De Goey v. Magagna, 2026 ONSC 1177
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN DE GOEY Applicant
– and –
MARINA MAGAGNA Respondent
COUNSEL: John Bruggeman, Counsel, for the Applicant Paul Pellman, Counsel, for the Respondent
Heard: November 10, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 27, 2025 and December 29, 2025
JUSTICE K. SAH
REASONS FOR DECISION
Overview
1This trial pertains to a spousal support review application. The original spousal support order does not delineate the terms for review. Entitlement, quantum, and duration are reviewed de novo.
2When the trial started, child support was also at issue. To their credit, the parties resolved section 7 expenses for child support mid-trial. This court must determine if there should a repayment of Table child support.
Background and Litigation History
3When this matter was first before the court, the parties settled all issues in dispute. The settlement was incorporated into two orders. Those orders being the final order of Justice Pinto dated March 29, 2021 (the “Pinto order”) and the final order of Justice O’Brien dated May 26, 2021 (the “O’Brien order”).
4Although marked as a final order, the Pinto order was not truly a final order dispensing will all matters. The Pinto order required the applicant to pay the respondent spousal support of $10,000 per month, fixed and non variable, from January 1, 2020, to April 1, 2023, based on his income of $350,000 per annum and the respondent’s imputed income of $35,000.
5The Pinto order required the parties to exchange financial disclosure in order to review spousal support as of May 1, 2023, and states that any new quantum shall commence May 1, 2023, and not be retroactive.
6Following the Pinto order, the parties continued settlement negotiations as a trial was scheduled to proceed on April 26, 2021.
7The parties engaged several experts in the first proceeding. Those experts were engaged in the settlement discussions and attended some court attendances. One of those experts testified in this trial.
8As set out in further detail below, the parties participated in exit pretrials with the court and several meetings were held and correspondence was exchanged between counsel all of which led to the parties reaching the terms of settlement. The settlement was merged into Minutes of Settlement, and the terms were incorporated into the O’Brien order.
9The O’Brien order amended provisions of the Pinto order as it related to child support and reiterated the review clause set out in the Pinto order. The O’Brien order also amended the quantum of child support paid.
10The O’Brien order further specified that all other claims, including costs, were dismissed.
11Both the Pinto and O’Brien orders were obtained on consent and after extensive negotiations between counsel and the involvement of the court.
12Within the first proceeding, the parties agreed that the respondent would purchase the applicant’s interest in the matrimonial home (the “Totteridge property”). This agreement was reflected in an interim order that gave the respondent a defined period to complete the buyout. When the respondent failed to do so within the allotted timeframe, the applicant brought a motion seeking an order that the Totteridge property be listed for sale.
13The respondent continues to the reside at the Totteridge property to date. The applicant rents a townhome, and he shares expenses relating to same with his new spouse.
14At the time that the Pinto and O’Brien orders were made, the applicant was 57 years old, and the respondent was 53 years old. Currently, the applicant is 62 years old, and the respondent is 58 years old.
15The parties began cohabiting in 1993 and were married in 1995. They separated in September 2017. They have one child born from their union who is currently 25 years old. To protect her privacy, she will be referred to as S. or the child in this decision.
16To date, the applicant has paid spousal support for eight years on the 24-year period of cohabitation/marriage.
17Within this proceeding, the court ordered the termination of child support payable for S. a final basis as of April 30, 2024.
Issues to be Determined
18The issues to be determined at trial are follows:
Is the respondent entitled to on-going spousal support?
If so, what is the income for support purposes of each party?
If the answer to #1 is yes, what is the appropriate quantum and duration of spousal support payable by the applicant to the respondent?
Has there been an overpayment of Table child support and if so, in what amount? How should the overpayment, if any, be credited to the applicant?
General Legal Framework
19As set out in the Spousal Support Advisory Guidelines: The Revised User's Guide (“SSAG RUG”), at chapter 14, a review is often described as a hearing de novo. Following Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, the issues to be reviewed may, and indeed should be, delineated by the terms of the review: see Westergard v. Buttress, 2012 BCCA 38, 14 R.F.L. (7th) 1, and MacCarthy v. MacCarthy, 2015 BCCA 496, 69 R.F.L. (7th) 253.
20In this case, neither the Pinto order, O’Brien order, or the Minutes of Settlement described or set out the terms of review. As such, this court is required to determine entitlement, quantum, and duration on consent of the parties.
21Section 15.2 (1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides that a court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
22Section 15.2 (4) requires the court to take into consideration the condition, means, needs and other circumstances of each spouse when assessing a claim for support, 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.
23Section 15.2(6) sets out the objectives of a spousal support order which 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.
Analysis of Each Issue
Entitlement
24The applicant takes the position that the respondent is not entitled to spousal support from May 1, 2023, onwards on the basis that she did not suffer any economic disadvantage as a result of the period of cohabitation/marriage.
25In the alternative, the applicant argues that the respondent has already been fully compensated by way of the equalization payment, his contributions to the respondent’s investment property (the “Humberside property”), that she has failed to take reasonable steps towards self-sufficiency, and that the respondent failed to use her assets to generate any income.
26The respondent claims entitlement to compensatory and non-compensatory spousal support. She argues she did not work outside the home and assisted the applicant with his successful career which resulted in him being the primary breadwinner for the entire marriage. The respondent further argues she was primarily responsible for childcare and focusses on her mental health struggles during the marriage and after.
27The parties commenced their relationship when they were 25 and 29 years old. They lived together before marriage. When they first began cohabiting, the applicant was just starting out his career as a financial advisor. The respondent was working for Ontario Hydro, having earned an undergraduate degree in industrial engineering.
28The respondent worked for Ontario Hydro first earning $34,000 per year and, upon ending her employment in 1995, was earning approximately $55,000 per year.
29The applicant has an undergraduate degree from the University of Guelph and obtained a graduate degree in public administration from Carleton University. His career as a financial advisor began a few months after the parties began to cohabit.
30The parties were just starting their lives and careers when they met. They married in 1995.
31There is no dispute that during the parties’ marriage the applicant took care of all outdoor responsibilities for the home including and taking out the trash, watering the garden, fertilizing and mowing the lawn, shoveling the snow, raking the leaves, and clearing the eavestroughs.
32In the fall of 1997, two years into their marriage the respondent commenced studying for her Masters in Business Administration (“MBA”).
33The respondent became pregnant in the summer of 1999 and completed her MBA in November 1999. She was four to five months pregnant at the time that she completed her MBA.
34She did not work in any formal capacity after having earned her MBA.
35Their child was born in 2000. When they separated, the child was 17 years old and starting her last year of high school.
36When the child was eight years old, she joined the Canadian Children's Opera Company (“CCOC”).
37It was the respondent’s evidence that this extracurricular activity consumed considerable time and energy on her part having to transport the child multiple times per week to attend practices and rehearsals.
38The applicant does not dispute this but claims that he too was involved with the CCOC. His evidence focused mainly on his role on the Board of Directors and three years as President of the Board. He claims he also took the child to practices, concerts, and private singing lessons.
39I prefer the evidence of the respondent with respect to the extent of time and energy she invested with the child in pursuit of this activity. She gave detailed evidence about practice times, locations, and the way in which they commuted to practice and rehearsals.
40In the summer of 2005, the applicant joined Burgeonvest Bick Securities Limited (“BBSL”) where he worked for ten years. BBSL was sold to Industrial Alliance Securities (“IA”) in December 2015.
41In late October 2018, IA terminated the applicant’s employment without cause. The applicant claims he was terminated despite his exemplary service, including having been awarded the Donald J. Johnson Award for his lifetime contribution to the financial planning profession in Canada. He claims that his asset level in January 2018 was $100 million of assets under management and that his client base was happy with his services.
42This demonstrates that, at the time of separation, the applicant was successful and performing well.
43The applicant obtained many certifications and designations before and during the marriage. He claims the respondent played no role in helping him obtain his prominent designations.
44The applicant also claims the respondent was not involved in his work at his various firms. The respondent disputes this.
45I prefer her evidence to his because various emails from 2008 to 2010 established that the respondent corresponded with other professionals on behalf of the applicant, organized his taxes and liaised with the accountant, updated and maintained the applicant's website, provided feedback on the applicant’s articles and letters to clients, and acted as a marketing assistant based on the performance review completed by the applicant himself.
46From this, the court concludes that the respondent played a role in the development and maintenance of the applicant’s career and business following the birth of their child and prior to separation.
47The applicant does not dispute that the respondent proofread his articles as rational of his payment of a nominal $12,000 salary. This court concludes she did more than just proofread.
48While there are inconsistencies about the parties’ agreement or understanding about the roles they would assume in the marriage, the documentary evidence is persuasive. The respondent was involved in the applicant’s business to a greater extent than he admits.
