Court File and Parties

COURT FILE NO.: FC137-21 DATE: 2024-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alisa Cornale-Picone Applicant – and – Gregory Picone Respondent

Counsel: C. Haber, Counsel, for the Applicant D. Willer, Counsel, for the Respondent

HEARD: June 18, 29, 20, 21, 2024 (closing submissions in writing)

JUDGMENT

The Honourable madam justice l. bale

Overview

[1] The major issue for determination at trial is the Respondent husband’s obligation to pay spousal support to the Applicant wife.

[2] The Applicant wife seeks an order for:

1. Prospective spousal support payable at a rate of $4,100.00 per month;
2. Retroactive spousal support fixed in the sum of $44,583.03 for the period of September 1, 2019 to September 1, 2021;
3. Security for spousal support (life insurance and pension designation); and
4. One additional month of child support on behalf of the child, Adriana, in the amount of $1,194.00.

[3] The Respondent seeks an order that:

1. His spousal support obligation to the Applicant be terminated effective July 1, 2024;
2. There is no retroactive spousal support owing; and
3. Child support on behalf of Adriana be terminated on a final basis on July 1, 2024.

[4] A number of miscellaneous issues have been resolved on consent, and will be included in the Final Order of this court.

Background facts

[5] The following facts are not disputed:

1. The parties were married on August 1, 1992, and separated on August 28, 2016, after twenty-four years of marriage.
2. The Applicant wife is 55 years of age.
3. The Respondent husband is 62 years of age.
4. The parties have three children together: a. Lorena is 29 years of age, is severely disabled, and cannot live independently. b. Leah is 27 years of age, graduated from post-secondary studies in 2019 and is self-supporting; and c. Adriana is 24 years of age, graduated from post-secondary studies in May 2024, and has written her nursing licensing exam.
5. The Applicant is not employed.
6. The Respondent retired as a teacher/principal on July 1, 2022.

[6] The parties were able to resolve all equalization and property issues arising out of their relationship. They agree that:

1. The Respondent husband owed an equalization payment to the Applicant wife of $542,301.00, which included the net of tax family law value of the Respondent’s teacher’s pension.
2. The matrimonial home was sold in February 2022, and from the net sale proceeds: a. the Applicant wife received $657,068.00 as her ½ share of the proceeds of sale, plus the equalization payment owing to her of $541,301.00, for a total receipt of $1,199,369.00; b. the Respondent husband received $80,000.00; and c. a balance of $15,204.00 remains held in trust.

[7] With respect to support, the parties agree that the ‘un-equalized’ portion of the Respondent’s teacher’s pension (i.e. attributable to time periods either pre-dating or post-dating the parties’ marriage) results in the following income stream:

1. An annual income of $25,797.33 in 2024 (and indexed thereafter), based upon the Respondent’s actual retirement at 59.1 years of age on June 30, 2022; and
2. An annual income of $38,623.50 (and indexed thereafter), based upon the Respondent’s future retirement at 65 years of age.

[8] The Applicant’s court Application was issued on January 28, 2021. The Respondent filed an Answer within the prescribed timelines.

[9] On October 20, 2021 Brown J. made a Temporary Order which provided for interim support, as follows:

1. Child support payable by the Respondent to the Applicant, on behalf of Adriana, in the sum of $1,194.00 per month, based upon the Respondent’s annual income of $137,492.00, plus proportionate contribution to s. 7 expenses; and
2. Spousal support payable by the Respondent to the Applicant of $4,100.00 per month.

[10] All payments ordered by Justice Brown were in good standing at the time of trial.

[11] On June 21, 2024, at the conclusion of the evidence heard at trial, this court made an order on consent which suspended the payment of child support on behalf of the child Lorena, effective July 1, 2024, and granted a Divorce.

The Law and Application

Issue #1: Spousal Support

[12] The Applicant’s request for spousal support was made as corollary relief in the context of a Divorce claim. Accordingly, the court’s jurisdiction to order the payment of spousal support is found in s. 15.2 of the Divorce Act, R.S.C. 1985, c 3 (2nd Supp).

Entitlement

[13] Canadian jurisprudence recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory support; (2) contractual support; and (3) non-compensatory support: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 15.

