Court File and Parties

COURT FILE NO.: FS 21-031 (Walkerton) DATE: 2024-02-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rachna Kalra Applicant

-and-

Sanjay Kalra Respondent

Counsel: Eli Cohen, for the applicant William Clayton, for the respondent

Heard: June 6, 7, 8, 12, 13, 14, 16, 2023; additional written submissions received June 26 and July 20, 2023

Justice. R. Chown

REASONS FOR Judgment

[1] The only issue in this seven-day trial was spousal support including: entitlement, quantum (requiring determination of each parties’ income and consideration of where within the range to fix support), retroactive amount payable, entitlement to lump sum future support, and duration of future support. The parties separated in 2020 after close to 24 years of marriage. They had one child who was in university at the time of separation.

Background

[2] The applicant, currently age 49, was born and raised in India. She obtained a B.A. in English literature from Delhi University in March of 1996.

[3] The respondent, currently age 57, was born in the United Kingdom but moved with his family to Canada in 1978 at approximately age 10. He obtained a Bachelor of Engineering from Ryerson in 1995.

[4] The parties were married in an arranged marriage in India in October 1996. The applicant applied to immigrate to Canada and successfully immigrated here in 1997. The parties moved to Washington State in March 1999 because the respondent secured a good employment opportunity there. The applicant moved back to Canada several months before their daughter was born (February 2000) and lived with the respondent’s parents until after the baby was born. She then returned to Washington State to continue living with the respondent.

[5] The parties moved to Kincardine in 2001. They lived, raised their daughter, and worked in this area throughout the rest of the marriage until separation. The applicant moved to Etobicoke after separation.

[6] The separation date was not entirely without controversy, but the parties had previously agreed that the separation date was May 3, 2020. The parties resolved all issues other than spousal support. For the purposes of this trial the precise separation date is not particularly significant, but to the extent it matters, I will use the agreed separation date of May 3, 2020.

The Parties’ Employment History

[7] The parties first lived together in Markham at the respondent’s parents’ residence. The parties moved to Washington State and then to Kincardine to promote the respondent’s career. The parties’ working lives can be conveniently divided into three phases: the GTA, Washington State, and Kincardine.

GTA

[8] After graduating from engineering and taking additional studies in Pharmaceutical Manufacturing, the respondent found employment with Apotex in 1997.

[9] The applicant said that when she came to Canada in 1997, and while living in the GTA initially, she did not work. This was consistent with her opening statement, served in March 2023, where she said she made “significant career sacrifices” and said that she “took on the more traditional primary caregiver role for their daughter … until she was well into high school, delaying the start of her own career.” In cross examination, she acknowledged having an unpaid volunteer position for a period of time while she and the respondent were living with the respondent’s parents; however, she said she did not have any paid employment at that time. She denied working for a bank in downtown Toronto. The respondent insisted in his examination in chief that the applicant volunteered at Air Link, but also that she worked at National Bank for over a year. In his cross examination, he provided details about how the applicant got the job through a connection in his family, about the type of work she did there, and about how she took the subway to work every day. He said in cross examination that she worked there for two years. He said he could call witnesses or find emails to bolster his position.

[10] This question of whether the applicant worked before having children plays into a defence theme. That theme is that the applicant started building her career upon coming to Canada and that she would have had no equivalent opportunities if she had not married the respondent, as she would not have had the opportunity to come to Canada. The assertion is that the applicant’s career and her economic prospects were not diminished but rather were enhanced by the marriage.

[11] Both parties’ evidence on this point had convincing specificity. But given what the applicant said in her opening statement and in cross examination, the respondent had full opportunity to provide other evidence that the applicant had worked at National Bank in the late 1990s. He offered no such evidence despite the prominence of the theme I have described. I do not seriously fault the respondent for not providing this evidence because it is a matter of ancient history, and little turns on it. But in these circumstances, to the extent it matters, I accept the applicant’s evidence on this point.