49The evidence conflicts with the applicant’s assertion that the parties had an agreement from the outset that they would be a two-income family, each contributing 50-50 to the domestic and child rearing responsibilities and each contributing to family finances.
50Following the parties’ separation, and the applicant’s dismissal from IA, he secured a new employment at Wellington-Altus Private Wealth (“WA”).
51As further particularized below, when he secured employment at WA, the applicant was granted options to receive 55,278 shares in 2019 and 2021 upon him meeting certain asset and revenue targets. He received the first tranche of 27,639 shares in 2019.
52In 2010, when the child was approximately 10 years old, the parties purchased the Totteridge property, the former matrimonial home.
53The Totteridge property was significantly renovated during the marriage, and this was of considerable importance to the respondent.
54The respondent wanted a newly renovated home and took on this project, personally acting as project manager.
55The respondent was responsible for managing contractors, meeting with interior designers. There is no dispute that the renovation went off without a hitch, on time and on budget, to the respondent’s credit.
56The renovations to the four-bedroom bungalow were significant and included creating a walk-in closet for the master bedroom, installing new hardwood flooring on the main floor, and completely renovating the kitchen.
57In or around 2013 to 2014, the respondent suffered from a deep depression with psychotic features. In early 2014 she was hospitalized for approximately four weeks. The respondent was put on antipsychotic medication, antidepressants, and sleeping aids.
58The respondent relapsed in October 2015 when she was once again admitted to hospital.
59In or around 2016, the respondent joined a tennis club close to the Totteridge property. In the spring of 2016, she made allegations against one of the tennis professionals alleging inappropriate touching. She commenced a lawsuit and spent $80,000 in legal fees. Judgement against the defendant was never obtained.
60The respondent claim she continued to work for the applicant from 2015 to 2017 when he announced he wanted to separate.
61Two to three months after the parties separated, the respondent signed an agreement of purchase and sale to purchase 261 Humberside Ave. in Toronto, Ontario (the “Humberside property”).
62With the consent of the applicant, the respondent withdrew the sum of $65,000 from a line of credit registered against the then matrimonial home to pay a deposit for the purchase of the Humberside property. At this time, the applicant was responsible for all expenses pertaining to the Totteridge property.
63The respondent did not reside in the Humberside property, rather, she rented it from approximately January 2018 to January 2022 at which time she sold the property which had increased in value by $575,000.
64The Humberside property was sold for $1,229,767.35. This amount was used to pay off the mortgage on the home equity line of credit on the Totteridge property that was transferred to the respondent as a part of the financial settlement reached in 2021.
65In the first proceeding, the Totteridge Road property was appraised at $1,830,000 as of July 19, 2018. The best evidence before the court is that the Totteridge Road property was worth $2,200,000 as of January 8, 2025.
66Four months after the parties separated, the respondent’s father died, and she inherited the sum of $918,156.
67The applicant argues that the respondent can utilize assets she now possesses to fund her lifestyle and that he should not be obligated to support her given her change in financial circumstance.
68In 2023, the respondent was diagnosed with attention deficit disorder (“ADD”). She is currently taking medication for sleep, depression, and ADD.
69The respondent maintains she is unable to work on a full-time basis. She has seen career counsellors who agree with her assessment. The respondent also currently cares for her aging mother who relies on her significantly.
70Entitlement can be based on compensatory, non-compensatory (needs-based), or contractual grounds: see Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 15.
71Here, the court will consider the two distinct conceptual bases for entitlement to spousal support: on the basis of need and on a compensatory basis. The contractual basis is not relevant.
72Focussing first on needs-based support, one of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence but rather should be assessed through the lens of viewing marriage as an economic partnership. In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which they were accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support themself in light of their income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 27, quoting Marinangeli v. Marinangeli, [2003], 66 O.R. (3d) 40 (C.A.).
73In the case of needs-based support, economic hardship resulting from the breakdown of the marriage is a factor, not necessarily the roles assumed during the marriage. See Bracklow.
74Turning to compensatory support, its purpose is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. See: Gray, at para. 38.
75Compensatory claims for support acknowledge that sometimes, spouses may make sacrifices in the realm of employment for the sake of domestic considerations. In doing so, the sacrificing spouse may forego educational and career advancement opportunities. At the same time, these sacrifices may enhance the earning potential of the other spouse who is free to pursue economic goals because the other spouse is tending to such domestic matters: see Moge v. Moge, [1992] 3 S.C.R. 813, at p. 861.
76Based on the examination of all evidence at trial, this court finds the respondent to be entitled to support based on the following findings.
77During the parties’ 24-year cohabitation, the respondent has not worked in a formal capacity other than to assist the applicant with his business. The applicant started in the business of financial advising when the parties started to cohabit.
78During the term of the cohabitation, the applicant’s business flourished, his assets under management increased, the parties had a baby, and they renovated their home.
79There is no dispute that the child’s CCOC commitment was time intensive, and the schedule was demanding. The respondent was available and consistently took the child to a majority of the practices and rehearsals as she was not the main breadwinner or employed on a full-time basis.
80There is no dispute that the home renovation was extensive and time consuming, and that the respondent took the lead to ensure the renovation was a success. The respondent’s employment situation allowed her to assume the domestic responsibility for the family.
81The applicant was able to succeed in his profession and win awards, in part, because the respondent was responsible for the majority of the childcare and home renovations.
82Despite being highly educated, having an engineering degree and an MBA, the respondent did not actively utilize this education during the parties’ cohabitation, other than when working with the applicant as an assistant of sorts and for his benefit.
83Because the respondent’s employment was secondary to the applicant, he was able to maximize his earning potential. Given the roles assumed in the marriage, and with hard work, the applicant’s reputation developed as did his book of business and practice.
84The respondent did not singularly adopt a life of leisure and recreation during the parties’ marriage. No evidence was presented about any expressed or implied disapproval on the part of the applicant during the relationship. The applicant’s career flourished and while he might now say it was their agreement that they each contribute expenses and childcare equally, the evidence presented suggests he did not oppose the respondent’s decision to join a tennis club, assume the majority of the care of their child, or continue to assist him with his business and career path.
85The applicant did not tender persuasive evidence to support his position that he was unhappy with the arrangement during the marriage.
86Further, the parties’ arrangement allowed them the confidence to conduct a $300,000 renovation which the respondent oversaw, albeit using borrowed funds from a line or credit and the respondent’s father. The applicant was able to repay the borrowed amounts from earnings from his business.
87Throughout the marriage, the parties enjoyed the economic success of the applicant based on the roles they assumed. The respondent was financially dependant on the applicant. Pre-separation, the applicant continued to do well despite changes to his employment. The parties benefited from a child who thrived, was gifted, and engaged in extracurricular activities.
88Post-separation, the applicant continues to do well, work hard, and maintain and develop his business. The applicant was and continues to be free to pursue his economic goals. However, following the breakdown of this marriage, the respondent is left with major disadvantages, including that she is left with little to no work experience and a dated education. The circumstances of their marriage impeded her career advancement and are compounded by the respondent’s mental health struggles.
89It is clear that the respondent suffered economic hardship following the termination of the marriage.
90Throughout the marriage, the parties’ partnership afforded the respondent a stable standard of living despite her outdated education and ongoing mental‑health challenges. Following separation, however, she lacks the capacity to support herself due to several limiting factors.
91A relevant factor in the analysis of entitlement of spousal support is the respondent’s health. During the marriage, when their child was approximately 10 years old, the respondent was hospitalized for at least four weeks for psychosis.
92Dr. Head, the respondent’s psychiatrist, testified at trial and the vast majority of his notes were before the court. Dr. Head first saw the respondent in March 2014 and he continues to see her to this day.
93Dr. Head testified as a participant expert, providing evidence based on the exercise of his skills, knowledge, training, or experience in relation to the respondent.
94Dr Head diagnosed the respondent with depression and anxiety. Her major depression diagnosis was found to be in remission from time to time, but she continues to see Dr. Head to deal with the stresses of life which include her feeling sandwiched because of the stress of caring for her elderly mother and caring for her daughter.
95The respondent testified about being the primary support for the parties’ child who suffers from mental health struggles of her own. The respondent testified that she puts the child first and supports her mentally, emotionally, and financially.
96The respondent further testified about the care she provides her elderly mother who is currently in a retirement residence. The respondent attends her mother’s home daily to assist her and her mother, given her dementia, only trusts the respondent.
97Post separation, Dr. Head also diagnosed the respondent with adjustment disorder and ADD, for which medication was prescribed.
98Dr. Head noted that the respondent had a history of depression with psychotic features and self reports of having a hard time organizing herself and lacks initiative.