[14] Under the Divorce Act, the purposes of 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) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: s. 15.2(6), Moge v. Moge, [1992] 3 S.C.R. 813.

[15] In this case, the Applicant seeks spousal support on both a compensatory and non-compensatory basis. Although the Applicant worked on a part-time basis for her family’s business and had aspirations to become a teacher, during the early years of the relationship the parties made a joint decision that the Applicant would remain home with the children. Lorena’s special needs were identified at an early age, and the family recognized that she required a high level of care. The Applicant was the children’s primary caregiver. She remained out of the workforce and the Respondent husband continued to work as a teacher, then as a Vice Principal, and ultimately as a Principal.

[16] The Respondent commenced teaching, as a high school teacher, in September 1989. He became a Vice Principal in 2006, and became a school Principal in September 2011. He took courses during the parties’ marriage which allowed him to achieve these progressions. The Respondent acknowledges that the Applicant was responsible for the children’s morning routines, and had dinner ready every night. However, he testified that he assisted with cleaning and home maintenance, that his family was a priority for him whenever he was not working, and that he was very actively involved in their daily lives. He acknowledges that the Applicant was and remains “an exceptional mom”.

[17] Both parties appear to have had strong support from their extended families both during their marriage and following separation.

[18] Although the parties do not agree to the level of involvement of the husband in the day-to-day operation of the household, it is evident to this court that the Applicant was the children’s primary caregiver during the day, but that the Respondent father was an active and involved parent after work, on weekends, and during the summer months if he was not teaching summer school. When the parties ultimately separated in 2016, the Applicant wife was not employed outside of the home. She remained in the matrimonial home with the children, and as the younger two children went off to post-secondary studies, they continued to use the Applicant mother’s home as their home base. The Respondent husband continued to be employed with the school board.

[19] It is evident from the length of the marriage, the roles assumed by both parties during the marriage, and the current circumstances that the parties find themselves in today that entitlement to spousal support is established on a both a strong compensatory and a non-compensatory basis.

Determination of Income

[20] The starting point for determining the appropriate quantum of spousal support payable between the parties is a determination of their respective incomes. In considering each party’s income for the purpose of spousal support, this court is asked to consider:

a. The reasonableness of the Respondent’s retirement; b. The ability of both parties to earn income through part-time employment; c. The Applicant’s failure to generate income from her assets; and d. ‘Double-dipping’ into the Respondent’s pension income.

(i) Retirement

[21] It is common ground that the Respondent reached eligibility for full retirement (at an unreduced pension) in October 2017. He retired in June 2022, at the age of 59.5, after 33 years of employment as a teacher/vice-principal/principal. I find that in September 2017, the Respondent advised the Applicant, in writing, that he intended to retire in June 2020. The Applicant stated her objection to this plan. The Respondent continued to work. In February 2020, the Respondent advised that he now intended to retire in June 2022, and ultimately he did follow through with this plan. I am not satisfied that the parties ever reached a consensus, either during the marriage or following separation, as to an agreed-upon anticipated retirement date.

[22] The Applicant asks the court to impute an income to the Respondent, commensurate with the level of income he was earning as a full-time principal ($137,492.00) for the purpose of determining his ongoing spousal support obligation to her. The Applicant argues that the Respondent’s retirement at 59.5 years of age was unreasonable in the face of his obligation to contribute to her support and suggests that his medical issues have been orchestrated or exaggerated in order to defeat her spousal support claim. I do not accept this position.

[23] Most of the caselaw provided to the court regarding the reasonableness of a payor’s decision to retire is found in the context of motion to change proceedings. That is, in those cases the court was asked to decide whether the payor’s voluntary decision to retire constituted a material change in circumstances warranting a reduction or termination of spousal support. Although not a motion to change proceeding and this court is tasked with determining the appropriate quantum of spousal support payable at first instance rather than the materiality of a change in circumstances (i.e. retirement), the following themes and principles identified within the caselaw provided are of assistance to the court:

1. A payor cannot voluntarily retire early in an effort to frustrate a spousal support obligation. It is appropriate to impute income in such circumstances: Teeple v. Teeple, [1999] O.J. No. 3565 (Ont. C.A.), at para. 9.
2. Voluntary retirement, even if not intended to frustrate a spousal support obligation, does not give automatic right to a reduced spousal support obligation. Voluntary retirement may constitute intentional unemployment.
3. There is no set age at which people expect to cease working: Bullock v. Bullock, [2004] O.J. No. 909 (Ont. S.C.).
4. The effect of voluntary retirement due to a purported medical inability to work is entirely dependent on the specific facts of each case: Hesketh v. Brooker, 2013 ONSC 1122, at para. 22.
5. Even in the face of retirement, a spouse’s ability to pay may include his or her capacity to earn an income, either in the job he has chosen to leave or from other employment following retirement: Hickey v. Princ, 2015 ONSC 5596, at para. 60.

[24] The reasonableness of a payor’s retirement date is a highly fact-specific inquiry. Reliance upon caselaw for age-specific determinations of reasonableness is of limited value. Likewise, the average age of retirees receiving benefits under the Ontario Teacher’s Pension Fund, age 59 – as confirmed by Mr. Lum, manager of member experience, is also of limited assistance.

[25] On the specific facts of this case, I accept that the Respondent husband’s decision to retire at the age of 59.5, after 33 years of pensionable employment and almost five years after his eligibility to retire at full pension, in the context of his mental health struggles and caregiving role for Lorena, was reasonable.

[26] The Respondent, and his family physician, Dr. Turner, testified as to the Respondent’s medical challenges. The Respondent husband was diagnosed with cancer in 1994. He has had various treatments over the years including surgery, radiation, and hormone treatment. He sees a specialist every six months for monitoring and although he is presently in good physical health, the threat of this cancer is a source of ongoing anxiety for the Respondent.

[27] In June 2020, the Respondent was formally diagnosed with depression and anxiety, was put on medication, and began engaging in cognitive behavioural therapy through a mental health counsellor. The Respondent husband took a leave of absence from work in November 2020, at that time projected by Dr. Turner to be for 4-6 months with a gradual return to work. The Respondent was approved to return to work in May, 2021. In February 2022 the Respondent had a significant relapse, and his physician formed the medical opinion that the Respondent was ‘totally disabled’ from working on an indefinite basis. The Respondent was referred to a psychiatrist. The likelihood of further relapses (i.e. serious episodes of depression) increased. Dr. Turner endorsed the Respondent’s plan to retire. Ultimately, after two sick leaves, the Respondent retired, effective June 2022. The Respondent continues to be under Dr. Turner’s regular care and treatment, including medication, for Major Depressive Disorder.

[28] I accept the Respondent’s evidence that he was unable to meet the stresses and challenges as a full-time principal, while caring equally for Lorena, navigating the emotional and financial pressures arising from his separation and this litigation, and coping with serious depression. I reject the assertion that the Respondent’s mental health issues were orchestrated or exaggerated to avoid payment of spousal support to the Applicant. The Respondent has borrowed funds from multiple sources to ensure that his onerous support obligations to the Applicant remain in good standing. I do not find the timing of the Respondent’s mental health diagnoses to be suspect. I find the concerns regarding the Respondent’s mental health to be very real. They have not been engineered to deprive the Applicant of spousal support. Whether Dr. Turner initiated the discussions and suggested that the Respondent should retire, or supported and encouraged his stated desire to retire does not detract from Dr. Turner’s medical opinion that the Respondent was totally disabled from working on an indefinite basis at the time this plan materialized. I accept that the Respondent’s retirement at full pension was the most reasonable option for the Respondent at the time.

[29] I decline to impute an annual income of $137,492.00 to the Respondent, as requested by the Applicant. I find that the Respondent’s age and ongoing mental health vulnerabilities, in combination with the rigours and stresses of his workplace and onerous responsibilities of caring for a disabled adult child on an equal basis, prevented him from maintaining his previous employment. I accept that his retirement was both necessary and reasonable in the particular circumstances of this case.

(ii) Imputation of employment income from other sources

[30] It is generally accepted that the principles that apply in determining whether to impute income are the same in both child support and spousal support cases: Enyedy-Goldner v. Goldner, 2024 ONSC 1755, at para. 19; Rilli v. Rilli, [2006] O.J. No. 4142 (Ont. S.C.); Perino v. Perino, [2007] O.J. No. 4298 (Ont. S.C.).