Washington State

[12] The applicant claims, and I accept, that she supported the respondent in his career. In about March 1999, the respondent accepted a position in the nuclear waste industry in Washington State. The parties provided competing evidence over whether the applicant sent the respondent’s resume to the employer in Washington State, or whether the respondent’s father did. It is an inconsequential point. The applicant took care of booking the applicant’s flights and accommodations for his interviews and went to Washington State with him for his second interview. She helped to obtain his work visa. She located apartments for them to consider renting. She became pregnant in a mutually planned pregnancy about a month after they were in Washington State.

[13] The applicant did not work in Washington State. As already indicated, the applicant moved back to Canada and lived with the respondent’s parents for several months prior to the birth of the parties’ daughter. The applicant then returned to Washington State with baby where the parties continued to reside until April 2001.

Kincardine

[14] The applicant stated, and I accept, that she helped the respondent prepare his resume in connection with his application to Bruce Power. She also took responsibility for arranging the logistics of their move back to Ontario, including the travel arrangements and disposition of their unnecessary furniture in Washington State. She researched rental accommodations in Kincardine. She took on most domestic responsibilities. She took on most of the childcare obligations.

[15] The respondent has worked for Bruce Power as an engineer since 2001. His line 15000 income between 2018 and 2021 ranged from approximately $133,000 to $141,000.

[16] In examination in chief, the applicant said that the only job she had between 1996 and 2011 was a part time position at the retail store of Steelback Brewery in Tiverton. In chief, she said this job started in 2005 or 2006 and lasted for a couple of years, off and on. In cross, it was put to her that she worked at Steelback full time from 2004 to 2009. She was confronted with her Linked-In profile that says she was an accountant and office administrator at Steelback from 2004 to 2009. She then acknowledged working there for five years but denied she worked there full time. Again, little turns on this point. It is ancient history at this point, and at the time the respondent was the primary childcare provider. It remains the case that the parties arranged their affairs such that the applicant was the primary homemaker and caregiver while their daughter was young. This choice diminished the career options of the applicant.

[17] The applicant’s income history is available from 2011 through tax records. She started reporting rental income in 2014. The rental income derived from the investment properties the parties acquired. The applicant says she did much of the work associated with these properties, including making sure Excel spreadsheets detailing income and expenses were complete, communicating with renters regarding their needs and regarding things that had to be repaired, and she said she would help renters get these problems fixed. She would also assemble the records that were required for both U.S. and Canadian tax returns for these properties. She would arrange for cleaning of the units when renters vacated. She would contact real estate agents to list the properties for rent when they were vacant.

[18] The respondent generally identified the properties they purchased and he by no means left operating the properties entirely to the applicant. He also played a large role in the work involved. It was a joint venture.

[19] However, it would mischaracterize things to say that, for either of them, their career was as a landlord. I consider the income from the investment properties to be investment income outside of their careers.

[20] The applicant recognized that Bruce Power and its many contractors offered the best employment opportunities in the area. Once their daughter was a little older, she focused her career advancement accordingly. To do this, she took project management courses at Georgian College and obtained a diploma in project management. This eventually led to solid employment with Bruce Power. It took her some time to break into employment in project management.

[21] The applicant’s tax records from 2011 and later first indicate employment income in 2014. In that year, she earned approximately $8,000 from CIBC where she worked part time. In 2015 she earned approximately $15,000 from CIBC. The meagre income the applicant earned from 2011 to 2015 demonstrates the weakness in the respondent’s theme that the applicant’s career was enhanced, rather than diminished, by the marriage and its breakdown.

[22] In 2016, the applicant earned a combined $35,000 at Superheat, where she worked for 7 or 8 months, and at Bruce Power. The position at Bruce Power was in the IT admin department and was at a relatively low wage of $15 per hour. With her foot in the door, the applicant then obtained a position in project control at Bruce Power in 2017. This was a contract position administered through an agency. The applicant says that a mandatory requirement for the position was that she had to operate through a corporation, and she therefore setup a sole shareholder corporation in 2017. She reported income of approximately $42,000, which amount she paid to herself from her corporation. For each year after 2017, she has paid herself $45,000 per year and has reported that amount on her personal tax return.

