Reasons for Judgment

Court File No.: 11692/20
Date: 2025-03-31
Ontario Superior Court of Justice

Between:
Rona Elizabeth Scott, Applicant
and
Thomas Ryan Scott, Respondent

Appearances:

• R. Sandy Bruce, for the Applicant
• James Battin, for the Respondent
• Phaedra Klodner, Agent for the Office of the Children’s Lawyer

Heard: December 11, 12, 13, 19 and 20, 2024 at Woodstock; written argument completed February 7, 2025

Heeney J.:

Introduction

[1] This is a divorce proceeding, and the overall issues are parenting time, child and spousal support, both retroactive and ongoing, and equalization of net family property.

[2] There are, however, several sub-issues within each category. The applicant’s closing submissions contain a comprehensive list and analysis of the issues in dispute, and I propose to deal with them in the order in which they appear in that document.

Background

[3] By way of brief background, the parties began cohabitation in 1997, and were married on July 17, 1999. This was a traditional marriage, in which the respondent was the primary breadwinner, and the applicant, after the birth of the third child, mostly stayed at home to raise the children and manage the household. They separated on September 30, 2019, and there is no possibility of a reconciliation.

[4] There are four children of the marriage, namely Astin, born in October, 1999, Alexis, born in September, 2001, Ava, born in June, 2010, and Alissa, born in August, 2013. They have been in the primary care of the applicant since the separation, although the two oldest have been independent adults over the past several years. The respondent has had no parenting time with the children since July, 2022, and the children have no wish to visit with him at the present time, although Alissa has, at least as of November 2023, held out the prospect that she might wish to see him in the future, occasionally for a few hours, once a month or so.

[5] Other background facts will be referred to as they become relevant in the issue-by-issue discussion below.

Divorce

[6] The grounds for divorce have been established, and the respondent consents to a divorce order being granted.

[7] Judgment for divorce shall issue, effective 30 days from this date.

Decision-Making Authority

[8] The applicant seeks sole decision-making authority over the children Ava and Alissa. An order is not required for the two older children, as they are now adults.

[9] The respondent agrees that the applicant should have sole decision-making authority, although he suggests in his proposed draft order that he and the applicant “may consult with each other regarding decisions for the said children”. He proposes that the applicant have the final decision in the event of a disagreement, subject to his right to bring the matter to court for resolution.

[10] There is no dispute that this is a high-conflict case, and the parties are completely unable to communicate with each other. There is a history of violence perpetrated by the respondent on the applicant, dating back to 2000, and leading up to an incident in 2020 when, I find, he threw urine-soaked pajamas at the applicant. There was also a relatively recent event in 2023 that occurred at an outdoor event in Otterville, called “Wingding”. The applicant and her boyfriend were at the event with some of the children. The respondent also happened to be there and, I find, engaged in harassing and belligerent behaviour towards the applicant and her boyfriend, witnessed by the children. This included verbal abuse, and drawing his index finger across his throat in a slicing motion, in a threatening fashion, and culminated in the respondent throwing a beer at the applicant’s boyfriend. He is facing a charge of assault with respect to that incident, which had not been dealt with at the time of trial.

[11] He has also become obsessed with what I will find, below, to be the delusional belief that the applicant has been earning millions of dollars over the past 10 or 15 years as a porn star, and that the two oldest children have joined her in this endeavour. This has been an enormous source of emotional pain and humiliation for the applicant, who denies these allegations in the strongest possible terms, as does Alexis, and has helped to drive a permanent wedge between the respondent and the children, who strongly object to the respondent's scurrilous and baseless accusations against their mother.

[12] It is clear from the affidavit of the clinician Barbara Dyszuk, who interviewed Ava and Alissa for purposes of these proceedings, that the children are happy and well-cared for in the applicant’s primary care. In my view, the applicant has demonstrated her ability to make necessary decisions in the best interests of the children in the six years that have elapsed since the separation. Given the circumstances above, any requirement for consultation with the respondent would only lead to further conflict.

[13] The OCL supports an order for sole decision-making authority in favour of the applicant.

[14] A final order will go that the applicant will have sole decision-making authority concerning the children Ava and Alissa.