[31] The leading case on the issue of imputation of income on the basis of intentional unemployment or underemployment is the case the Ontario Court of Appeal case of Drygala v. Pauli, which provides the following guidance:

1. A spouse must earn what he or she is capable of earning.
2. Where a court is asked to impute income to spouse on the basis of intentional unemployment or underemployment, the court must consider: a. Whether the spouse is in fact intentionally unemployed or underemployed, and b. If so, what income is appropriately imputed in the circumstances.
3. The term ‘intentional’ simply connotes a voluntary act: there is no need to find bad faith, or a specific intent to evade support for purposes of imputing income,
4. The court cannot arbitrarily select an imputed amount: the court’s discretion must be grounded in the evidence.
5. Considerations may include such factors as age, education, experience, skills and health of a spouse: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.), at paras. 23-44.

[32] Both parties allege that the other could supplement his or her income with part-time or other employment in order to improve their financial circumstances. However, Lorena has lived equally in the homes of the Applicant and Respondent for the past 7 years. The parties agree that caring for Lorena is a 24/7 job when she is in their care. The family appears committed to keeping Lorena with her family, rather than in a home for adults with special needs, for so long as this is possible. By reason of provision of care for Lorena, I find that, at most, each party could be expected to hold down a part-time position of employment, limited to the hours that they are not caring for Lorena.

[33] Both parties called their treating family physicians as witnesses at trial. With respect to their evidence I make the following mutual findings:

1. Both Dr. West and Dr. Turner presented as knowledgeable, thoughtful, balanced, and credible in the presentation of their evidence regarding the Applicant’s and Respondent’s health issues.
2. Both Dr. West and Dr. Turner were confident in their respective patients’ mental health diagnoses and ongoing need for treatment.
3. Both Dr. Turner and Dr. West, when assessing the mental health issues of their respective patients had to rely upon the accurate self-reporting of symptoms in forming their diagnoses. Neither physician identified any concerns that they were receiving inaccurate reports from their patients.
4. Both physicians testified that, in their professional opinions as participant experts, their respective patients have medical limitations which would prevent them from holding down full-time remunerative positions of employment at this time.
5. Neither physician opined on the possibility of part-time employment by their respective patients in low-stress, low physical exertion positions, now or in future.
6. Neither party has applied for disability benefits.

[34] The Applicant testified that she has not applied for any positions of employment since separation. She and Dr. West both described that she was diagnosed with cancer in 2005, which was successfully treated. She has arthritis and IBS, had hip replacements in 2017 and 2018, and her gallbladder removed in 2020. She continues to struggle with fatigue, stiffness and pain. In 2020, the Applicant was diagnosed with depression and anxiety. She has been seeing a counsellor since 2021. The emotional and financial stresses of separation, the high level of care required by Lorena, and the impact of the pandemic, were all noted as stressors. The Applicant continues to take her prescribed medication. I accept this information to be true.

[35] The Respondent testified that he has not applied for any remunerative positions of employment since his retirement. He now does volunteer work for a charitable organization, repairing bicycles for use by marginalized persons, from which he draws personal satisfaction. He believes that his volunteer work contributes to his positive mental health. Mr. Lum, from the Teacher’s Pension Fund confirmed that a retired member may work up to 50 days per school year (e.g. supply teaching, summer school, etc.) within the education industry without impacting their ability to collect their pension. The Respondent has not pursued this option.

[36] It is evident to this court, that both parties have survived potentially life-threatening medical issues, have shared the burden of physically, emotionally, and financially supporting a high-needs child for many years, and have experienced the stress and uncertainty of separation and divorce. It is not surprising that they are both burned out and struggling with mental health challenges.

[37] I am satisfied that the Applicant’s physical and mental health struggles at this time, in combination with the narrowness of her work experience and time constraints arising from her equal care of Lorena, prevent her from securing employment of any significance at this time. It was evident to the court, both by the content of the Applicant’s evidence and her presentation at trial, that she continues to struggle significantly with the loss of her marital union. I accept the Applicant’s representation that she has been unable to return to the workforce in meaningful way since separation as genuine. I decline to impute an employment income to the Applicant.