99Dr. Head notes that when a patient is off from work due to mental‑health concerns, a graduated return is often used to assess their ability to adapt. Given that the respondent has not had gainful employment for many years, he indicates it is uncertain how she would adjust. He recommends structuring any initial attempts to promote success rather than failure, including a gradual re‑entry into the workforce, ideally beginning on a part‑time basis.
100The respondent’s mental health struggles speak to her need for support and acts as a limitation on her ability to support herself.
101Since separation, the respondent participated in two vocational assessments, one in 2019, and another in 2024. The assessments conclude that the respondent would only be able to work part-time and that her ability to retrain and find employment was curtailed due to her current responsibilities to her mother and daughter.
102The court heard evidence from the vocational assessor regarding ageism being a factor in the workplace and the respondent’s anxiety and worry about going back to work after so much time.
103In summary, the respondent’s compensatory spousal support entitlement recognizes that upon the breakdown of a 24-year relationship wherein the parties’ finances were intertwined, there should be an equitable distribution of the economic consequences of the marriage between the parties.
104A compensatory claim recognizes that while the applicant enjoyed an uninterrupted career, the respondent was never employed (except nominally by the applicant), assumed primary care of the child, and supported the applicant’s transition from firm to firm. The respondent was economically disadvantaged, and the applicant was advantaged by the marriage and its breakdown.
105However, in assessing the compensatory claim, the court must assess the respondent’s role post-separation. This assessment recognizes that the child was 17 years old when the parties separated. The respondent’s compensatory claim must be balanced by the lack of evidence of direct sacrifice made for childcare or rearing post-separation. Further, the respondent has not demonstrated that she lost any career opportunities post-separation.
106Post-separation, the respondent returned to school to retrain. The respondent took one course at Ryerson University, now Toronto Metropolitan University, to obtain a project management certificate. She quit the program without obtaining any credits. The respondent has not engaged in any retraining program since that time.
107Factors such as the respondent’s failure to meaningfully retrain, or actively look for employment in any of the eight years since separation when she was younger and ageism was less of a factor, or when her depression was in remission, and prior to the current obligations she feels responsible for, including caring for her elderly mother will be considered in determining quantum.
108The respondent’s entitlement to needs-based spousal support is measured against the marital standard of living of the parties. However, the weight to be afforded to that standard depends on the facts of each case.
109Here, the parties had a degree of interdependencies that could not easily be unraveled when the relationship ends: see Bracklow, at para. 30.
110According to Dr. Head, the respondent’s health-related challenges do not speak to a complete inability to work, but rather, a difficulty. Her mental health issues should not be considered any differently from a physical health challenge.
111Dr. Head advocated for a gradual reintegration into the workplace, but the evidence demonstrates that the respondent did not make any efforts until approximately February 2025 when she applied for a job at National Bank.
112The evidence demonstrates the respondent did not seek additional employment until several months later, committing only a few days per month towards her search for employment.
113With the inheritance she received and the proceeds of sale from the Humberside property, the respondent’s financial situation and, to some extent, her needs, changed.
114However, the mental health challenges that existed during the marriage and included a four-week period of hospitalization has not changed since separation. These factors, when balanced, speak to the existence of needs-based support.
115To conclude, the respondent’s entitlement to spousal support exists based on a compensatory and non-compensatory basis.
116Prior to determining quantum and duration, the income of the parties must be determined.
Income of the Parties
117During the first round of litigation which ended in 2021, the applicant’s income was set at $350,000 per annum and the respondent’s income was imputed at $35,000.
118In this litigation, the applicant did not hire an expert to assess his income, however, the respondent hired an Mr. Maisel as an expert for that purpose. The applicant responded with a limited critique of Mr. Maisel’s expert report.
119The respondent submits that the review clause in the 2021 order was in place because it was anticipated that the applicant’s income would increase given his start with a new employer, WA.
120The applicant submits the review was to consider the respondent’s efforts to seek out employment given the uncertainty about her future employment.
121Neither the Minutes of Settlement nor the Pinto or O’Brien orders specifically state the basis for review. There is no dispute that income does not need to be determined for any year prior to 2023.
122This court is required to determine each parties’ income for 2023, 2024, and 2025.
123The parties’ respective positions on the applicant’s income are as follows.
| YEAR | Applicant’s Position | Respondent’s Position |
|---|---|---|
| 2023 | $119,150.41 Per the participant experts report dated June 25, 2024, prepared by the applicant’s accountant, Mr. Ruben filed on consent. |
$3,402,000 Per Mr. Maisel’s expert report. This amount includes capital gains and gross ups from the WA shares. Income of $240,000 if the shares are excluded. Income of $1,347,850 if the capital gains are included with a gross up. The report includes several CRA accepted business expense deductions which were added back into income and grossed up. |
| 2024 | $318,187.39 Per line 15000 income on 2024 income tax return. |
$353,000 The applicant’s line 15000 income was $318,187 which included deductions of over $330,673. Gross professional income before expenses amount to $600,000. The respondent takes the position that many expenses should be added back to determine his 2024 income. |
| 2025 | $235,182 being the three-year average for income based on the years 2022, 2023, and 2024. | $425,000 Considering income earned totalled $491,000 for the period ending October 2025 and deducting home/office expenses, podcast expenses, and vehicle expenses. |
124The respondent proposes that the court use a three-year average using the years 2023, 2024, and 2025 to determine the applicant’s income for spousal support purposes for the period of May 1, 2023, to December 31, 2025.
125If the court decides to impute income to the applicant for support purposes, the applicant asks the court to consider the significant variations experienced by him in his income in the past few years and asks the courts take a three-year average income based on the years 2022, 2023, and 2024.
126The parties’ respective positions relating to the respondent’s income is as follows:
| YEAR | Applicant’s Position | Respondent’s Position |
|---|---|---|
| 2023 | $211,000 $60,000 of imputed income plus $151,000 of income that could be generated based on the assumption that she fully applies her investments and assets to earn income. |
$35,000 based on closing submissions and $50,000 based on SSAGs provided Imputed Income – due her health issues and lack of skills and experience. |
| 2024 | $211,000 $60,000 of imputed income plus $151,000 of income that could be generated based on the assumption that she fully applies her investments and assets to earn income. |
$35,000 based on closing submissions and $50,000 based on SSAGs provided Imputed Income – due her health issues and lack of skills and experience. |
| 2025 | $211,000 $60,000 of imputed income plus $151,000 of income that could be generated based on the assumption that she fully applies her investments and assets to earn income. |
$35,000 based on closing submissions and $50,000 based on SSAGs provided Imputed Income – due her health issues and lack of skills and experience. |
Applicant’s Income
Employment History
127Since separation, the applicant worked with three different companies. At the time of separation, IA employed the applicant. His employment there was terminated in November 2018.
128The applicant then obtained employment at WA where he worked as an employee until 2023.
129Since Spring 2023, the applicant has been employed with Design Securities (“DS”), as an independent contractor.
130In 2023, the applicant earned income from WA from January 2023 to May 2023 and from DS from June 2023 to December 2023.
The Experts
131For his 2023 income, the applicant relies on the opinion of his accountant, Mr. Ruben, who opined that his income was $119,150.41. Mr. Ruben did not testify but filed a report on consent of parties.
132The respondent retained Mr. Maisel to determine the applicant’s 2023 income and estimated 2024 income. Mr. Maisel opined that at the very minimum, the applicant’s income for 2023 was at least $240,000, excluding capital gains and the gross-up from the WA shares. With the inclusion of capital gains and security option benefits from the WA share sale, Mr. Maisel opined that the applicant's 2023 income would be $3,402,000.
133With respect to the WA shares, Mr. Maisel opined that if the two tranches were included in the full amount when determining the applicant’s 2021 income, then the full amount would be removed from his income calculation for 2023. To account for this, and Mr. Maisel included two scenarios within his report.
134I find Mr. Maisel provided balanced impartial evidence which I largely accept. His evidence regarding business expenses and double counting are addressed below together with this court’s finding on all issues in dispute relating to the applicant’s income.
135Mr. Rayson’s Limited Critique Report and his evidence raised four critiques of Mr. Maisel’s report and did not provide alternative or independent conclusions. As further set out below, Mr. Rayson’s critique report did not undermine Mr. Maisel’s evidence on the issues that were in dispute.
WA Shares and Capital Gains
136Upon commencing employment with WA in 2018, the applicant was granted options for 55,278 shares, divided into two equal installments ("tranches") of 27,639. These shares were contingent upon meeting specific revenue and asset targets:
Tranche 1: Received/Vested in 2019 and
Tranche 2: Received/Vested in 2021.