[23] The respondent disputes that the applicant’s income is properly reflected by her reported personal income. For reasons I will detail below, I agree with the respondent on this point.

[24] The applicant took on most of the management of the parties’ finances, although she did not have her own bank account until after they moved to Kincardine and until then was reliant on the respondent to give her cash (the respondent denies this, but I accept the applicant’s evidence on this point). The applicant did not obtain a driver’s licence until after the parties moved to Kincardine, so until then she was reliant on the respondent to drive her places. However, once she had her licence, and as their daughter grew up, the applicant did most of the driving to their daughter’s extra curricular activities, including swimming, figure skating, gymnastics, and ballet. The respondent did drive their daughter to most of her robotics competitions.

Entitlement to Support

[25] The court’s jurisdiction for an award of spousal support can be found in section 15.2(1) of the Divorce Act. In making an award of spousal support, I must take into consideration the factors identified in s. 15.2(4):

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.

[26] The objectives of an award for spousal support can be found at s. 15.2(6):

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse 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.

All four objectives must be considered. “No single objective is paramount”: Moge v. Moge, [1992] 3 S.C.R. 813, at p. 852; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 35.

[27] The respondent submits that the applicant has failed to prove entitlement to support because:

A. A mere disparity of income does not automatically lead to entitlement. This point is made in the April 2016 Revised User’s Guide to the Spousal Support Advisory Guidelines (RUG), at p. 5; see also the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (SSAG), at s. 3.2.2.

B. The applicant failed to prove “exactly how [her] career was impeded by meeting and marrying Mr. Kalra and coming to Canada from India.” She “hasn’t proven what her career might have been if she hadn’t married Mr. Kalra,” and she “gave up nothing to marry the Respondent and emigrate to Canada.” (I am quoting here from oral argument.)

C. Given her condition, means and circumstances, which include $2,000,000 in assets [after equalization] and a $90,000 to $100,000 job, the applicant does not require more support from her husband.

[28] I reject these submissions as they are inconsistent with the factors and objectives for an award of spousal support set out in the Divorce Act and with the jurisprudence on spousal support.

A. Disparity of income

[29] It is true that a mere disparity of income does not automatically lead to entitlement. As the RUG notes, at p. 5, “More analysis is required: why is there an income disparity and how does this relate to the compensatory or non-compensatory basis for entitlement?” The guide goes on to set out the principles of entitlement and in doing so, identifies considerations that are strongly supportive of a compensatory claim in this case. It identifies common markers of compensatory claims, including: “being home with children full-time or part-time,” “being a ‘secondary earner’,” and “moving for the payor’s career.”

B. Causation

[30] The respondent’s argument and major theme that the applicant has not proven how her career was impeded by the marriage is not novel. In her concurring reasons in Moge, at p. 881, McLachlin J. (as she then was) noted, that “Parties sometimes argue that the economic disadvantage of their spouse was not caused by the marriage or its breakdown, or that her economic hardship was not caused by the termination of the marriage.” McLachlin J. identified that two of the subheads of s. 15.2(6) contain a causal component: “advantages or disadvantages … arising from the marriage or its breakdown” (s. 15.2(6)(a)) and “economic hardship … arising from the breakdown of the marriage” (s. 15.2(6)(c) [emphasis added]. However, she went on to say that “Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly.” I agree with the authors of Franks & Zalev’s This Week in Family Law, Family Law Newsletter (September 25, 2023) when they say that “compensatory spousal support is not … reserved for spouses who can prove that, but for the marriage, they would be earning a higher income at the time of separation.” Indeed, a support analysis from a long-term marriage is likely to be more focused on the consequences of the marriage breakdown than on the consequences of the marriage. However, “[t]here is no hard an fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown” [emphasis added]: Bracklow, at para. 36.

[31] In his written argument, the respondent referred to the general rule for the assessment of tort damages and tried to draw an analogy for spousal support. However, the analogy to tort law is inapplicable. Section 15.2 of the Divorce Act provides the considerations to be examined.