[38] At present, the Respondent perhaps enjoys better physical health than the Applicant. As noted above, his mental health is fragile, and he too is limited in time by his equal care of Lorena. However, the Respondent enjoys good physical health, has an impressive resume, and appears to have the option of supply teaching when he is not caring for Lorena. While no evidence was elicited as to the rate of pay for supply teachers, I am prepared to estimate that given the Respondent’s qualifications, the rate should not be less than $250.00 per day. I acknowledge that the Respondent’s return to teaching would have to be on a low-stress and flexible basis so as not to jeopardize his mental stability. Presuming a ‘light’ supply teaching schedule of once or twice per week, on alternating weeks (when Lorena is not in his care), when school is in session, I am prepared to impute a part-time income of $10,500.00 per year to the Respondent. This is not an amount, if earned through supply teaching, that would impact the Respondent’s pension income. I am confident that the Respondent’s age and level of health can manage this commitment.

(iii) Generating income from capital

[39] The Respondent asks the court to impute annual investment income of $27,111.00 per year to the Applicant, based upon a 5% rate of return on the funds she received by way of equalization payment ($542,301.00).

[40] When a pension is dealt with by lump sum, as is the case before this court, the recipient can use the assets immediately. Under a compensatory spousal support order or agreement, the recipient has an obligation to apply these assets in an income-producing way for use upon the payor’s retirement: Boston v. Boston, 2001 SCC 43, at para. 54. In Halliwell v. Halliwell, 2017 ONCA 349 the Ontario Court of Appeal held that a 3% rate investment return on the equalization payment paid to the recipient was a reasonable rate of return to be applied.

[41] The Applicant received the sum of $1,199,369.00 from the proceeds of sale of the matrimonial home, $542,301.00 of which constituted the equalization payment owing to her by the Respondent. This court has found that the Respondent’s retirement was reasonable. As such, the court is bound by Boston to consider the Applicant’s obligation to utilize the funds received in an income-producing way.

[42] The Applicant advises that following the sale of the matrimonial home, she purchased a three-bedroom home for $1.1 million dollars. She testified that she did so at the height of the real estate market, when options were limited. She believes that the home has decreased in value. A small mortgage was placed on the property which now totals approximately $85,000.00. The monthly payments are approximately $430.00 per month. The Applicant acknowledges that she did not attempt to utilize any portion of the equalization payment owing to her to generate income. Although the Applicant’s current residence is not the matrimonial home, she urges the court to find that it would be unreasonable to expect her to generate investment income from her residence.

[43] In this case, I did not get the sense that the Applicant is a sophisticated investor. She utilized her entire asset base to purchase a home with a nominal mortgage. I accept that the Applicant purchased her home in an inflated market, however, I am not necessarily satisfied that she considered more prudent and affordable accommodations, as did the Respondent. It remains open to the Applicant to downsize further in future. In these unique circumstances, I am prepared to attribute a more modest investment return (approximately 2%) as an annual income attributable to the Applicant on the equalization funds she received. I have considered both her desire to maintain a stable residence for Lorena and the change in real estate market conditions in reaching this conclusion. I conclude that it is appropriate to attribute an income of only $10,500.00 per year to the Applicant as an appropriate rate of return on her capital at this time.

[44] From a broader perspective, both parties have asked the court to respect their own lifestyle choices and critique those of the other side. I have respected the Respondent’s choice not to risk his mental health by actively seeking out more onerous employment, to allow his health stabilize, and to permit him to enjoy his retirement with Lorena. Likewise, I have given some measure of deference and respect to the Applicant’s decision to own and reside in a more comfortable, albeit somewhat expensive home, with Lorena. I find that both parties could have more diligently pursued options that put additional income in their hands, and both parties declined to do so, based upon their individual lifestyle preferences. I have made income adjustments which critically and equitably assess those choices.