137The shares carried a deferred tax status. No tax was payable upon receipt; instead, the benefit was taxable only upon their eventual sale, provided they were held for at least two years.
138When the applicant was terminated from WA in 2023, he was required to sell his shares on the internal WA marketplace.
139A WA share was valued at $16.43 in 2019; the share value increased to $24.89 in February 2021, and increased again in May of 2023 to $32.27.
140Because the tax had been deferred, the sale triggered a significant taxable event on the applicant’s 2023 T1 General Income Tax Return: a taxable benefit of $1,151,258 and capital gains in the amount of $650,000.
141When the parties settled in 2021, the applicant claims the respondent took the position that the restricted shares had to be included in his income for support purposes in the years he received the shares, specifically 2019 and 2021. The respondent’s position in 2021 was supported by her expert, who was the same expert she retained in this proceeding.
142The applicant takes the position that the two tranches of shares he was granted from WA, which had both vested prior to the O'Brien order, were disclosed, discussed, and considered when the parties reached an agreement that was incorporated into their Minutes of Settlement and the O’Brien order.
143The parties agreed to fix the applicant’s income at $350,000 for support purposes. This figure was reached after considering all share-related disclosures.
144The parties underwent significant negotiations and extensive discussions prior to the settlement in 2021.
145They attended mediation in September 2018 and another mediation in December 2019.
146The parties continued to try to resolve the issues following those mediations and attended various trial management conferences and exit pre-trial conferences, sometimes with their experts.
147Several letters between counsel were exchanged setting out their respective clients’ position.
148Confirmations were prepared in advance of court attendances which further set out the parties’ respective positions.
149As part of the settlement negotiations and discussions, the respondent’s counsel spoke with corporate counsel at WA. This discussion took place at the end of March 2021. For reference, the Pinto order was dated March 29, 2021.
150During this call, the respondent was advised the applicant had not received the second tranche of share. However, the applicant did not have control of when the company found that he met his criteria for eligibility.
151The O’Brien order reiterated terms from the Pinto order as it related to the parties’ income and support payments. It also addressed settlement on the issues of equalization, the applicant’s tax liabilities associated with a forgivable loan received from his previous employer, post-separation adjustments, and retroactive child and spousal support.
152The respondent now seeks to include the 2023 sale proceeds as "new" income for support purposes.
153The applicant argues that to do so would be res judicata/cause of action estoppel since the treatment of these specific shares, including their vesting schedule and future tax implications, was a live issue during the 2021 negotiations.
154This court finds that the respondent had the opportunity to litigate their value then but chose to sign Minutes of Settlement fixing the applicant’s income at $350,000.
155She cannot now demand that the second tranche of shares be included in the applicant’s 2023 income for support issues simply because the deferred tax event has finally occurred. Further, the 2023 sale was not an "unforeseen" windfall; it was the realization of the exact asset disclosed in 2021.
156The respondent alleges the applicant delayed exercising the second tranche to deflate his income for the 2021 trial. There is no evidence of this allegation; the timing of the share issuance was controlled solely by WA’s corporate criteria, not the applicant.
157After the Pinto order was made and prior to the settlement the led to the O’Brien order, the respondent’s counsel suggested that would ask the court to set aside the Pinto Order, claiming it was based on "erroneous" income. However, the respondent abandoned this position and instead signed the Minutes of Settlement leading to the O’Brien Order, which reaffirmed the $350,000 income.
158The applicant provided full disclosure and even consented to the respondent’s counsel contacting a WA representative to satisfy herself about this issue. This type of conduct is not demonstrative of a party actively hiding assets or deliberately making misrepresentations.
159On March 31, 2021, the respondent’s counsel wrote to the applicant’s counsel asking the following:
If the disclosure provided was for the original tranches of shares assigned in November 2018, to which the applicant’s counsel answered in the affirmative.
If the applicant has been granted any additional shares, to which the applicant’s counsel disclosed that the shares doubled in February 2021.
If the applicant had cashed/sold any shares, to which the applicant’s lawyer responded that he had not.
If the applicant was given an opportunity to exercise additional options, to which the applicant’s counsel responded that he had not been given an opportunity to exercise any lookback options.
160The respondent had ample opportunity to make the necessary inquires and to investigate the tranches and to satisfy herself at the time that the 2021 settlement was achieved.
161The respondent clearly expresses regret about her settlement. She takes the position that had the applicant provided the shareholder agreement dated February 2019 during their 2021 negotiations, the negotiations would have gone differently.
162After the Pinto order was made and before the parties signed Minutes of Settlement leading to the O’Brien order, the respondent’s counsel prepared a confirmation form dated April 12, 2021, in anticipation for a trial arrangement conference scheduled for April 14, 2021.
163In that confirmation, the respondent’s counsel advised the court that the applicant’s income for support purposes going forward was a triable issue and a request was made that the presiding judge dedicate time to work with the parties on live issues.
164The confirmation submitted on behalf of the respondent noted that the previous Pinto order locking in both child support and spousal support for a three-year period was now erroneous. Within the confirmation, the respondent made a request that the Pinto order be set aside on consent failing which the respondent require an “immediate date” to move to set aside the final order. The confirmation set out that the respondent’s expert, Mr. Maisel, would be attending court.
165The parties appeared before Justice Shore on April 14, 2021. The Minutes of Settlement were signed two weeks later. There is no evidence that the respondent moved to set aside the Pinto order. On the contrary, the applicant’s income of $350,000 and the terms of both child support and spousal support were mirrored in Minute of Settlement and the O’Brien order.
166The respondent did not raise the issue of the WA shares after the Minutes of Settlement were signed. She did not move to set aside the settlement. She did not move to set aside the O’Brien order. No letters were sent by her counsel regarding the WA shares post-settlement, or after the O’Brien order was issued.
167The respondent’s claims that the Pinto order was made without pertinent information or disclosure about the shares is not supported by the facts. The Pinto order was made after the respondent’s counsel spoke to general counsel at WA.
168Even if the court were to accept the respondent’s position as stated above, she had acquired significant information prior to the making of the O'Brien order.
169The respondent claims confusion and uncertainty as to whether both tranches were included in the April 2021 negotiations when reaching the O’Brien order relating to spousal support.
170It is the respondent’s recollection that only the first tranche was dealt with, and it dealt with only child support.
171The respondent’s recollection does not accord with the written record. The respondent’s recollection was not set out in any of the court orders or the Minutes of Settlement or in any letter from her counsel.
172The respondent alleges that a share agreement was not produced until April 2021 and that the applicant misrepresented that the second share agreement was for the first tranches of shares when there were two share agreements. However, the settlement was not reached until April 28 or 29, 2021 when the parties signed the Minutes of Settlement.
173After signing the Minutes of Settlement and before the terms of settlement were incorporated into the O'Brien order dated May 26, 2021, counsel for the applicant wrote to counsel for the respondent summarizing the factual basis for the terms of support, including:
an explanation about the applicant’s 2021 income;
confirmed that the May settlement was a non-variation of the terms of the Pinto order as it relates to support and income;
confirmed that in February 2021 a further 27,865 WA shares (the second tranche in a slightly increased amount which was not disputed) vested with the applicant at a value of $24.89 per share for a maximum value of $693,507; and
confirmed that the value of the shares was already considered in the calculation of the respondent’s income for child and spousal purposes.
174Based on the foregoing, I find that the respondent was aware of the two tranches of shares and did not lack any information regarding their vesting before the O’Brien order was made. In fact, she was aware the second tranche vested, of the shares’ value, and counsel confirmed that the shares were considered in the calculation of his income for child and spousal support purposes.
175No evidence was tendered to suggest that the respondent or her counsel disagreed or disputed the statements made by the applicant’s counsel or moved to set aside the Minutes of Settlement or the O’Brien order. In fact, it was counsel for the respondent who submitted the Minutes of Settlement with the draft order via 14B Motion to obtain the issued O’Brien order.
176Both the respondent and her counsel had knowledge of both tranches of the WA shares and that they had vested prior to entering into the Minutes of Settlement on April 28 or 29, 2021.
177The respondent’s counsel’s own email, sent four days prior to the signing of the Minutes of Settlement, confirms that the respondent was not prepared to have any flexibility to exclude the shares from the spousal support calculation for both 2019 and 2021. The statement demonstrates that the inclusion of the shares for 2019 and 2021 were top of mind and the parties settled, nonetheless.
178In a letter sent from the respondent’s counsel dated days after the Minutes of Settlement were signed, the respondent confirmed that the Pinto order was an “imperfect solution to bring pause to the three years of acrimonious litigation which included three different senior counsel for [the applicant], multiple court attendances and two rounds of mediation”.