[32] In this case, the compensatory claim is strong. The parties arranged their life such that the applicant worked full time and the respondent took on the bulk of the childcare and domestic responsibilities. They worked in concert to increase their capital in that they both participated in acquiring and operating the rental properties, with the applicant taking a very active role in this regard. Throughout the marriage, the applicant subordinated her career in favour of the respondent’s career. The applicant readily meets the threshold for entitlement to support. The circumstance is parallel to that in Cassidy v. McNeil, 2010 ONCA 218, at para. 69, where the Court of Appeal said: “Over the 23 years of their marriage, the parties' expectations and interdependency would have evolved into an economic merger of their interests. That merger, together with the wife's somewhat compromised career path, meets the threshold of entitlement to spousal support” [footnote omitted].

C. Equalization does not cover it

[33] I also disagree with the argument that the respondent is not entitled to support because of the large equalization payment she received. The SSAG says at s. 12.6.2 that “the more compelling view that property and support are governed by distinctive laws and serve different purposes and that a high property award should not in and of itself dictate a significant reduction of spousal support.” (See also the RUG, at p. 67.) I am not persuaded that the applicant’s entitlement to spousal support is defeated by the large equalization she received. I have taken the parties’ wealth into consideration in determining quantum of support, although a significant component of their wealth is in investment properties and, as I will describe, there are difficulties in using the rental income in the determination of quantum of support.

Investment Income

[34] As indicated, the parties purchased several investment properties during their relationship. The parties divided the rental properties in reaching an agreement on equalization. They continue to earn rent from these properties. I would have thought that the rental incomes should be included in both parties’ income for the spousal support analysis. The income impacts both the “need” and “ability to pay” components of the analysis in that the rent the applicant receives reduces her need and the rent the respondent receives increases his ability to pay. However, I am disregarding the rental income for purposes of the support calculations for two reasons.

[35] First, neither party advanced the position that the rental income should be included in income for the support calculation. The applicant submits that because of the division of these properties, they have similar rental incomes available to them. Mr. Cohen’s DivorceMate calculations (CaseLines A2380) do not include it. Mr. Clayton suggested in oral argument that the respondent’s income should be considered to be in the range of $90,000 to $100,000, and his written argument does not address this issue. Mr. Clayton’s DivorceMate calculation (B1473) also does not appear to include the rental income of either party.

[36] Second, the evidence regarding the parties’ rental income left the amount unresolved, and I did not receive argument on which of two versions is correct.

[37] Exhibit 5 (A2021) includes a chart detailing the rent and rental expenses for each of the properties the parties currently hold. The applicant testified that the chart showed the latest approximate net rental income on each property. The respondent accepted it as accurate except: (1) he intends to move into one of the rental properties so that will end the rental income from it; and (2) for three years prior to trial he received no rent from a property in Detroit because the tenant stopped paying and could not be evicted under COVID rules applicable there; however, at the time of trial the unit was ready to rent again. The respondent also said earlier in the trial that the Telegram Mews property was owned jointly with his brother. Although title is exclusively in his name his brother had paid half the deposit. He did not explicitly indicate that the net rental income was shared with his brother, and it appears from his tax returns that it is not.

[38] From Exhibit 5, the net monthly rental income for the applicant is $1,089. Excluding the property the respondent intends to move into, the net monthly rental income for the respondent is $2,050.

[39] However, I received competing evidence during the respondent’s examination in chief. He was taken to his 2022 tax return. It includes a “Summary of Real Estate Rentals” (B654). He confirmed that this document showed the net rent for five of the properties the parties owned. Only the Telegram Mews property shows a positive net income ($2,461.48). To the best of my recollection, the inconsistency between this document and the summary in Exhibit 5 was not addressed in evidence or argument.

[40] There is one further complication. The respondent uploaded to CaseLines three documents setting out different calculations of the applicant’s income. I infer that the intent was to use these as demonstrative aids during argument to show calculations of the applicant’s income under various scenarios. The gross rental income is included in all three scenarios. The gross rental income is not an appropriate measure as the claimed expenses of the mortgage, property taxes, and condo fees are legitimate expenses against this rental income. The respondent did not provide a similar document to calculate his own income. In any event, the respondent did not refer to these documents during argument and therefore I do not think I should rely on them in any way.