Primary Residence and Parenting Time

[15] For the same reasons, I am satisfied that it is in the best interests of the children, based on the factors enumerated in s. 16(3) of the Divorce Act, that their primary residence be with the applicant, and an order will go in that regard. It is not necessary to examine those factors in detail, because the respondent does not dispute this order.

[16] The applicant seeks an order that the respondent have parenting time with Ava and Alissa, in accordance with the views and preferences of the children. The OCL supports this position. Ms. Dyszuk’s affidavit sworn November 18, 2024 was filed as an exhibit at trial, and reflects her findings from her several meetings with Ava and Alissa.

[17] Ava was very clear in her views that she does not want to spend any time with her father, nor does she want to receive any gifts or cards from him. She does not want him to get any of her school report cards either. Her reasons for these feelings include the respondent’s maltreatment of her mother, as outlined above, as well as her own fear of the respondent arising from his angry treatment of Ava herself.

[18] Alissa shares Ava’s concerns about her father, and is particularly upset about his treatment of the applicant. She said “Dad says bad things about Mom, he says she’s a bad mom. She is not a bad mom.” She recounted her last visit with the respondent, where she was sleeping on a mattress on the floor. The respondent put his pit bull dog in her room, because there were 5 other dogs in the house as well, which made the house smell bad, and the dogs didn’t get along. The pit bull bit Alissa on the hand and head, and she cried. The respondent’s response was to tell her to just go back to sleep. After that incident, Alissa decided she was not going to see him again.

[19] When asked, during interviews in 2023, if she would like to spend any time with her father, she allowed that maybe she could see him “a wee little bit”. She thought that might involve spending an hour or two, once a month, with him, in a public place with adults around. The views of the children, including this window of opportunity to see Alissa, were communicated to the respondent and his counsel, Mr. Battin, at the disclosure meeting that took place on November 8, 2023. The applicant was supportive of this proposal. Ms. Klodner, as counsel for the OCL, sent letters to Mr. Battin on December 3, 2023, January 9, February 8 and March 22, 2024, asking for a response to Alissa’s proposal, so that parenting time could be arranged. No response was forthcoming, and no parenting time was ever arranged.

[20] At the final meeting with the two children on November 8, 2024, preparatory to the trial, Ms. Dyszuk spoke with Alissa about her being willing to have a wee bit of time with the respondent, and asked whether that had happened. She shook her head and said “no”. When asked how she is feeling now, Alissa said “I really don’t want to see him anymore. At first I was disappointed and hurt that he didn’t want to see me but now it’s fine. I’ve thought about it, and I really don’t want to see him, especially after Wingding.”

[21] As Ms. Klodner put it, Alissa kept a “window of opportunity” available for her father and he chose not to open it.

[22] The respondent, in his closing submissions, does not oppose an order that his parenting time be “subject to the wishes of the children”. However, that concession was made in the context of asking for an order for parenting time on alternate weekends from Friday to Sunday, plus mid-week and other time with the children.

[23] In my view, it would not be in the best interests of the children, particularly with regard to their strong, consistent and independent views and preferences, as well as concerns for their physical, emotional and psychological safety, security and well-being, to force them to spend time with the respondent against their wishes.

[24] There is nothing to be gained by making the order for detailed parenting time sought by the respondent, when it is abundantly clear that both girls want no parenting time whatsoever.

[25] An order will go that the respondent shall have parenting time with Ava and Alissa in accordance with their views and preferences.

Passport Applications and Travel Consent

[26] The applicant seeks an order that the respondent’s consent to obtain the children’s passports, and his consent for them to travel abroad, be dispensed with. There is a reason for this. Both girls have expressed a wish to travel, and take advantage of opportunities to do so with their grandparents and cousins. Ava, in particular, is very gifted in basketball, and has considered going to Florida in the future for training.

[27] The applicant completed passport applications for both children and sent them to the respondent, through his counsel, for his signature. No response was ever forthcoming.

[28] The OCL supports this request. During cross-examination by Ms. Klodner, the respondent was asked whether they could eliminate one issue for trial, namely the passport issue, and provided him, on the witness stand, with an opportunity to consent to execution of the passport applications. He refused.