(iv) Pension income and “double-recovery”

[45] The leading case on the interplay between equalized pensions and spousal support, i.e., ‘double-recovery’ remains the Supreme Court of Canada’s decision in Boston v. Boston. The term double-recovery is used to describe the situation, evident in this case, where a pension, once equalized as property, is also treated as income from which the pension-holding spouse must make spousal support payment, thereby causing the recipient of the equalization payment and spousal support to recover twice from the payor, once as an asset and once again as an income stream: Boston, para. 34. Generally, such recovery is found to be inherently unfair: “the payee spouse cannot save the assets that she receives on equalization and choose instead to live on the liquidation of the payor spouse’s pension when he retires: Boston, para. 56. To avoid double recovery, the court should, where practicable, focus on the portion of a support payor’s income that has not been equalized, including the portion of a pension that was earned prior to the date of marriage, or subsequent to the valuation date: Boston, para. 64.

[46] However, double recovery may be permitted in circumstances where spousal support is based primarily on need, and in particular where:

1. The payor spouse has the ability to pay;
2. Where the payee spouse has made a reasonable effort to use the equalized assets in an income producing way; and despite this,
3. Economic hardship persists: Boston, para. 65, Meiklejohn v. Meiklejohn, [2001] O.J. No. 3911 (Ont. C.A.).

[47] In February 2022, the Respondent equalized the family law value of his pension owing to the Applicant ‘in cash’ from the proceeds of sale of the matrimonial home. He retired four months later and started receiving his pension income at that time. He testified that if he had known that the Applicant would then ask for spousal support from his pension income, he would not have agreed to settle equalization in that manner. The vast proportion of the Respondent’s net family property consisted of the value of his pension. He has few other resources at his disposal. These factors would have been relevant if the court had been asked to consider whether the Respondent’s pension interests should be paid in lump sum fashion or divided at source: see Family Law Act, R.S.O. 1990, c. F.3, s. 10.1(4). I accept the Respondent’s evidence that he would not have consented to a cash payment had he believed that the Applicant would request double recovery in the form of spousal support on the pension interest already equalized.

[48] I am satisfied that the Applicant has ‘need’ for spousal support, even with an additional income of $10,500.00 per year attributable to investment income that ought to be generated from the equalization payment she received. However, the Applicant’s need cannot be determined in a vacuum without reference to the Respondent’s ability to pay.

[49] At the present time, I find that the Respondent is suffering greater financial hardship than the Applicant. In particular, I find as follows:

1. According to the Respondent’s sworn financial statement, the net (after-tax) income he receives form his pension is $5,865.00 per month. [1]
2. The Applicant is presently receiving $4,100.00 per month in spousal support. This is also the quantum of spousal support she is seeking by way of Final Order.
3. This spousal support amount is approximately 70% of the Respondent’s actual net monthly income.
4. The Respondent cannot presently meet his basic needs without borrowing funds from his family. The Respondent continues to go further into debt each month.
5. Lorena resides equally in the care of the Respondent. The Respondent’s ability to support Lorena in his home is adversely affected. He is forced to live far from their family supports and Lorena’s day-programming services. This is not in Lorena’s interests.
6. The Respondent also wishes to secure a stable residence for himself and Lorena. He will never be able to do so if he is required to pay high levels of spousal support while paying down the debt he has accrued since his retirement.
7. Notwithstanding that Lorena resides equally between the parties’ households, Lorena’s disability benefits of approximately $910.00 per month are retained within the Applicant’s household.
8. When the value of the Respondent’s pension is removed, he has a negative net worth.

[50] In these circumstances, it is the Respondent who finds himself in a position of serious financial hardship. I find that he does not have the ability to pay support to the Applicant on the basis of his full (equalized) pension. He will never be able to recover financially if his spousal support obligation is based upon this already-equalized source.

[51] This is not an appropriate case in which double-recovery is warranted.

Determination of quantum of spousal support payable

[52] In determining the amount and duration of spousal support, if any, the court must consider 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 support of either spouse: Divorce Act, s. 15.2(4).

[53] When assessing the condition, means, needs and other circumstances of each spouse, the word “means” includes consideration of all pecuniary resources, capital assets, income from employment or earning capacity, and any other sources from which the person receives gains or benefits: Strang v. Strang, [1992] 2 SCR 112. On the basis of the above, I find that the Applicant’s income for the purposes of spousal support is $10,500.00, attributed to her as income she ought to be generating from her capital, and the Respondent’s income for purposes of spousal support is $36,297.00, as per his un-equalized pension income and imputed part-time income of $10,500.00 per year.