[41] In the circumstances, I am disregarding the income from the rental properties in determining the range for spousal support but will include it as a consideration for determining the appropriate figure within the range.

Applicant’s Income

[42] The applicant argued that her income for each calendar year for support purposes should be based on her claimed personal income (the amount she has her corporation pay herself) plus the corporation’s claimed net income for the corporation’s fiscal year (October 31).

[43] The respondent argued that the applicant’s income should be based on her corporation’s revenue. I largely agree with the respondent’s position on this point.

[44] The applicant incorporated her company in 2016 and first operated it in 2017. Each year, the applicant provides a spreadsheet of her expenses to an accountant who prepares the corporate tax return. There is no issue with disclosure of her expenses. The respondent does, however, take issue with the propriety of deducting many of the applicant’s claimed expenses from income for purposes of determining her income in connection with her spousal support entitlement.

[45] As indicated, the applicant is the sole shareholder of her company. She is also its only director and its only employee. Its revenue is based solely on her efforts and its spending decisions are made solely by her. She works on contracts of a definite duration but without guarantee of renewal. She did not describe ever working for more than one “client” at a time. She is, in effect, a contract employee working for a single employer at a time through a corporation.

[46] The corporate tax returns include a General Index of Financial Information and T2 Schedule 125 Income Statement Information. These list the applicant’s claimed cost of sales and operating expenses in various categories. Apart from this, the corporation does not prepare monthly or annual financial statements. The applicant also provided a brief that listed her expenses and provided associated supporting documentation.

[47] The applicant did not commission an expert report to determine what income is properly attributable to her. To a large degree, expert evidence was not essential as the issues are generally understandable. Neither party called their accountant (who is the same person), even though I was told that the accountant would likely be a witness. Although not essential, an expert or accountant might have brought more objectivity to the applicant’s position. She was wildly wrong to suggest, for instance, that makeup, creams and lotions, clothes, manicures, and supplements (whether prescribed or recommended by a doctor or not) are properly deductible business expenses. They are not properly deductible for purposes of determining her income for support purposes. The applicant’s evidence on her expenses lacked credibility.

[48] In our current culture, everyone needs a computer at home, and everyone needs a phone. These expenses enhance lifestyle. The applicant said she has a separate personal computer and from her office computer, but her evidence about her claimed expenses must be viewed with skepticism in light of her efforts to justify unjustifiable expenses. I am not satisfied that she should be able to deduct the cost of her computer or phone.

[49] I would not permit either party to deduct from income any part of their vehicle expenses or housing expenses such as mortgage interest, utilities, or insurance. These expenses enhance each party’s lifestyle and most of them would be incurred regardless of whether they worked from home. They both need vehicles to commute to work, and sometimes for attending locations they are required to attend for work. The applicant’s commute is longer, but she works from home three days per week so commutes only twice per week. They both need a home office, and while the applicant needs this more than the respondent, her residence is very small, and she derives personal benefit from her home office and likely from much of her home office equipment.

[50] In addition, I was not persuaded that the applicant’s claimed meal and entertainment expenses are properly deductible from her income for legitimate marketing or business purposes. Many of the claimed expenses were in small amounts such that it would appear she paid only for her own meal or coffee, as opposed to buying a meal or coffee for a client. She did not adequately explain how these expenses were legitimate marketing directed towards helping her generate income. She did not establish that these were business as opposed to personal expenses.

[51] I would allow only a few of the applicant’s claimed expenses. She is apparently required by her contract to have liability insurance, but this amounted to only $588 in 2020, $264 in 2021, and $210 in 2022. She is required to buy safety boots. This was included within a $300 expense under the heading “uniforms” in 2022. I would allow this expense as it was required for the applicant’s employment and presumably no other purpose. Under the heading “uniforms” in 2020 there is an expense of $3,208. This was not adequately explained so I would not allow it. I would allow the accountant fees of $500 each year. The applicant said these relate to tax return preparation for the corporation.