[29] It seems to me to be obvious that the respondent is using this issue as a means of exerting some control over the applicant and the children, as opposed to having a principled reason for refusing to cooperate. He raised a concern about the applicant leaving the jurisdiction and not returning. That is, I find, groundless. She has lived in the matrimonial home with the children since the separation and wants to remain there. The children go to school in that area and are doing well, and have many friends in the area. The applicant’s parents live nearby, and her place of employment is nearby. The girls’ two older siblings reside nearby. There is simply no conceivable risk that the applicant would flee the jurisdiction with the two young girls, particularly now that she has final orders for sole decision-making authority and primary residence in her favour, without the constraints of scheduled parenting time for the respondent.

[30] In my view, it is in the best interests of the children that they be free to travel when the opportunity arises. I am not satisfied that the respondent has any intention of cooperating to allow that to happen.

[31] An order will go dispensing with the necessity for the respondent’s consent for passport applications for Ava and Alissa, and with the necessity for his consent for the girls to travel anywhere, including outside Ontario or Canada.

Child Support

[32] The applicant is claiming the table amount of child support for Ava and Alissa, both ongoing and retroactive.

[33] Not long after the separation, the respondent and applicant agreed that he would maintain the mortgage payments on the matrimonial home, pending its sale, in lieu of paying support. This was confirmed in a consent order by Aston J. dated October 8, 2020, made at a settlement conference. It states the following:

Pending the sale of the matrimonial home the respondent will continue to maintain all mortgage payments, in lieu of monthly support, but without prejudice to the right of either side to revisit the issue and seek an adjustment.

[34] Both parties now seek an adjustment, whereby the amount of support (both child and spousal) that should have been paid, from the time of the separation until the present time, will be calculated, and that sum will be compared to the amount that has been paid by the respondent, or by his mother, on account of the mortgage during that same period of time. If there is an underpayment, in that the applicant’s 50% share of the mortgage payments are less than the support that should have been paid, it will constitute arrears of support, which will be payable by the respondent. If there is an overpayment, in that the applicant’s 50% share of the mortgage payments exceed the support that should have been paid, that difference will be payable by the applicant to the respondent.

[35] Counsel have treated this in their closing submissions as a “post-separation adjustment”, but it isn’t really. It is simply the calculation of retroactive support payable, as against credits that the respondent is entitled to claim towards support, resulting in either arrears of support or an overpayment of support.

[36] The parties have agreed that the respondent, or his mother, have paid a total of $114,787.66 on the mortgage from the separation until the end of 2024. The respondent paid 50% on his own behalf, as a joint owner. The other 50% was paid on behalf of the applicant, and represents the credit he is entitled to claim towards his support obligation. That credit amounts to $57,393.83.

[37] The respondent claims that he should only be liable to pay child support in the table amount, based on his actual income during the period in question. He calculates that to be $29,395.68. He argues that no spousal support should be payable at all. After giving him a credit for the mortgage payments of $57,393.83 towards that child support obligation, the respondent claims that an overpayment is due to him from the applicant in the amount of $27,998.15.

[38] The applicant argues that the respondent was working full-time at Toyota Motor Manufacturing Canada in Woodstock (“Toyota”) throughout the marriage, for a period totalling about 20 years. He was fired from that job effective March 5, 2021. The reason for his termination was that he was absent from work since January 7, 2021, and failed or refused to respond to three letters from Toyota requesting that he provide “reasonable evidence” to substantiate his absence. She claims that from that date to the present time the respondent has been intentionally underemployed, such that income should be attributed to him in the amount of $75,000 per annum, representing his average earnings from Toyota from 2016 to 2020.

[39] After imputing that income for purposes of calculating child support, the applicant claims that the respondent should have paid $1,139 per month, which is the monthly table amount for two children at an income of $75,000 per year. Thus, up to the end of January, 2025, his total obligation for child support should have been $72,896.

[40] After crediting the respondent with his mortgage credit in the agreed-upon amount of $57,393.83, the applicant claims that the respondent is in arrears of child support in the net amount of $15,502.17.

[41] The applicant claims an additional sum for retroactive spousal support, but that will be dealt with below.