[54] The Spousal Support Advisory Guidelines are a useful tool in the determination of spousal support. They suggest a range of both amount and duration of support that reflects the current law. While neither legislated nor binding, the use of SSAG calculations in family law proceedings has evolved from a starting point to a range that should not be deviated from lightly: Fisher v. Fisher, 2008 ONCA 11, at para. 98; Slongo v. Slongo, 2017 ONCA 272, at para. 81. On the basis of the parties’ incomes, as determined by this court, the proposed ranges of spousal support prescribed by the SSAGs are: (a) low: $774.00 per month; (b) mid: $903.00 per month; and (c) $1,032.00 per month. This was a long-term, traditional marriage. The Applicant has a strong compensatory claim and limited income and earning capacity. The Respondent’s pension is a stable source of future income, which is indexed and will increase annually. I am satisfied that the quantum of spousal support payable by the Respondent to the Applicant should fall at the high end of the spousal support range ($1,032.00 per month) on the very specific facts of this case, and that the amount should be indexed annually to the cost of living.

[55] This adjustment will be effective July 1, 2024, as at the date that the Respondent sought termination of his ongoing spousal support obligation to the Applicant.

Retroactive Spousal Support

[56] The Applicant seeks retroactive spousal support fixed in the sum of $44,583.03 for the period of September 1, 2019 to September 1, 2021. There appears to be some discrepancy in her position.

[57] The Applicant’s calculations reflect a position that $44, 583.00 is owing for the period of September 1, 2018 to September 1, 2021, based upon the mid-range spousal support suggested payable under the SSAGs. If her claim for retroactive support dates back to September 1, 2019, as per her draft order, the amount purportedly owing during this time period is approximately $30,000.00. The Applicant’s calculations reflect a tax discount at a rate of 35% to reflect the income tax that would be deductible had such payments been made in accordance with the terms of a court order. For purposes of this analysis, I will presume that there is typo in the draft order, and the Applicant actually intended to seek retroactive support to September 1, 2018 at this trial.

[58] The Respondent is opposed to a retroactive adjustment. In addition to the circumstances relating to the parties’ financial positions discussed above, he further argues that:

1. The Applicant’s calculations do not account for the s. 7 expense contributions that the Respondent made during this time period towards Leah and Adriana’s post-secondary expenses (e.g. the purchase of a used car and payment of car insurance, computer equipment, cell phone bills, etc.);
2. There is no suggestion that the Respondent failed to make accurate and timely disclosure of his income, etc.;
3. The Applicant enjoyed exclusive possession of the matrimonial home for six years following separation (and in particular during the relevant time period of the retroactive claim), without claim for occupation rent.

[59] However, most compelling in this case is the significant overpayment of both child and spousal support which occurred from July 1, 2022 to June 30, 2024, at which time this court has found that the Respondent’s retirement was reasonable. Effective July 1, 2022, there ought to have been a significant reduction of the child support and spousal support payable by the Respondent. The overpayment of support during this period of time exceeds the total value of the Applicant’s retroactive claim by a vast margin. Even in the absence of the additional and important factors advanced by the Respondent against retroactive adjustment, there is no additional support owing.

[60] The Applicant’s request for a retroactive adjustment of spousal support is dismissed.

Security for Spousal Support

[61] The Respondent has a life insurance policy on his life with a face value of $50,000.00. The Applicant is the beneficiary. It is appropriate that this life insurance designation remain in place as security for spousal support, as permitted under s. 15.2(3) of the Divorce Act. It is also appropriate to order that the spousal support terms are binding upon the Respondent’s estate, as there is no automatic provision for same under the Divorce Act, by contrast to support orders made under the Family Law Act.

[62] The parties’ three children appear to be named as beneficiaries of the Respondent’s pension in equal parts. As the pension is in pay, it is this court’s understanding that there is no jurisdiction for the court to order a change to the named beneficiaries. No evidence nor submissions were made on this point. I decline to make this order.

Issue #2: Child Support

[63] The Applicant seeks one additional month of child support on behalf of Adriana (i.e. the payment for July 2024) in the amount of $1,194.00. Adriana (age 24) was residing with the Applicant mother during this month. She graduated from Brock University in April 2024 and wrote her nursing licensing exam in June 2024. She had not yet secured employment at the time of trial. There is little to no evidence of Adriana’s expenses before the court.