[52] The applicant’s corporation pays the employer’s portion of CPP contributions. This amounted to $2,179 in 2020, $2,622 in 2021, and $2,366 in 2022. In comparison, the respondent’s employer would pay its required CPP contributions based on the respondent’s income so in fairness perhaps the applicant should be able to deduct this. On the other hand, the parties will each benefit from these contributions eventually and receive them back by way of benefits. I did not receive expert evidence or argument on this point, and I am unable to resolve the countervailing considerations. As the applicant had the burden to establish the deduction, I will not allow it.

[53] In result, I would use the applicant’s corporation’s revenue for her income for support purposes, less the limited expenses allowed above. To reflect the impossibility of precision in the determination, I would round the number to a multiple of 1,000. Table 1 below reflects my determination of the applicant’s income for support purposes on this basis.

Respondent’s Income

[54] The respondent’s income determination is relatively straightforward. He is a T4 employee, and his sole employer is Bruce Power, a very large employer in Bruce County. His income is demonstrated with T4 slips. These also show the union dues he pays, which are deductible.

[55] The respondent’s T4 for 2023 was not available at the time of trial. From a review of available paystubs, it is apparent that the respondent’s pay increased by 7.12% from $77.4571 per hour on his April 6, 2022 pay stub (A1036) to $82.9714 on his May 17, 2023 pay stub (B619) (his most recent pay stub at the time of trial). I have used this increase to estimate the respondent’s 2023 income. Based on my own analysis, I do not think that extrapolating from his May 17, 2023 pay stub would yield an accurate estimate of his 2023 income.

[56] On the table below I have set out the respondent’s income for support purposes by rounding his T4 employment income net of union dues.

[57] The respondent claimed a loss under the heading net self-employment income on his 2021 return. He testified that after separation, because his pension was cut in half and he wanted income to supplement that loss, he decided to get his licence to sell insurance. He has not obtained his licence yet but did take steps to obtain it including taking some courses and getting a criminal record check. He has not generated any revenue through his claimed self-employment. He has, however, claimed expenses against his income including meals and entertainment, part of his car, and part of his occupancy costs (utilities) for his residence on the basis that he has an office in his home. The respondent submits that his expenses towards retraining are a consequence of the marriage or its breakdown and should be allowed as a proper deduction. I would not allow any of the deductions. I am not satisfied that the deductions are anything more than a tax strategy at this point. Any potentially legitimate costs truly directed towards a business and not likely to have been incurred anyway were not adequately established and appear minor.

[58] The respondent said he is eligible for retirement with a full pension in 2025. He will be 58 in 2025. He is considering retiring but has not yet decided on this. He mentioned that his medical issues may play a role in his decision. He missed considerable time from work for depression and stress-related concerns.

Placement within the Range

[59] The following factors support using a figure that is higher within the SSAG range:

• The applicant has a strong compensatory claim, given the length of time that she took primary responsibility for childcare. This favours the high end of the range: Wharry v. Wharry, 2016 ONCA 930, at para. 95.
• The respondent has a strong ability to pay support.
• The respondent has 25 paid days of vacation per year plus three floater days, three weeks of paid sick days, generous benefits the applicant will no longer be able to access, and an employee share purchase program. The applicant enjoys none of these advantages.

[60] The following factors support using a figure that is lower within the range:

• The applicant has a solid base of employment income, as well as rental income, and an absence of compelling need.
• The need to maintain a work incentive for the respondent is a factor in that the respondent will soon have an option to retire. If his marginal income after payment of support is reduced too low, he will have less incentive to continue working and more incentive to retire. This concern is ameliorated by the respondent’s relatively high income but increased by the fact that he will soon reach an age where he is entitled to a full pension.
• As discussed above, the large equalization payment did not disentitle the applicant but is a factor in assessing quantum. The SSAG states, at s. 9.6: “If the recipient receives a large amount of property, the low end of the range might be more appropriate.” For example, in Chutter v. Chutter, 2008 BCCA 507 (leave to appeal to the S.C.C. refused), the B.C.C.A. overturned the trial judge’s finding that the appellant was not entitled to support but found that the appropriate quantum of support was well below the low range SSAG figure.
• The applicant takes advantage of her self-employed status to aggressively reduce her tax. While the respondent does the same, he does so to a lesser extent.
• Encouraging self sufficiency is also a factor, but self-sufficiency “is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation”: Fisher v. Fisher, 2008 ONCA 11.