179The letter the respondent’s counsel sent following the signing of Minutes of Settlement acknowledged that the order, and thereby the income, was not reflective of the applicant’s support obligations but that the respondent accepts a temporary period of regrouping with improper support payments to permit the applicant to settle into his position at WA, see how the child does in her undergraduate studies, and permit both parties, until May 2023 to rebuild. There was no mention of the WA shares.
180Throughout the settlement negotiations, the respondent was assisted by counsel and her expert had access to information directly from WA.
181The applicant provided full and frank financial disclosure in preparation for the trial that was scheduled for April 2021, including details of the WA shares.
182The WA shares were included and/or considered and/or factored into the applicant’s income for 2019 and 2021 for child and spousal support purposes resulting in the O’Brien order.
183The court accepts the respondent’s evidence that both parties made concessions to resolve their case in 2021. Her confusion about the concessions made does not alter the court’s findings as set out above.
184For these reasons, this court rejects the respondent’s position as it relates to the WA shares.
Business Expenses and Office Efficiency
185There is a dispute regarding the applicant’s business expenses as they relate to his income for 2023 and 2024.
186Mr. Masiel, on behalf of the respondent, seeks to add and gross up several CRA accepted business deductions back into the applicant’s income. Mr. Maisel also opines that the office efficiency charge of $41,272.09 paid in 2023 was deducted from the applicant’s 2023 taxable income twice. Mr. Maisel calculated an adjustment to account for this alleged double deduction.
187The applicant disputes both the reasonableness of the business expense adjustments and the allegation that the office efficiency charge was deducted twice.
188On this issue, I take guidance from summary of law reviewed by Justice Penny, at paras. 151-157 of Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331 with internal citation omitted:
151Although the CSG apply only to child support, the courts have tended to rely on the determination of CSG income for spousal support calculation purposes as well. Whether spousal support or child support is at issue, the task is to determine an income level that fairly reflects the means or compensation available to the spouse or parent.
152Sections 18 and 19 of the CSG provide that the court is not bound by line 150 income reported to CRA for purposes of determining support. This is because the payor spouse’s income for income tax purposes may not be an accurate reflection of the money that the spouse has available for support payments. The fact that a business expense is “legitimate” for tax purposes does not mean that the same deduction is reasonable for support purposes.
153The case law reveals that car expenses, rent/home office, travel, meals/entertainment, phone/internet, insurance, and legal expenses all represent examples of expenses that have been “added back” to income for support calculation purposes. The amount added back can range from small percentages (20 per cent) to the full amount (100 per cent).
154It must also be noted that when a spouse has organized his or her finances so as to pay less tax than a salaried employee would pay, if the court proposes to add back business expenses to income for support purposes, the amounts added back must be “grossed up” for taxes to satisfy the consistent treatment objective of the CSG.
155In my view, the full amount of home office, legal, vehicle, and meals/entertainment deducted from the respondent’s gross income should not be deducted from the respondent’s income for support purposes. In addition, I do not think the respondent’s publication expenses, running at 9 to 19 per cent of the respondent’s gross revenue, can be regarded as reasonable for support purposes.
156Another way of looking at this issue is to assess whether total expenses running at 66.18 per cent, 56.99 per cent and 78.42 per cent of gross income for 2009 to 2011 for a small professional practice are reasonable.
157As noted, courts have added back up to 100 per cent of home office deductions, for example, grossed up for taxes. There is no scientific or absolute means of determining the right balance of expense deduction to gross revenue for a one-person law office. Whether by adding back specific, grossed up amounts or considering the overall reasonableness of the level of expenses versus gross revenues I am, in the end, required to determine an income level that fairly and reasonably reflects the compensation available to the respondent to pay support. Common sense suggests that expenses of 78.42 per cent of gross revenue are unreasonable and unsustainable.
189In early 2023, the applicant was an employee at WA. His WA commission that year was $148,421. On June 8, 2023, the applicant began working as an investment advisor at DS and earned commission/self-employment income in the amount of $78,397.
190That year, the applicant claimed expenses for the four and a half months he was employed with WA in the amount of $116,442 which is almost 80 percent of his employment income.
191The expenses included: accounting and legal fees, advertising and promotion, motor vehicle expenses, meals and entertainment, travel, parking, telephone, and office rent. The most significant expense, totaling $97,161, pertains to “other” expenses.
192These “other” expenses include office efficiency expenses and podcast related expenses.
193The $97,161 is broken down as follows: office efficiency for 2022 paid in 2023 in the amount of $41,272, office efficiency for 2022 paid in 2023 in the amount of $30,349, office efficiency paid in 2023 for 2023 in the amount of $20,075, and podcasts expenses of $5,465.
194Mr. Maisel opines that the office efficiency charge of $41,272 paid in 2023 was deducted from the applicant’s 2023 taxable income twice: once from his 2023 T4 from WA and once by inclusion in his 2023 WA employment expenses. This double counting was said to be inadvertent and as such, Mr. Maisel added back the amount of $41,272 into the applicant’s 2023 income.
195Mr. Maisel’s evidence about the double counting was not undermined on cross-examination. The critique report prepared by Mr. Rayson, on behalf of the applicant, simply suggested that Mr. Maisel should have provided the court with an alternate scenario regarding this double deduction and did not. Mr. Rayson claims Mr. Maisel overstated the applicant’s income by $88,814.
196However, in his testimony, Mr. Maisel advised the court that if it were to decide that the $41,272 was not double counted, the court could simply deduct $88,814 from both scenario one and scenario two numbers for the year 2023.
197No evidence was tendered to discredit Mr. Maisel’s evidence regarding the double counting. The court was directed to the documents which support his opinion. The applicant did not dispute these documents.
198Therefore, this court accepts the evidence on the issue of the double deduction. This court further finds that the expenses claimed are high, having considered the nature of the applicant’s professional activities and employment.
199This court accepts Mr. Maisel’s methodology calculating the tax gross up of personal/discretionary expenses for 2023. Expenses such as home office/rent expenses are routinely added back and grossed up, and it is accurate to assume that telephone expenses include personal use. The tax gross up on the assumed personal use/discretionary expenses is reasonable and not in dispute.
200It would be unfair and unreasonable to accept the applicant’s position that all of his expenses are allowable for the purpose of determining income for support, notwithstanding the fact that they are allowable for tax purposes.
201The exercise undertaken by Mr. Maisel was somewhat arbitrary as is often the case when adding back expenses and grossing up for support purposes. However, it fairly captured expenses claimed and calculated the gross up of $56,000 of personal discretionary expenses in 2023.
202Mr. Maisel provided the court with a mechanism to determine what level of personal expenses, if any, should be included in the applicant’s income, instructing how to account for every $1,000 of personal discretionary expenses that the court wants to add or reduce and how it impacts income. Despite this mechanism, no evidence was tendered to suggest that it would be appropriate for the court to undertake this calculation or how the court should conduct the calculation.
203Mr. Rayson did not challenge the amount of personal discretionary expenses or the gross‑up applied. He did, however, note that Mr. Maisel had not prepared a separate scenario on this point. Nonetheless, Mr. Maisel’s testimony on this issue was instructive, and the critique does not diminish the weight of the accepted evidence.
204To conclude, this court accepts that the applicant’s income in 2023 is as set out in scenario two of Mr Maisel’s report and his income will be set at $240,000 for 2023.
205Moving now to 2024, the applicant’s income tax return reveals gross professional income before business expenses was over $616,862. His line 15000 income was $318,187. His expenses amounted to $330,673.
206As was the case with the 2023 income, the respondent submits that many expenses should be added back to determine 2024 income.
207Mr. Maisel’s report was prepared before the applicant’s 2024 income tax return was filed, and he calculated his projected 2024 income based on ten months of income information and expenses for seven months of the 2024 year.
208The report includes some nominal revenue from dividends and investment interest and a projected commission income of $302,243. The projected income was calculated by annualized extrapolation based on the figures received.
209The projected gross income was $537,000. This is significantly less that then the applicant’s actual gross income of $616,863.38 as set out in his 2024 income tax return.
210For the expenses, Mr. Maisel had to “fill the gap” for five months in 2024 based on information from the applicant himself as to which expenses were continuing, and which were not.
211Based on information provided to him by the applicant, Mr. Maisel projected the applicant’s 2024 expenses to amount to $234,757, which represented 44 percent of his gross commission.
212According to the applicant’s income tax return, the applicant’s expenses represented over 53 percent of his gross commission.
213Mr. Masiel under projected gross revenue by almost $80,000 and under projected expenses by almost $96,000.
214Both the applicant and his new spouse testified about the applicant paying for half of the rent for the townhome where they reside.
215The applicant claims this half share on his income tax return. The respondent submits that a reasonable amount of rent as a business expense should be one third of his half or, one sixth of the total rent paid.