[42] The issue to be determined, then, is whether the court should impute income to the respondent or, instead, calculate retroactive support based on his actual earnings during the period in question.

[43] The respondent’s income, from 2016 forward, is as follows:

• 2016: $92,518
• 2017: $85,832
• 2018: $75,810
• 2019: $77,946
• 2020: $50,079 (which includes income from Toyota and wage loss replacement benefits)
• 2021: $5,497
• 2022: $146
• 2023: $33,632
• 2024: $58,150

[44] It is those income figures that the respondent used in calculating the child support he should have paid, in support of his claim for reimbursement of an alleged overpayment of support in the amount of $27,998.15, as outlined above.

[45] As is evident, the respondent had a secure and well-paying job at Toyota, which paid him in the range of $75,000 to $92,000 per year up to and including 2019. His income was lower in 2020 because he was off on sick leave periodically. In 2021 his income disappeared almost entirely because of the termination of his employment at Toyota. As will be seen below, he received a substantial inheritance from his grandfather’s estate in or around October 23, 2020. That explains why he did not work at all throughout the rest of 2021, 2022, and into 2023, and chose instead to live off of his inheritance.

[46] He finally obtained a job at Trackless Vehicles in Courtland, ON, and earns about $29 per hour. He expects to earn $58,150 from that job in 2024, and presumably will earn that much or somewhat more in 2025.

[47] Section 19(1)(a) of the Child Support Guidelines provides as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[48] The applicant, in her closing submissions, relies upon three cases in support of her contention that income should be imputed. The first is Drygala v. Pauli. Gillese J.A., speaking for the court at para. 23, stated that the court is required to consider three questions in addressing s. 19(1):

In my view, in applying this provision, the trial judge was required to consider the following three questions.

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[49] In considering whether the parent was “intentionally” under-employed or unemployed, Gillese J.A. gave the following guidance:

Read in context and given its ordinary meaning, “intentionally” means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work. [emphasis added]

[50] The corollary to the emphasized portion of this passage is that the section does apply where the payor’s employment is terminated through some fault or act of their own.

[51] However, there is no requirement of bad faith that must be proven, such as an intention to evade paying child support: see para. 29. There must be a rational basis for the income figure to be imputed, in that it must be grounded in the evidence: see para. 44.

[52] The next case relied upon by the applicant is Daciuk v. Daciuk, 2023 ONSC 70. There, the father was an untreated alcoholic, whose substance abuse had serious effects on his home and work life. His employment with Dofasco was terminated due to his numerous work absences and a failure to communicate with his employer regarding his absences. Before termination, Dofasco attempted to stage an intervention, and offered assistance programs, but the father declined to participate.

[53] In that case, Kurz J. held that the father was intentionally under-employed for having lost his job. Significantly, he held the following, at para. 70:

The Respondent was not fired because he is an alcoholic. He was fired because of his frequent failure to attend work and his refusal to meaningfully engage with his employer regarding those absences.

[54] Had the father attempted to argue that his alcoholism amounted to a medical disability that justified a decision not to work, Kurz J., at para. 69, outlined the high bar that must be met to succeed in such a claim:

That being said, Sherr J. [in Lindsay v. Jeffrey, 2014 ONCJ 1] made it clear that compelling medical evidence is needed to make the claim of medical disability. As he wrote at para. 40: “[c]ogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.” Absent such evidence, the court should reject such a claim.

[55] Kurz J. imputed income to the father in the amount of $127,307 per annum, which represented the average of his best five income years.

[56] Finally, the applicant relies on Tone v. Tone, 2020 ONSC 2965, where income was attributed to the payor because he lost his job “through his own misconduct” in failing to provide medical documentation to his employer to justify his ongoing absence.

[57] The respondent cited no authorities in his closing submissions to challenge those relied upon by the applicant. He simply submitted that, based on the medical evidence he filed, the decrease in his income was reasonable given his mental health circumstances.