[61] Balancing the foregoing considerations, support at between the low end of the range and the middle of the range is appropriate.

Application

[62] The table below reflects my determination of the applicable monthly support amounts. For the applicant’s 2023 income, I used the average of the previous three years. For the respondent’s 2023 income, I used his 2022 T4 income ($148,669.06) and increased it by 7.12% as described above. I then subtracted the average of his union dues for the previous three years, and then rounded.

Table 1 - Income and Spousal Support Determination

Year	Applicant’s Income for Support Purposes	Respondent’s Income for Support Purposes	Monthly Spousal Support Awarded
2020	109,000	139,583	950
2021	96,000	138,256	1,350
2022	91,000	147,463	1,800
2023	99,000	158,000	1,900

Retroactive Support

[63] The applicant claims retroactive support from the date of separation on May 3, 2020. She acknowledges that the respondent should receive credit for certain amounts that have been paid (a payment of $10,000 and $2,000 per month since the Bloom J. order of July 8, 2022).

[64] The respondent argues that if the applicant is entitled to support, it should be prospective only from March of 2021. He argues that the applicant had access to the joint bank account until then (and this coincides with issuance of the application). Mr. Clayton also noted that the application at para. 2 only asks for support commencing February 1, 2021. However, on closer review, I noted that in para. 3 of her application the applicant asks for $25,116 in retroactive spousal support, so the claim has been properly advanced. She also advanced this claim with a calculation of it in her opening statement delivered months before the trial.

[65] Regarding the argument that the applicant had access to the joint account until March of 2021, there is no dispute that, before separation, the parties used the joint account for family expenses and many expenses associated with their rental properties, as well as to receive rental income. There is also no dispute that both parties had access to the account until at least March of 2021. However, it was not established that the applicant used the joint account for significant amounts of personal expenses after separation. As such, the applicant’s post-separation access to the account does not detract from her retroactive support claim. I would award retroactive support beginning on the start of the first full month after separation: June 1, 2020.

[66] The amount for retroactive support is calculated in the table below.

Table 2 - Retroactive Support Calculation

Year	Months	Monthly Amount	Total
2020	7	950	6,650
2021	12	1,350	16,200
2022	12	1,800	21,600
2023+	14	1,900	26,600
			71,050

[67] The support amounts up to December 31, 2022 need to be adjusted to reflect the fact that the respondent can no longer deduct spousal support from his 2022 (and before) income and the applicant no longer has to declare it as income in her 2022 (and before) income. Counsel are to calculate and consent to the net of tax amount to be paid and, if they cannot agree, send me further submissions in writing.

[68] Prejudgment interest calculated in accordance with the Courts of Justice Act is payable on the net amounts owing from time to time.

Lump Sum Future Support

[69] The respondent put his mental health in issue to support his position that he may not be able to continue working. This in turn supports his position that a lump sum award for spousal support is not appropriate. I am not persuaded that the respondent’s mental health is such that there is a substantial risk of prolonged disability. However, I agree that an award of lump sum spousal support is not appropriate.

[70] The respondent sought to admit two letters from 2022 written by his psychiatrist, Dr. Obikaonu, “to whom it may concern.” The respondent submits that the letters corroborate that he has been seeing Dr. Obikaonu about mental health issues and specifically, depression. These letters are both brief. The first letter from February of 2022 indicates that the respondent had a diagnosis of major depressive disorder with co-morbid anxiety. It requested workplace accommodations. The second letter from September of 2022 says that the respondent had a mood disorder and was medically unfit to work at that time for several weeks. The parties agree that Dr. Obikaonu would be a participant expert under the Family Law Rules if he was qualified as such. The respondent served a notice under s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, that he intended to rely on these letters, and he sought leave to introduce them. However, the notice is dated June 2, 2023, just days before the start of this trial.