[64] The Respondent’s child support obligation, as per the October 20, 2021 Temporary Order of Justice Brown, was based upon the Respondent’s previous full-time earnings as a principal of $137,492.00. This court has determined that the Respondent’s June 2022 retirement date was reasonable. His actual income for purposes of child support would thereafter have been approximately $93,000.00. There has been a significant overpayment of child support, which the Respondent father does not seek to recover. There is no basis for any further payments. Child support payable on behalf of Adriana shall be terminated on a final basis, effective July 1, 2024.

Miscellaneous Issues

[65] It was unclear to this court whether all of the miscellaneous issues included within the Applicant’s draft order were being made on consent. Evidence was not led, and argument was not made on many of the topics. In the event that this court has inadvertently included terms within the “on consent” portion of the Final Order below, which were not agreed to by both parties, counsel may arrange a ‘to be spoken to’ date before me through the Office of the Trial Coordinator, to address those errors.

[66] I recognize that this was a very difficult and costly trial for both parties. These were difficult issues, without a perfect solution. The parties are strongly urged to make effort to resolve the issue of costs on consent, so as not to incur further legal expense.

[67] I thank counsel for their professionalism at trial and for their thorough legal argument.

Order

[68] On the basis of the above, there shall be a Final Order to go on the following terms:

Not on consent:

1. Commencing July 1, 2024, the Respondent shall pay spousal support to the Applicant in the amount of $1,032.00 per month, indexed annually, by the indexing factor for November of the previous year.
2. Child support on behalf of the child Adriana Angela Picone shall terminate on July 1, 2024.
3. The Respondent shall maintain the Applicant as the irrevocable beneficiary of his existing State Farm Universal Life Policy for so long as he has an obligation to pay spousal support to the Applicant. The Respondent shall provide proof of compliance with this term to the Applicant upon reasonable request. The Respondent’s spousal support obligation shall be binding upon his Estate.
4. The remaining monies held in trust from the proceeds of sale of the parties’ former matrimonial home shall be released to the Respondent.
5. The parties shall exchange their respective (not previously disclosed) Income Tax Returns and Notices of Assessment upon request by the other party, such requests not to occur more than once per calendar year.
6. A Support Deduction Order shall issue.

On Consent:

7. The Applicant shall continue to receive and administer ODSP benefits on behalf of the child Lorena Carolyn Picone (“Lorena”), (in lieu of Table child support).
8. The Applicant shall continue to administer and manage the Passport Funding for the child Lorena, and shall provide to the Respondent on a quarterly basis an accounting of the use of the funds.
9. In the event that Lorena has section 7 expenses that are not covered by the ODSP and/or the Passport funding, then the parties shall contribute to such expenses in a ratio proportionate to their incomes provided that both parties consent to the expense in advance, such consent not to be unreasonably withheld.
10. If either party seeks contribution to section 7 expenses for Lorena, then each party shall provide to the other party a complete copy of their most recent Income Tax Return and a copy of their most recent Notice of Assessment/Reassessment.
11. The Respondent shall be at liberty to remove the Applicant as the secondary holder on the RDSP account for the child Lorena.
12. If the parties are unable to resolve the issue of costs: a. The party seeking costs shall serve and file Costs Submissions, not exceeding three pages in length, exclusive of a Bill of Costs and applicable caselaw, by December 27, 2024; b. The responding party shall serve and file Responding Costs Submissions, not exceeding three pages in length, exclusive of Bill of Costs and applicable caselaw, by January 17, 2025; c. If Costs Submissions are not served and filed by December 27, 2024, there shall be no costs payable arising from this action.
13. All other claims are dismissed.

Bale J.

Released: December 10, 2024

COURT FILE NO.: FC137-21 DATE: 2024-12-10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Alisa Cornale-Picone Applicant - and - Gregory Picone Respondent REASONS FOR JUDGMENT Bale J. Released: December 10, 2024

[1] The Applicant challenges the accuracy of this figure by comparing same with her Supportmate calculations. However, she has neglected to back out the income tax deduction associated with the payment of spousal support in challenging the accuracy of this figure.