216The respondent further submits that the applicant’s podcasts expenses are excessive, and that there was no evidence tendered to support the position that the podcast assisted with the growth and development of his business. A podcast can be used as a form of self-promotion, however, the court did not hear any evidence as to how this directly related to an increase in revenue.
217I find the income as determined by Mr. Maisel is the more reliable and transparent approach. His analysis is grounded in figures the applicant provided and reflects a methodological assessment of the applicant’s income on the information available.
218I acknowledge that Mr. Maisel’s underestimation of revenue and expenses may result in a projected income that is too conservative or based on assumptions that do not match the applicant’s the real financial picture. However, I am satisfied that the assumptions used were reasonable, that he made appropriate adjustments for expenses paid through the business, and that his methodology aligns with established legal principles.
219Many business deductions are personal or discretionary, and the court routinely adds back expenses that reduce taxable income, but do not reflect actual ability to pay support.
220In comparing the two income figures, the court accepts the method that best reflects the applicant’s true ability to pay, even if the resulting figure is an underestimation. The respondent did not ask the court to recalculate the applicant’s income based on the information now available, nor it is not the court’s role to undertake such calculations.
221Of the two income figures advanced for 2024, the court prefers the expert’s approach. It is based on reliable information, uses projections that are logical and supported by the evidence, and properly distinguishes between personal and business expenses.
222Accordingly, the applicant’s income for 2024 is set at $353,000.
223Finally, the court turns now to the applicant’s 2025 income.
224The respondent submits the applicant’s income for 2025 should be set as $425,000, having regard for his income of $491,000 earned for the period ending October 2025 after deducting home/office expenses, podcast expenses, and vehicle expenses.
225The respondent submits that an additional $75,000 should be recognized as a business expense for 2025, in addition to the applicant’s payment to his assistant or colleague in the range of $85,000 to $90,000.
226The applicant asks this court to take a three-year average based on the years 2022, 2023, and 2024, which he calculates to be $235,182 based on his figures.
227As set out below, the court sees no issues with using a three-year average to determine the applicant’s income, as requested by the parties, but the three years to be used are 2023, 2024, and 2025.
228Accordingly, the applicant’s 2025 income needs to be determined.
229The onus rests on the applicant to tender sufficient evidence to establish his income for each year in question. With respect to 2025, the applicant has failed to meet that onus.
230On the other hand, the respondent considered the applicant’s gross income to October 2025, the best available evidence at the time the trial was held, and persuasively argued that the applicant’s partial contributions to his home office is a reasonable deduction.
231This court also accepts the respondent’s submission that the podcast expenses were not demonstrably correlated generating income.
232Having considered the position of the parties, based on the record before the court and the best evidence available, the applicant’s 2025 income shall be set at $425,000.
Lifestyle
233The respondent advanced a lifestyle argument purporting that the applicant travel history should be considered when determining his income.
234In support of this argument, the respondent submits that between December 2024 and August 2025, the applicant travelled to Palm Springs, Ottawa, Curacao, Huntington Beach, Peru, and Kananaskis.
235In addition to this travel, the respondent submits that the applicant drives a Lexus and rents his residence.
236The applicant testified that some of this travel relates to conferences he is required to attend or chooses to attend for the purpose of his employment.
237Evidence of lifestyle is not income, but it can be evidence of undisclosed income. Lifestyle may lead to an inference drawn that a person has undisclosed income that may be imputed for the purpose of determining support: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 43.
238Section 19 of the Child Support Guidelines, O. Reg. 391/97 (“Guidelines”) permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
239Here, there was insufficient evidence about the applicant’s lifestyle to reflect any undisclosed income or to impute income to the applicant in this manner.
Request for a Three-Year Average
240There appears to be no dispute that it would be appropriate for this court to use a three-year average to determine the applicant’s income given the complexity and fluctuation in this income.
241There is apparent agreement that a three-year average as permitted under section 17 of the Guidelines is a fair and reasonable way to determine the applicant’s income.
242However, there is a dispute as to what three years should be used in calculating the average. The applicant suggest it should be 2022, 2023, and 2024. The respondent suggests the three-year average should include 2023, 2024, and 2025.
243This court agrees with the position of the respondent on this issue. The minutes of settlement dated April 29, 2021, which form the basis for the final O’Brien order made in 2021 specifically state that any new quantum shall commence May 1, 2023, and not be retroactive.
244Accordingly, having determined the applicant’s income for the years in question, the three-year average and the applicant’s income for support purposes on an on-going basis is $339,333.
Conclusion on Applicant’s Income
245The applicant’s income for 2023, 2024 and 2025 shall be $240,000, $353,000, and $425,000, respectively.
246Commencing January 1, 2026, the applicant’s income for support purposes shall be an average of his income for 2023, 2024, and 2025 and is, therefore, set at $339,333.
Respondent’s Income
Imputation of Income
247The respondent does not dispute that income should be imputed to her. In her closing submissions, she requested her income be imputed to $35,000. She also provided the court with SSAG calculations with her income imputed to $50,000. Her draft order lists her income as $50,000.
248The applicant submits that the respondent ought to be reasonably deemed an income of at least $60,000 per annum. He notes that she has had eight years since separating to gain experience, education, and retraining.
249Neither party made submissions as to the evidentiary basis for the $50,000 or $60,000 amounts.
250In this case, the parties agreed that Section 19 of the Guidelines allows the court to impute come to the respondent as the income she reports does not fairly reflect her true earning capacity
251The question this court needs to resolve is what is her true earning capacity in the having regard for all of the circumstances?
252The principles that apply in determining whether to impute income for support purposes are set out in the Guidelines which provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19 which apply here is as follows:
Imputing income
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(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;
253The onus is on the party requesting the court to impute income, the applicant, to establish the grounds for this request: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, additional reasons 2009 ONCA 457, 65 R.F.L. (6th) 26; Drygala v. Pauli, [2002] 61 O.R. (3d) (C.A.), additional reasons 2003 48241 (ON CA), [2003] 35 R.F.L. (5th) 323 (Ont. C.A.).
254As set out in Drygala, the court is required to consider the following three questions:
Is the respondent intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of her reasonable educational or health needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
255The Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart support obligations. A party is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances: see Drygala; Lawson v. Lawson, 81 O.R. (3d) 321 (C.A.).
256In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.
257The factors that the court is required to consider include the age, education, experience, skills, and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity: see Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at para. 74 quoting Drygala and Lawson.
258A summary of the respondent’s education, employment history, and mental health needs are outlined above in detail.
259Of significance, is the respondent’s treating psychiatrist’s evidence regarding health related challenges and difficulties. These health needs are long standing to a varying degree.
260To some extent, there are circumstances beyond the respondent’s control, such as her mental health and outdated education.
261Other circumstances are within her control. For example, she chooses to care for her elderly mother and make that a priority, over and above obtaining self-sufficiency, retraining, and being employed in any capacity.
262Additionally, the respondent chose not to pursue meaningful retraining or education in the eight years since she and the applicant separated.
263This court does not take the view that the respondent has always made reasonable choices. For example, post separation, the respondent’s childcare responsibility reduced as the child went away for university, yet she did not complete the course she undertook for retraining and she did not attempt to undergo any further retraining. Also, the respondent did not consistently undergo career counselling.
264While the court understands and appreciates the respondent’s justification and rationale, the amount of income to be imputed must reflect her realistic earning capacity given her limitations and this must be balanced against her voluntary choices.
265The applicant submits that had the respondent completed the project management program, she could, in fact be earning as substantially higher income at this point. This might well be true.
266In the record before the court, the gradual approach to work integration the respondent’s physiatrist advocates for, and which is supported by the vocational assessor was not attempted.
267While the respondent did not actively look for employment, she prioritized her time and effort to renovate her Humberside property and act as a landlord. She testified that she did not enjoy being a landlord and did not find it lucrative. Her Income Tax Returns reveal that the expenses she claimed on the rental property lowered her taxable income.
268The respondent also prioritized travel to Italy, New York, France, Spain, Turks and Caicos, California, Hawaii, and Poland to attend a Taylor Swift concert.
269While some of these trips were noted to be for the child’s education and graduation gift, not all trips were justified or explained.
270The respondent applied to a handful of jobs and did not do so consistently as would be expected of an individual who was highly motivated to follow through on suggestions and recommendations made by various professionals. The respondent did not call the social worker she engaged to testify about career counselling efforts.
271The respondent also described herself as retired when applying for vehicle financing. While the respondent tried to justify this choice, the court is left with the impression that this how she viewed herself.
