Court File and Parties

COURT FILE NO.: FC-21-464 DATE: 2024 09 13 SUPERIOR COURT OF JUSTICE, FAMILY COURT

RE: Michael Ecclestone, Applicant AND: Emily Griffiths, Respondent

BEFORE: C. MacLeod, Regional Senior Justice

COUNSEL: Alexandra Kirschbaum and Erin MacDonald, for the Applicant (Husband) Judy Overgaard and Genevieve Lalonde, for the Respondent (Wife)

HEARD: August 27, 2024

Supplementary Reasons

[1] On March 2024 I released my decision in this matter following a trial that concluded in December (2023 ONSC 1663). At paragraphs 68 and 70 of those reasons, I had contemplated further submissions in the context of preparing the formal judgment if there were either mathematical errors or calculations that counsel could not resolve.

[2] Paragraph 68 dealt with the possibility that my calculations might differ from what a new DivorceMate printout might generate and also with the fact that the income figures used in December for 2023 income were estimates whereas year end income figures would shortly be available. Paragraph 70 dealt with the issue of grossing up the spousal support award for taxes.

[3] Neither paragraph anticipated reopening the trial or rearguing the question of whether or not spousal support should be fixed at $0 (the position espoused by the Applicant husband at trial).

[4] The somewhat unusual fact situation I was dealing with in this trial was the fact that the Applicant husband who had the children 50% of the time had boosted his income post-separation by taking employment that required him to be in Toronto every second week and to maintain two home bases as a result. In my decision I allowed the husband what I regarded as a reasonable allowance for travel and living costs as a cash flow adjustment in calculating his income but not a 100% dollar for dollar reduction. (see para. 67 of the decision).

[5] Counsel have been unable to settle the form of the Order or agree on appropriate recalculations. Accordingly, they arranged a hearing before me on August 27, 2024. Needless to say, I had not anticipated that settling the judgment would take many months. In fact, this hearing was after the date when the parties are required to retroactively adjust child support for 2023. (See para. 30 of the original decision). I note as well that I have yet to award costs of the trial and counsel have not settled that question either.

[6] Two circumstances have occurred since the end of the trial and the release of the decision. Firstly, their daughter decided not to live 50% of the time with each parent and has been living primarily with the mother. She is also to start post-secondary education at Carleton University this fall and will be living in residence. The parties have adjusted child support accordingly but counsel for the Applicant argues that this means the Net Disposable Income (“NDI”) numbers will be skewed and the husband’s capacity to pay spousal support is reduced.

[7] The second unanticipated change is the fact that the mother’s 2023 income was $38,787 higher than anticipated. This was due to income on her investments, primarily the funds she set aside from the sale of the matrimonial home.

[8] Counsel for the Applicant suggests that these changes – increased child support and higher than anticipated income for the mother – require a complete rethinking of the spousal support award because adding in these amounts alters the NDI figures significantly. I was provided with various DivorceMate calculations showing the Applicant with NDI as low as 47% and the Respondent as high as 53% if spousal support is paid.

[9] I have the following comments. Firstly, DivorceMate NDI calculations are not an end in themselves. Nothing in my reasons was intended to suggest that support should be adjusted to produce a specific NDI outcome. Rather, the NDI calculations in DivorceMate are intended as a tool to examine the overall fairness of different support orders. It is true that in para. 70, I held that an approximate NDI to the Applicant of 53% and to the Respondent of 47% was a satisfactory outcome but as discussed in paras. 60 and 69, there is no principle that NDI must be exactly equal. The principle is that in a shared parenting arrangement, the standard of living in each household should be roughly equivalent if that can be practically and fairly achieved.

[10] The second point is that the NDI tool is not precise. It does not accurately reflect “disposable income” because it does not account for the actual costs of shelter or groceries or activities (unless reflected in a cash flow adjustment) nor for annualized costs or cash flow such as tax refunds. For that matter, DivorceMate printouts are not magic. They are tools to assist the parties and the trial judge in applying the Child Support Guidelines and the Spousal Support Advisory Guidelines (“SSAG”).

[11] The $38,787 in investment income was generated because the Respondent invested her share of the net proceeds of the sale of the matrimonial home in an income earning account. If and when she purchases a home, those funds will no longer earn income. The Applicant also has investments but his evidence at trial was they are “laddered” meaning that income will be received and taxable in subsequent years. There will always be some variation in income from year to year. It is for this reason the parties have agreed to adjust child support retroactively once their income tax returns have been assessed. They do not have a similar agreement for adjustment of spousal support but in any event it cannot be addressed in a fruitless effort to chase particular NDI numbers.

[12] This trial took place in 2023 and the support is to be fixed for 2023 and 2024 based on the findings at trial as updated to the minor extent left open in my trial reasons. There is no suggestion that there was a mathematical error. The only justifiable adjustments relate to the slight increase to the Respondent’s actual income. I would also take into account the change in parenting which has resulted in an increase in child support to be paid by the Applicant to the Respondent.

[13] Reviewing all of the scenarios in the various DivorceMate printouts, I fix the amount of spousal support at $1,400 per month. This is towards the low end of the SSAG assuming that there is no longer shared parenting for Helen and the Respondent is claiming the child tax credit for her. This is somewhat lower than the $1,000 per month net of tax that I had contemplated in the original reasons. The parties have resolved how they will apply RESP withdrawals and how much they will each fund once Helen starts at university.

[14] Counsel are to jointly prepare a draft judgment for signature based on the other findings, the provisions they agree upon for inclusion and leaving room for an award of costs, if any. If there are any other provisions of the judgment where counsel disagree on the wording, they are to prepare a draft with the disputed paragraph or paragraphs clearly marked and I will accept brief written submissions within the next 30 days.

[15] Similarly, if counsel cannot resolve the question of costs then they are to provide written cost submissions within 30 days. Each party enjoyed some success at the trial based on the issues to be decided. The Applicant was not successful in setting spousal support at $0. The Respondent was not successful in establishing unjust enrichment or that support should be established by comparing her hypothetical earnings had she pursued an academic career. On the other hand, there may be other factors to consider, and I am not privy to any offers to settle.

C. MacLeod, RSJ Date: September 13, 2024