[58] I can categorically say at the outset that the medical information filed by the respondent is exceedingly weak, and falls far short of meeting the high bar outlined above. That evidence consists of the following:

• A note from his family doctor, Dr. Andrew, dated May 15, 2021, was filed, which says only the following: “Ryan is off work due to medical illness since January 7, 2021;
• An email dated July 19, 2021 from Dr. Andrew was filed, which stated that he began seeing the respondent on October 7, 2019 for symptoms of depression and bereavement since his father’s death from suicide in February, 2019; that he was off work for mental health issues from October 7, 2019 to December 5, 2019, and again from February 10 to June 1, 2020; he had a relapse of depression in October, 2020, due to family issues relating to his wife and children which were deeply upsetting for him, and was off again from October 5, 2020 and returned to work January 4, 2021; during this period he was under additional stress due to his cell phone being hacked and his stored information deleted, which he felt was done by his wife and her partner; he saw a psychiatrist, Dr. Robinson, on December 4, 2020; and, he spoke to Dr. Andrew’s partners in late January, 2021 concerning right ear pain and muffled hearing;
• Dr. Andrew concluded this email by offering the opinion that “from October 5, 2019 until January 4, 2021, Ryan had been off work due to significant mental and medical health issues, which are well documented”;
• A report from Gavin Michaels, dated May 21, 2021, was filed. He is a Family & Trauma Therapist, who was working with the respondent on issues relating to his father’s suicide. He stated that counselling is ongoing for emotional management issues of anxiety and depression. No opinion was offered (if indeed the therapist was qualified to offer one) as to any nexus between the respondent’s emotional issues and his ability to work.

[59] It is noteworthy that all of this medical evidence was obtained by the respondent well after his employment had been terminated by Toyota. It contains no cogent medical opinion from a qualified physician that from January 7, 2021 forward the respondent was unable to work. Furthermore, it contains no opinion that, from that same date forward, he was unable, by reason of a medical disability, to deal with and respond to requests from his employer for proper medical evidence justifying his absence from work.

[60] Accordingly, I reject the respondent’s submission that the decrease in his income was reasonable given his mental health circumstances.

[61] More importantly, the respondent’s submissions miss a very important point. He was not fired due to his medical disability. He was fired because he failed to communicate with his employer, and respond to their requests to provide proper medical evidence to explain his continued absence from work. It is indistinguishable from Daciuk, above, where the father was not fired because of his alcoholism, but because of his failure to communicate and cooperate with his employer. It is also indistinguishable from Tone, above, where the payor lost his job “through his own misconduct” in failing to provide medical documentation to his employer to justify his ongoing absence.

[62] If the respondent’s medical evidence had provided him with a reasonable excuse for missing work (which I have found it did not), he ought to have obtained it in a timely fashion and provided it to Toyota, as they repeatedly requested him to do. Instead, he simply ignored their demands, and did nothing. He did not obtain any medical evidence until after his employment had been terminated. By that point in time, it was too late.

[63] The fault of the respondent, then, lies in his careless and cavalier handling of the situation, and his failure to act promptly to provide Toyota with the evidence that they needed to have in order to justify his absence from work. He gave no convincing answer in cross-examination to explain his lack of action, other than to say that “it wouldn’t have made a difference, the way the company is”. There is no evidence to support that statement. Toyota appears to have gone beyond the call of duty in providing repeated extensions, and giving the respondent every chance to explain his absence from work, as the following will illustrate:

• In their first letter of January 25, 2021, written after the respondent’s unexplained absence from work since January 7, 2021, the senior manager of human resources pointed out that attempts to reach him to discuss a potential return to work had not been successful. It was pointed out that Toyota’s Attendance Policy clearly states that Toyota will assume that Team Members absent from work for three days have terminated their employment. Notwithstanding that policy, they gave him a further five days from the date of the letter to provide them with proper medical evidence to support his ongoing absence. He did not do so;
• Toyota wrote to him again on February 22, 2021, and again required him to contact them and provide reasonable evidence to substantiate his absence, by no later than March 1, 2021, or his employment would be terminated. This amounts to a unilateral 4-week extension by Toyota of the previous deadline of January 30, 2021, and a significant extension of date upon which the Policy states that he is presumed to have terminated his employment, which is January 10, 2021;
• A final letter was sent on March 5, 2021, pointing out that he failed to contact them as requested in the letter of February 22, 2021 and provide evidence to justify his absence, and as a result his employment was terminated effective immediately. Even then, they took the courtesy of advising him of his right to pursue the termination through the concern resolution process.