272The vocational assessor projected earning potential on the range of $25-$32 per hour factoring median range statistical earning. According to the vocational assessor, allowing the respondent to ease into part time commitments with a gradual 20-hour work week her annual earnings are estimated at $26,000 to $32,280.
273When imputing income, section 19 of the Guidelines is not an invitation to select an amount arbitrarily; rather, there must be a rational basis underlining the imputed amount, and the court’s discretion “must be grounded in the evidence”: see Drygala, at para. 44.
274Once under-employment or unemployment is established, the onus shifts to the party resisting imputation to prove one of the exceptions of reasonableness: see Riel v. Holland, [2003] 67 O.R. (3d) 417 (C.A.).
275Although the court accepted aspects of the respondent’s circumstances as reasonable, it also identified voluntary choices that it considers unreasonable when assessing income imputation.
276The court will exercise its discretion to give weight to the respondent’s voluntary choice to prioritize non‑income generating pursuits in her vocational path as well as her choice not to retrain in a meaningful capacity.
277The respondent’s potential earnings are estimated at $50,000 when taking the vocational assessor’s suggestion that she could make $32 per hour, and taking her psychiatrist’s opinion that she could work part-time, but not full-time, and assuming she could work 30 hours per week.
278As such, $50,000 will be imputed towards the respondent’s income.
Investments and Assets
279The applicant takes the position that the respondent should use her assets fully for the purpose of generating income, submitting that if she did so, she would have no need for support. The respondent disputes this.
Home – Totteridge Property
280There is a dispute about the current value of 12 Totteridge Road. The applicant retained the appraiser who valued the property in July 2018 and maintains that the property has appreciated in value, and as of January 2025 is worth $2,200,000.
281The respondent disputes this value of Totteridge property, suggesting it is worth less given its current state of repair.
282The respondent testified about the plaster damage in living room and two main bathrooms, a leak from the chimney, electrical work needed in the basements, the thermostat, the lawn needing to be re-sodded, and a driveway and walkway repairs. She suggests that significant repairs are required following the $300,000 renovations performed a little over ten years ago.
283The court was not persuaded by the respondent’s evidence. It prefers the best evidence it has regarding the value of the Totteridge property and accepts that its current value is approximately $2,200,000.
Investments and Other Assets
284In addition to the Totteridge property, the respondent holds RRSP/LIRA, cash in accounts, and a TFSA. Her financial statement sets out current values of these investments and accounts.
285The applicant retained an actuary to opine on the respondent’s expected lifetime income from her investments and assets. The actuary prepared a report based on several assumptions.
286The actuary opined the respondent’s expected lifetime gross income from investment and assets total $151,085. The applicant asks that this amount be added to the income this court impute under section 19(1)(a) of the Guidelines.
287For determining income for support purposes, the court is entitled to consider not only actual income being earned, but income that a party can reasonably be expected to earn. The basis for this is set out in case law and the legislation.
288First, section 15.2(4) of the Divorce Act requires the court to take it into consideration the condition, means, needs, and other circumstances of each spouse when making a spousal support order.
289Second, Section 19(1)(e) of the Guidelines provides that a court may impute such amount of income as it considers appropriate in the circumstances, including when a spouse's property is not reasonably utilized to generate income.
290Third, the Supreme Court of Canada has held that when determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun, 2006, SCC 25, [2006] 1 S.C.R. 920, at para. 29.
291To consider a spouse’s “means”, it is appropriate to consider all financial resources, capital assets, income from any sources, investments, pensions, and any other sources from which the spouse derives gains or benefit: Leskun, at para. 29.
292In this case, that includes the respondent’s property and her investments. However, the question here is what extent of her assets and investments should be considered?
293Since separation, the respondent’s assets increased to the point where her net assets exceed the applicant’s assets.
294The post separation the respondent received a $950,000 inheritance, a $350,000 equalization payment and approximately $440,000 in capital gains from the sale of the Humberside property. She also retained the former matrimonial home, the Totteridge property. The actuary the applicant retained considered all of this and took figures set out in the respondent’s sworn financial statement.
295The actuary’s report assumed that the respondent would use her assets and investments to provide lifetime income over her life expectancy, 86.5 years, invest in a conservative investment portfolio which provides for an annual income and increases with inflation each year.
296This assumption led to the conclusion that respondent could earn $108,094 which was converted on a pre-tax basis to $151,085.
297This court takes no issue with the methodology applied by the actuary. However, the underlying assumptions he was asked to make are unreasonable for the following reasons.
298The opinion of the actuary is predicated on 1) the respondent liquidating her primary home immediately or that she start liquidating it through a line of credit or a reverse mortgage; and 2) that when the respondent dies, she will be left with no assets or investments.
299In my view, it is unreasonable to expect a 58-year-old to liquidate all her assets. Currently, the respondent’s home is her largest asset. If her financial situation remains unchanged and if the respondent were to live past the age of 86, she would be left with no means to meet her needs.
300I do not interpret "means" to include a complete liquidation of assets. Such an interpretation is unreasonable. A more reasonable interpretation of "means" require requires a more moderate, fair, and sensible approach.
301The respondent should not be required to sell or liquidate her home on the basis that it is not being reasonably utilized to generate income. However, if circumstances were different, for example, if the respondent received another inheritance, injection of capital, or is in receipt of OAS and CPP, it could be a reasonable assumption and expectation that she could use those funds to generate income. These circumstances, which contemplate increased liquid capital and annual income, would render it fair and reasonable to require her to utilize her assets to generate income for support purposes.
302In the result, at this time, this court will not consider the actuary’s report for the purposes of determining the respondent’s income for support purposes.
Conclusion on Respondent’s Income
303The respondent’s income for 2023, 2024, and 2025 and on a go-forward basis shall se set to shall be $50,000.
Formulas, Range, Quantum, and Duration
304The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in sections 15.2(4) to (6) of the Divorce Act.
305The basis for spousal support entitlement is a critical factor in determining quantum, duration, and location within the SSAG ranges.
306This court is required to look at all the factors in the light of the stipulated objectives of support and exercise its discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.
307When assessing the relevant spousal support objectives and factors, this court concludes that the respondent ought to have adjusted her standard of living overtime to one commensurate with her own income earning ability in a reasonable time frame. This speaks to her self-sufficiency.
308The court did not receive submissions with respect to the appropriate formula to be applied, the Rule of 65, or the impact of income over $350,000. Some submissions were made with respect to range.
309This court will take guidance of the SSAGs.
Formula and section 7 expenses
310The parties agree that child support terminated as of April 30, 2024. The recalculation of support in 2023 and up to and including April 30, 2024, requires the court to use the with child support formula to ensure that child support takes priority over spousal support as directed by s 15.3 of the Divorce Act.
311Given the child was attending university in Guelph, the summer Table amount will be applied for 2023 and four months in 2024.
312It is also important to consider section 7 expense contribution because payments made by the applicant will appropriately reduce the range for amounts of spousal support. The parties have agreed that the applicant will pay the respondent $21,000 for section 7 expenses up to April 30, 2024.
313No submissions were made on the treatment of the $21,000 for the purpose of spousal support calculations. To ensure that the amount it captured is reasonable and fair, the court will divide the total amount by the total number of months the amount covers, then multiply that value by the applicable months in each year. This results in payment of section 7 expenses of $15,750 in 2023 and $5,250 in 2024 (calculated as follows: $21,000 ÷ 16 months (all of 2023 and 4 months in 2024) = $1,312.50; $1,312.50 x 12 months (in 2023) = $15,750; $1,312.50 x 4 months (in 2024) = $5,250.
314Given the parties’ agreement that child support terminated effective April 30, 2024, the court will apply the without child support formula from that date forward.
Range
315This court must resist the tendency to default to the midrange because doing so ignores several factors this court is required to consider including assessing the strength of the respondent’s compensatory claim, the respondent’s needs, and her self-sufficiency incentives.
316This court will use the low-end range for the following reasons. The court had difficulty imputing a higher income to the respondent considering her medical needs, but nonetheless finds that she remains capable of earning more.
317Additionally, as stated above, the respondent ought to have adjusted her standard of living overtime to one commensurate with her own income earning ability in a reasonable time frame and she did not.
318The apparent strength of the respondent’s compensatory claim must be weighed against the respondent’s post‑separation conduct, the absence of evidence demonstrating any direct career sacrifice for childcare after separation, and the respondent’s failure to establish that she lost career opportunities during that period.
319Further, the lower range of support is informed by the respondent’s failure to retrain or actively pursue employment at the time of separation or at any point in the eight years that followed, despite being younger and any age‑related limitations were less significant, when her depression may have been in remission, and before she assumed her current caregiving responsibilities for her elderly mother.