[71] The applicant objected to this evidence on the basis that Dr. Obikaonu was not available for cross examination, so it was not possible to, for instance, ask him what information the respondent provided, or to question the basis for the diagnosis let alone to ask details about prognosis. In addition, my order from the TMC stated that the respondent anticipated obtaining an expert report to deal with prognosis and likelihood of future disability due to his mental health concerns, and this was to be served by February 15, 2023.

[72] I reserved my ruling on the admissibility of the two letters and said I would decide and provide my reasons in this judgment.

[73] The applicant’s objections to the reports are valid and, on this basis, I decline to admit them. The clinical chart of Dr. Obikaonu might have been admissible as a business record if notice was served under s. 35 of the Evidence Act. In this way the applicant might have avoided the effect of my order requiring service of expert reports by February 15, 2023. However, that is not the process that was followed. Also, even though the reports may have been available well before trial, the lateness of the Evidence Act s. 52 notice afforded the applicant little chance to formulate her strategy in response. She may have elected to summons Dr. Obikaonu herself.

[74] In any event, if I had admitted the letters, they would add little to the overall evidentiary picture.

[75] The respondent also called Chandra Tripathi as a witness. He was acquainted with both parties. He said he learned about the parties’ marital dispute about a year ago. He was called apparently to show that the respondent has discussed his marital problems with Mr. Tripathi and Mr. Tripathi has observed that the respondent is stressed. Again, this adds little to the evidentiary picture.

[76] The evidence about the respondent’s mental health is limited. I cannot conclude that he will be unable to continue his job as a result of his mental health, or even that there is a substantial risk that because of his mental health he will have to retire early.

[77] The applicant asks me to make a lump sum spousal support award for the net present value of ten years of support. She submits that the respondent was controlling during the relationship and points to text message conversations after separation in which he threatened to close their joint account and to have his investment advisor take away the respondent’s spousal RRSP. He said she was making him “psycho” and “dangerous” (A1982). There has been extensive litigation between the parties already and unless a lump sum award is made, the possibility of further litigation is very real. She says there is a need for a clean break.

[78] The respondent opposes a lump sum award on the basis that it would be a wealth transfer and because there is a substantial risk that “the means and needs of the parties will change over time”: Davis v Crawford, 2011 ONCA 294, at para. 68.

[79] Although I do not accept that there is a substantial risk of disability for the respondent, I do agree that the future means and needs of the parties are difficult to predict. The respondent is 57 years old, will soon be eligible for a full pension, and works for a large employer. The applicant is a contract worker with no guarantee of continuous contract renewal.

[80] In addition, in my view the factors that might support of a lump sum award are not compelling. I agree with the respondent that it would not be appropriate in this case to make a lump sum spousal support award for future support.

Duration

[81] The parties were married for over 23 years. The SSAG suggests, at s. 7.5, that where the marriage is longer than 20 years or where the recipient’s age plus the duration of the relationship is greater than 65, an indefinite award is appropriate. There must be a reason to depart from this guideline: Djekic v. Zai, 2015 ONCA 25, at para. 9. Both these rules are applicable here. I see no reason to depart from the guideline.

Disposition

[82] This court orders:

1. The respondent shall pay the applicant retroactive support from June 1, 2020 to and including February 1, 2024 in the amount of $71,050, less amounts paid to date, and adjusted for income tax considerations as described.

2. The respondent shall pay the applicant prejudgment interest on the net amounts owing from time to time, calculated in accordance with the Courts of Justice Act.

3. The respondent shall pay the applicant ongoing support in the monthly amount of $1,900 per month.

4. All other claims are dismissed.

5. If the parties cannot resolve the issue of costs, they may make written costs submissions of not more than three pages plus offers, bills of costs, etc. Submissions are to be filed by February 15, 2024. If needed, reply costs submissions of not more than two pages may be filed by February 19, 2024.These deadlines may be extended on consent but I ask that counsel please inform me if they agree to extensions.

Chown J. Released: February 5, 2024