[64] For the above reasons, I find that the respondent was intentionally unemployed. To respond to the second question posed by Drygala, above, his intentional unemployment has nothing to do with his reasonable educational needs. In the exercise of my discretion, I conclude that income should be attributed to him, from the beginning of 2021 to date. I am satisfied that the income figure proposed by the applicant of $75,000 per year is reasonable, and is grounded in the evidence as to his average earnings over the 5 years preceding the termination of his employment.

[65] As to the quantum of child support payable during that period, I have already referred above to the applicant’s calculations that the respondent’s total obligation for child support should have been $72,896 up to the end of January, 2025. The respondent did not dispute those calculations in his closing submissions. However, I have determined that this figure requires adjustment, because it attributes income of $75,000 per year to the respondent beginning in 2019, and uses a monthly support figure of $1,139 throughout. There is no reason to attribute income prior to 2021, because that is the year I have found the respondent became intentionally unemployed. His income in 2019 was actually $77,946, and that figure, not $75,000, should be used for the last three months in which support is payable. This generates a monthly table amount of $1,181, not $1,139, and therefore increases the amount of child support by $126 for those three months.

[66] As for 2020, the respondent’s actual income was $50,079, not $75,000. It was lower that year because he was off work for part of the year, receiving income replacement benefits. Since there is no reason to attribute income for that year, his actual income should be used. That generates a table amount of $756 per month, not $1,139. Thus, his support obligation for 2020 is $9,072 not $13,668.

[67] Those adjustments reduce the total child support that should have been paid, up to the end of January, 2025, by $4,470, bring that figure to $68,426. One further adjustment is required to bring this number current to the end of March, 2025, by adding two months of support at $1,139, bringing the total child support that should have been paid to $70,704.

[68] As to the respondent’s mortgage credit, it requires a similar adjustment. His accepted figure of $57,393.83 was current only to the end of 2024. To bring it current to the end of March 2025, it is necessary to add 3 mortgage payments of $886 per month, and then multiply by 50%, which amounts to an additional $1,329, bringing his total credit to $58,722.83.

[69] Thus, the net amount of child support that should have been paid, from October, 2019 to the end of March, 2025, is $11,981.17.

[70] A final order shall go that the respondent shall pay arrears of retroactive child support for the children Ava and Alissa, for the period up to the last day of March, 2025, in the amount of $11,981.17.

[71] The remaining question is what order should be made for ongoing support. The applicant asks that the respondent’s income continue to be imputed at the rate of $75,000 per year. The respondent asks that ongoing child support be the table amount based on his actual income.

[72] The imputation of income is a matter of judicial discretion. The court “may” impute income “as it considers appropriate in the circumstances”. I have already found that it is appropriate to impute income from the time the respondent essentially engineered the termination of his own employment, to the present time. However, I am not persuaded that it is appropriate to do so indefinitely.

[73] The respondent has acted reasonably in obtaining a good job at Trackless Vehicles. It pays $16,850 per year less than the attributed income from his former job at Toyota, but it is still a reasonable income. The respondent has paid a great deal for his foolishness in having lost his previous job, through the retroactive child support order I have just made. At some point, the debt should be considered paid. In my view, and in the exercise of my discretion, it is appropriate to attribute income to the respondent until the end of 2025, which will bring it to five complete years of attribution. Thereafter, he should pay child support based on his actual income.

[74] A final order will go that the respondent shall pay ongoing support for the children Ava and Alissa as follows:

A) Commencing April 1, 2025, and monthly thereafter up to and including the first day of December, 2025, the amount of $1,139 per month. This is the table amount for two children, based on the respondent’s imputed annual income of $75,000;

B) Commencing January 1, 2026, and payable on the first day of each month thereafter, the amount of $886 per month. This is the table amount of support for two children, based on the respondent’s annual income for 2024 of $58,150. This figure may well increase, depending upon the respondent’s actual income for 2025.