320Finally, a lower range of support is further justified by recognizing that the respondent’s entitlement to needs‑based support is tempered by the increase in her assets post‑separation. The respondent lives in a mortgage free home, and she obtained further monetary security through the parties’ property division, the inheritance she received post-separation, and the capital gains from the sale of her rental.
321The applicant’s income over $350,000 also favours a lower range of support as set out below.
Ceiling
322According to the SSAGs and given the court’s finding is about the applicant’s income in 2024 and 2025, his income is above the $350,000 ceiling that the SSAGs described to be the upper boundary of typical cases where the formulas can be used.
323The SSAG RUG states that formulas are no longer presumptive, and they cannot be used alone, when income is above the $350,000 ceiling: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), at p. 56. The SSAG RUG call for an individualized adjustment on a discretionary review of the specific facts of the case.
324In 2024 in 2025, the applicant’s income was determined to be $353,000 and $425,000, respectively. I do not take the view that this income is too far above $350,000.
325The court takes the view that it is appropriate to order an amount in the low end of the SSAG range because to do otherwise would result in inflated support figures which are inconsistent with the purpose of spousal support and the actual needs of the respondent. Spousal support is not intended to create long term dependency or equalize wealth. On the facts of this case, the low range amount adequately compensates economic disadvantage.
Duration
326Both parties agree that they do not wish for this court to order another review of spousal support. The applicant asks for a termination date to be set for August 2030 when he reaches 67 years of age and will retire. This would mean that support would terminate 13 years after separation after a 24.5 year period of cohabitation/marriage.
327The respondent asks that the court order that spousal support shall be payable until a material change of circumstance, but no earlier than when the applicant reaches age 67.
328This court will not order a termination of support as requested by the applicant given the relationship was over 20 years in length and to do so would be inappropriate given the rule of 65. The respondent’s age at separation, plus the length of the parties’ relationship exceeds 65.
329This is a case of indefinite support, subject to a variation based on a material change in circumstance. This court will set out specific terms regarding what is to be considered a material change in circumstance. For clarity, this court will set out what is being contemplated at the time that this order is being made to prevent the parties from relitigating issues that have already been considered.
330In this case, a material change in circumstance will include, but not be limited to, the applicant’s retirement, the respondent’s receipt of CPP and OAS, and/or an inheritance or any change in her financial situation or other change that results in an increase in her wealth or assets.
331Such a change should not entitle the respondent to freely expend those funds while continuing to receive support, particularly given the Divorce Act’s objective of promoting self‑sufficiency within a reasonable and practicable period.
332The court is not prepared to order that a variation cannot occur earlier than when the applicant turns 67. Similarly, the court will not delay the variation to when the respondent turns 65 and is presumably entitled to CPP and OAS. The parties’ circumstances may change at any point, and this might trigger a warranted variation.
333To ensure parties are aware of their respective financial situations, the court will order the parties to exchange sworn financial statements or sworn net worth statements and their income tax returns yearly.
Table Child Support - Overpayment
334Court is required to determine what Table support is owing for the period of May 1, 2023 to the agreed upon termination date of April 30, 2024. Their agreement is the subject of a final consent order made by Justice Mathen.
335The applicant submits that prior to trial, he did not know that the child lived away from home and not exclusively with the respondent as he no longer has a meaningful relationship with the child, and they do not communicate. According to him, he learned this during the trial and asks for the summer formula to apply.
336The respondent suggests that the court should consider using a three-year average to determine the applicant’s child support obligations while the child was away at school. She submits that the evidence is not clear about where the child lived and whether she lived exclusively in Guelph.
337The applicant submits that he overpaid table support because the summer formula ought to apply when the child was living in Guelph for eight months during the review.
338It was the respondent’s evidence, as set out in her affidavit, that although the child was to be in a four-year degree which would have concluded in April 2023, she took a further year to complete same due to her health and Covid complexities.
339The respondent claims the child's attended school full time for five years for her undergraduate degree and took summer courses and this was known to the applicant. The respondent’s affidavit sets out that the child commenced university in September 2019 and she graduated in May 2024.
340The summer formula will apply for the period in question using applicant’s income as determined by this court.
341This results in support payable in the amount of $649 for the 8 months in 2023 and $920 for the four months in 2024.
342It is acknowledged that the under the terms of the O'Brien order, the applicant was required to pay child support in the amount of $2,739. Accordingly, there has been an overpayment of child support. The parties are asked to calculate the over payment based on these Reasons for Decision.
Calculation of Support Owing and Overpayments and Underpayments
343Attached as a Schedule to this decision are SSAG calculations for each year in question, using the formulas and ranges as set out above and payment of section 7 expenses.
344The following amounts are owing.
2023
345Effective May 1, 2023, and payable monthly up to and including December 31, 2023, the applicant shall pay to the respondent child support for the benefit of S., in the amount of $649.
346Effective May 1, 2023, and payable monthly up to and including December 31, 2023, the applicant shall pay to the respondent spousal support in the amount of $4,178.
2024
347Effective January 1, 2024, and payable monthly up to and including April 30, 2024, 2023, the applicant shall pay to the respondent child support for the benefit of S., in the amount of $920.
348Effective January 1, 2024, and payable monthly up to and including April 30, 2024, the applicant shall pay to the respondent spousal support in the amount of $7,749.
349Effective May 1, 2024, and payable monthly up to and including December 31, 2024, the applicant shall pay to the respondent spousal support in the amount of $9,279.
2025
350Effective January 1, 2025, and payable monthly up to and including December 31, 2025, the applicant shall pay to the respondent spousal support in the amount of $11,484.
2026
351Effective January 1, 2026, and payable monthly subject to a variation, the applicant shall pay to the respondent spousal support in the amount of $8,861.
352Based on the above, the applicant has overpaid child support, and spousal support in 2023, 2024, and part of 2026. The applicant underpaid spousal support in 2025. The net effect of this results in an overpayment. The net overpayment is to be repaid by the respondent within 30 days.
353If the parties discover any errors in my arithmetic, they are invited to appear before me to review same.
Orders
354On consent, pursuant to the Divorce Act, this court orders:
The applicant’s obligations to contribute to the child, S. born […, 2020], special and extraordinary expenses terminated on a final basis on April 30, 2024.
On or before December 1, 2025, the applicant shall pay to the respondent the sum of $21,000 in satisfaction of all claims for special and extraordinary expenses with respect to the child, S., up to and including April 30, 2024.
This court further orders, pursuant to the Divorce Act,
Effective May 1, 2023, and payable monthly up to and including December 31, 2023, the applicant shall pay to the respondent child support for the benefit of S. born […, 2020], in the amount of $649.
Effective May 1, 2023, and payable monthly up to and including December 31, 2023, the applicant shall pay to the respondent spousal support in the amount of $4,178.
Effective January 1, 2024, and payable monthly up to and including April 30, 2024, 2023, the applicant shall pay to the respondent child support for the benefit of S. born […, 2020], in the amount of $920.
Effective January 1, 2024, and payable monthly up to and including April 30, 2024, the applicant shall pay to the respondent spousal support in the amount of $7,749.
Effective May 1, 2024, and payable monthly up to and including December 31, 2024, the applicant shall pay to the respondent spousal support in the amount of $9,279.
Effective January 1, 2025, and payable monthly up to and including December 31, 2025, the applicant shall pay to the respondent spousal support in the amount of $11,484.
Effective January 1, 2026, and payable monthly subject to a variation, the applicant shall pay to the respondent spousal support in the amount of $8,861.
The parties shall calculate net overpayment (including table child support and spousal support) paid by the applicant and the overpayment shall be repaid by the respondent within 30 days.
Spousal support, including quantum and duration, spousal support shall be subject to variation in the event of a material change in circumstances including, without limiting the generality thereof, applicant’s retirement, the respondent’s receipt of CPP and OAS, and/or an inheritance or any change in her financial situation or other change that results in an increase in her wealth or assets.
The parties shall inform the other of any change to their respective financial situations and they shall annually, effective September 2026 exchange sworn financial statements or sworn net worth statements, and their income tax returns for the year prior.
A SDO and SDOI shall issue.
Costs
355Having regard from the parties’ positions at trial and the orders and finding made, this case is one of mixed success.
356The parties shall engage in meaningful discussions on the issue of costs of this proceeding.
357If they are unable to resolve costs, on or before March 13, 2026, any party seeking costs shall submit written submissions no longer than five pages, not including the documentation required by subrules 24(15) and (16).
358On or before March 27, 2026. a party may serve and file a responding written submission on costs, no longer than five pages, not including the documentation required by subrules 24(15) and (16).
359Costs shall be deemed settled if written submissions are not received in accordance with the timeline above.
JUSTICE K. SAH
Released: February 26, 2026