, I find that any remaining RESP proceeds should be divided equally between the parties once the children have completed their post-secondary education.
[66] The sum of $891,248.13 is currently being held in trust from the net sale proceeds of the matrimonial home in Mississauga (i.e., that amounted to $228,231.56) and the investment property in Cambridge (i.e., that amounted to $717,285.45). The total net sale proceeds of both properties came to $945,517.01. Apart from a prior $54,268.88 advance of trust funds to the father, that he has acknowledged, I am satisfied that the parties should equally share the remaining trust proceeds without further post-separation adjustments, subject to certain offsets that I shall order to allow the mother to recover various claims against the father’s share of the funds held in trust. Accordingly, from the fund being held in trust, I find that the mother is entitled to $472,758.50 (i.e., 50% of $945,517.01) and the father is entitled to $418,489.62 (i.e., 50% of 945,517.01 less his prior $54,268.88 advance), subject to offsets as ordered below.
Outcome
[67] Accordingly, I hereby make the following orders:
a. the father shall pay the mother $18,108.00 in child support arrears; b. the father owes the mother child support of $1,481.00 per month for one child, namely A.M., from May 1, 2024 to July 31, 2024, after which A.M.’s child support payments shall terminate; c. no child support is payable from August 1, 2024 to December 31, 2024 (i.e., as neither child is eligible to receive child support during this time); d. the father shall pay the mother child support of $1,481.00 per month for one child, namely S.M., from January 1, 2025 until December 31, 2027, after which S.M.’s child support payments shall terminate; e. for greater clarity, the father’s child support obligation shall cease on December 31, 2027; f. the mother and the father shall share s.7 expenses for the children in a 27:73 ratio (i.e., based on the mother’s estimated income of $63,648.00 and the father’s annual income of $175,293.00 according to his most recent tax filings) for so long as either child remains a dependent child of the marriage entitled to child support; g. the father shall pay the mother $97,548.00 in retroactive spousal support; h. the father shall pay the mother $3,774.00 in spousal support for May 2024 to reflect high-range support under the SSAGs based on the mother’s income of $44,136.00 per year and the father’s income of $175,293.00 per year; i. the father shall pay the mother $2,600.00 per month in spousal support from June 1, 2024 until July 31, 2024 to reflect mid-to-high range support under the SSAGs based on the mother’s estimated income of $63,648.00 per year and the father’s income of $175,293.00 per year; j. the father shall pay the mother $3,300.00 per month in spousal support from August 1, 2024 to December 31, 2024 to reflect mid-to-high range support under the SSAGs based on the mother’s estimated income of $63,648.00 per year and the father’s income of $175,293.00 per year; k. the father shall pay the mother $2,600.00 per month in spousal support from January 1, 2025 until December 31, 2027 to reflect mid-to-high range support under the SSAGs based on the mother’s estimated income of $63,648.00 per year and the father’s income of $175,293.00 per year; l. the father shall pay the mother $3,300.00 per month in spousal support from January 1, 2028 to reflect mid-to-high range support under the SSAGs based on the mother’s estimated income of $63,648.00 per year and the father’s income of $175,293.00 per year; m. the parties shall exchange full and complete copies of their income tax returns with all schedules and attachments filed with Canada Revenue Agency by May 15 of each year starting on May 15, 2025 and shall produce full and complete copies of any Notices of Assessment and Notices of Reassessment received from Canada Revenue Agency forthwith upon receipt. Adjustments to support shall be made once the parties’ 2024 income is known and any overpayment or underpayment shall be calculated and paid by July 1st, 2025; n. the father shall provide the mother with an equalization payment of $90,014.75 plus pre-judgment interest from the date of separation fixed at $8,478.65; o. any remaining proceeds of the parties’ jointly-owned RESP shall be divided equally by the parties once both children have completed their post-secondary education; p. of the $891,248.13 held in trust from the net sale proceeds of the matrimonial home and the investment property, the mother is entitled to $472,758.50 (i.e., representing her half-share of the trust funds) and the father is entitled to $418,489.62 (i.e., based on his half-share of the trust funds less his prior $54,268.88 advance); q. from the father’s $418,489.62 entitlement to the net sale proceeds held in trust, the mother may recover the following amounts: i. $18,108.00 for child support arrears; ii. $1,481.00 for child support for May 2024; iii. $1,481.00 for child support for June 2024; iv. $1,481.00 for child support for July 2024; v. $97,548.00 for retroactive spousal support; vi. $3,774.00 for spousal support for May 2024; vii. $2,819.00 for spousal support for June 2024; viii. $2,819.00 for spousal support for July 2024; ix. $90,014.75 for the equalization payment owed to her; and x. $8,478.65 in prejudgment interest on the equalization payment; (i.e., for a total recovery of $228,004.40).
Accordingly, from the $891,248.13 currently held in trust, and after offsetting for the above-noted recovery amounts, the mother shall have $700,762.90 (i.e., to reflect her $472,758.50 share of the total net sale proceeds plus $228,004.40 in offsets for amounts owed to her) and the father shall have $190,485.22 (i.e., to reflect his $418,489.62 share of the total net sale proceeds after his prior $54,268.88 advance less the $228,004.40 in offsets owed the mother);
r. unless withdrawn from the Director’s Office at the Family Responsibility Office, this order shall be enforced by the Director and support amounts owed under the order shall be paid to the Director who shall pay them to the person to whom they are owed; s. this order bears post-judgment interest at the rate of 7% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default; and t. either party may ask to have this matter spoken to within 30 days to address any issues with the calculations in these reasons or the implementation of the orders.
[68] Should the parties be unable to resolve the matter of costs, the mother may deliver written costs submissions of up to 5 pages (excluding any bill of costs or offer(s) to settle) within 15 days and the father may deliver written costs submissions on the same terms within a further 15 days. Reply costs submissions shall not be delivered without leave.
Released: August 1, 2024 M.T. Doi J.