Spousal Support

[75] The applicant worked in the dietary department of a nursing home until three weeks before the birth of third child, Ava. That was her last paycheque. Thereafter, she was a full-time mother and homemaker, taking care of their three, then four, children. She did not work again, other than earning some modest income from part-time cleaning. After the separation, she started working again in 2021, as an apprentice in a beekeeping operation. She works with the owner, George, learning the art and craft of beekeeping and providing pollination services.

[76] She has her own business, operating under the name of Queen R Beesnest. Her plan is eventually to fully run George’s business for him, while continuing to expand her own business. 2024 was the first year she had her own hives. She loves the work and feels that the possibilities are endless. She hopes to earn six figures at some point in the future.

[77] At present, her earnings are modest, which is not surprising since she is still learning the business. Her net income for income tax purposes for the past three years is as follows:

• 2021: $4,325
• 2022: $12,189
• 2023: $12,729

[78] She had no income for 2019 or 2020.

[79] She acknowledges her obligation to become self-supporting within a reasonable time. Her beekeeping business has not generated sufficient income to do so yet. While she loves the business and believes that it will provide her with a good future, she agrees that the respondent should not be saddled with the consequences of having to wait for those dreams to be realized, when she could be working at another job, earning minimum wage at the least. For that reason, she takes the position that income should be attributed to her for purposes of spousal support at the minimum wage level, beginning in 2022. I find that approach very reasonable, and I accede to it.

[80] There is, in my view, no question that the applicant is entitled to spousal support. She gave up any career aspirations she may have had, and devoted her time to childcare and household management, from 2010 to the date of separation. This enabled the respondent to work outside the home and progress with his career at Toyota, while developing marketable skills. She has been economically disadvantaged by reason of her role in the marriage. There is a substantial disparity in the parties’ annual income and in their income-earning capacity.

[81] Divorcemate calculations have been submitted with the applicant’s closing submissions. They attributed income to the respondent of $75,000 per year, and assumed that the table amount of child support was being paid by the respondent, in the amount of $1,139 per month. The applicant’s actual income for 2019, 2020 and 2021 was used, but attributed income at the minimum wage level was used for 2022 onward. The following table summarizes those calculations:

YEAR	RESPONDENT’S INCOME	APPLICANT’S INCOME	MID-POINT MONTHLY SPOUSAL SUPPORT	TOTAL SUPPORT FOR THE YEAR
2019	$77,946	nil	$1,204	$3,612
2020	$75,000	nil	$862	$10,344
2021	$75,000	$4,325	$597	$7,152
2022	$75,000	$30,000	nil	nil
2023	$75,000	$31,200	nil	nil
2024	$75,000	$34,420	nil	nil

[82] I am of the view that using the Divorcemate calculations, which are based on the Spousal Support Advisory Guidelines, is an appropriate and efficient method to calculate retroactive support. I accept the applicant’s calculations, except for 2020, which contains the same error identified above with respect to child support. It attributes annual income of $75,000 to the respondent, despite the fact that the triggering event for attribution did not occur until 2021. Thus, the respondent’s actual income should have been used.

[83] I have redone the Divorcemate calculation for 2020, using an income figure for the respondent of $50,079. The calculation automatically calculated child support at $756 per month, which is the number used above. The mid-point spousal support generated was $351 per month. I find that to be the appropriate number. Thus, spousal support for 2020 should be $4,212 not $10,344. After this adjustment, the total spousal support payable for the period in question is $14,976.

[84] Spousal support for 2022 and subsequent years is nil, not because the applicant is not entitled to receive it, but because she has attributed income to herself which reduces the quantum, and because child support has priority over spousal support. The respondent is not earning sufficient income, even at the attributed level of $75,000 per year, that he can afford to pay spousal support, given his child support obligations. This situation will not change in 2026, when his actual income is used, unless he experiences a significant increase in his income.

[85] A final order will go that the respondent shall pay retroactive spousal support, for the years 2019 to 2021 inclusive, in the amount of $14,976. No order is made for ongoing spousal support.

Section 7 Expenses

[86] Having established the income of the parties, I am in a position to make an order regarding the manner in which s. 7 expenses under the Guidelines are to be shared. No order is being sought for the payment of outstanding expenses, but this will determine how they will be shared going forward.

[87] An order will go that s. 7 expenses shall be shared by the parties. For 2025, based on attributed income of the respondent of $75,000, and attributed income of the applicant of $34,424, the respondent shall pay 68.5% of s. 7 expenses and the applicant shall pay 31.5%.

[88] For 2026 onward, based on the respondent having annual income of $58,150 and the applicant having attributed income of $34,424, the respondent shall pay 62.8% of s. 7 expenses and the applicant shall pay 37.2%. This is subject to adjustment as the respective incomes of the parties change.

Post-Separation Adjustments

[89] This is the next issue that is identified in the applicant’s closing submissions. As already noted, the item that was flagged by the applicant for consideration of this issue was the credit in favour of the respondent for having made the mortgage payments in lieu of support. That has been dealt with already, in calculating the arrears of child support owing.

[90] However, at p. B641 of Ex. 9, the respondent included an additional claim under the category of “Post Separation Adjustments” for occupation rent of $63,000.

[91] This document was included in what can only be described as a “document dump”, that was done by counsel for the respondent, in the middle of the night before this trial was to commence. Two thick books of documents, amounting to many hundreds of pages, were sent by counsel for the respondent to counsel for the applicant, a mere matter of hours before the trial was to start. As such, the applicant had no notice that this issue was going to be advanced, so she had no opportunity to research any applicable law or marshal any relevant evidence.

[92] A claim for occupation rent was never pleaded by the respondent, and no amendment to his Answer/Claim by Respondent was sought. No other notice was ever given that this claim would be pursued at trial.

[93] No evidence was put before the court by the respondent to support this claim. It only came up at all during the respondent’s testimony when counsel for the applicant raised a few questions about it during cross-examination.

[94] In the respondent’s closing submissions, no claim was advanced for occupation rent, either under the heading “Post Separation Adjustments” or elsewhere. Furthermore, the only item shown as a post-separation adjustment in the Comparison of Net Family Property Statements filed with the respondent’s closing submissions is the mortgage payment credit for child support. I take this as a tacit admission that this claim was not properly before the court and is not being pursued.

[95] The claim for occupation rent never having been pleaded, it will not be considered by this court.

Health/Dental Benefits and Life Insurance

[96] When the respondent worked for Toyota, he had extended health and dental benefits available to him, that provided coverage for the applicant and the children, as well as group life insurance. They are not provided for him at his new place of employment.

[97] However, his obligation to provide coverage remains, should benefits become available to him, either at his current job or in the event he changes employment. It is also important that life insurance be available as security for the support of the children, in the event of his death while support is still payable.

[98] Accordingly, a final order will go that the respondent shall maintain coverage for the applicant and the children Ava and Alissa on all extended health and dental coverage that is, or becomes, available to him as part of his wage package, for so long as he is obligated to pay child support. He shall also designate the applicant as the irrevocable beneficiary on any group life insurance policy that is, or becomes, available to him as part of his wage package, for so long as he is obligated to pay child support.

Equalization of Net Family Property

[99] The respondent prepared a Form 13C Comparison of Net Family Property Statements, filed as Ex. 7. In his closing submissions, he submitted another version of this document, in which several of the numbers had been changed. In one case, this was as a result of the deletion of an alleged jointly held debt in the amount of $47,250, that the respondent, through his counsel, abandoned during the course of the trial. In another, a change was made regarding the value of the applicant’s 2010 Dodge Caravan, which will be dealt with below. The other changes involved the treatment of the deduction for notional income tax regarding assets that have tax liabilities attached to them, such as RRSPS and pensions. Notional deductions for income tax were netted out in the value of the asset, as opposed to being shown separately as a liability. In Ex. 7, the gross value is shown in the asset portion of the document, and the notional income tax deduction is shown in the debt portion. This is, in my view, the correct approach, and it will be followed here.

[100] In the discussion below, I will use Ex. 7 for reference purposes. In that document, the areas where the parties are in disagreement are identified, and I will deal with each one of those in turn.

[The remainder of the judgment continues with detailed analysis of household goods, bank accounts, the promissory note, and other property and equalization issues, as well as costs.]

T. A. Heeney
Released: March 31, 2025