Toenjes v. Toenjes, 2012 ABQB 409

Court of Queen ’ s Bench of Alberta Citation: Toenjes v. Toenjes, 2012 ABQB 409 Date: 20120622 Docket: 4801 123120 Registry: Calgary Between: Shelley Ann Toenjes Plaintiff - and - Russell John Toenjes Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice G.H. Poelman _______________________________________________________

TABLE OF CONTENTS Toenjes v. Toenjes - Action Number 4801 123120 I. Introduction.............................................................................................................. Page: 2 II. Background............................................................................................................ Page: 2 A. Legal Principles................................................................................................ Page: 3 B. Mr. Toenjes’ Income......................................................................................... Page: 4 C. Ms.

Toenjes’ Income........................................................................................ Page: 5 IV. Allocation of Prior Support Payments.................................................................. Page: 6 V. Child Support.......................................................................................................... Page: 8 A. Current Support................................................................................................ Page: 8 B. Retroactive Support......................................................................................... Page: 8 C.

Special or Extraordinary Expenses............................................................. Page: 11 VI. Spousal Support.................................................................................................. Page: 12 A. Entitlement...................................................................................................... Page: 12 B. Amount of Spousal Support.......................................................................... Page: 14 C. Retroactive Spousal Support....................................................................... Page: 17 D.

Effect of Matrimonial Property Division....................................................... Page: 19 VII.

Summary .............................................................................................................. Page: 20 I. Introduction [ 1 ] Mr. and Mrs. Toenjes separated in 2003, after nineteen years of marriage. Since 2004, Mr. Toenjes has made child support payments for their two children and spousal support payments for Ms. Toenjes. They settled matrimonial property issues at the end of 2009. [ 2 ] Ms. Toenjes seeks retroactive increases to the child and spousal support payments, and increases for future payments.

In addition to the usual issues of determining the parties’ income and whether retroactive orders are appropriate in the circumstances, Mr. Toenjes argues that he should be given credit for an unequal property division and asks for spousal support payments to be ended in the near future.

II. Background [ 3 ] The parties were married on May 9, 1984 and separated on September 23, 2003. They were granted a divorce judgment on August 18, 2006. [ 4 ] There are two children from the marriage, Luke (19 years old) and Joel (16 years old). Both have resided in Ms. Toenjes’ primary care since separation, although Luke has resided in British Columbia for parts of some years while attending a private school and, most recently, a private college. [ 5 ] The litigation history, to the extent it appears on the record and in evidence, is quickly told. The statement of claim was filed on February 9, 2005.

Also in that year, there were notices to disclose and responses thereto. A series of consent orders, dated February 2, 2006, June 2, 2006, May 11, 2007, September 3, 2008 and April 29, 2009, were granted. Each order identifies specific monthly payments, for specific periods, paid by Mr. Toenjes to Ms. Toenjes, “deemed to be spousal support payments” such that each party may claim them as such on their income tax returns.

The recitals state that the orders are without prejudice to either party being able to apply for retroactive spousal support being either higher or lower than the amount of the order. [ 6 ] The parties entered into a Matrimonial Property Distribution Agreement in December 2009. [ 7 ] On December 22, 2010, Ms. Toenjes filed a notice to disclose. Her application for “support payment purposes, ongoing child support, child support arrears, ongoing spousal support, spousal support arrears, and costs”, being the subject of this decision, was filed on March 19, 2012. III. Income of Parties A.

Legal Principles [ 8 ] The court’s jurisdiction to order child support is found in

section 15 of the Divorce Act [1] . That provision also directs that child support orders be made, except in limited circumstances, in accordance with the applicable guidelines, which are the Federal Child Support Guidelines [2] ( “Child Guidelines ” ). [ 9 ]

Section 1 of the Child Guidelines expressly states their objectives as, among other things, to reduce conflict and tension by making orders more objective, improve efficiency by giving courts and parties guidance in establishing levels of support, and ensure consistency of treatment. Sections 3, 4, 7, 8 and 9 provide for the determination of child support in various circumstances. Presumptively, support is based on “the amount set out in the applicable table.” [3] The income of the spouses is usually one of the main determining factors. [ 10 ] Thus,

section 16 of the Child Guidelines provides that a spouse’s annual income will be determined using the sources of income set out under the heading “total income” on the standard Income Tax Return form issued by Canada Revenue Agency (identified on the tax form as “line 150”), adjusted in accordance with

Schedule III of the Child Guidelines . That

schedule provides for deduction of a number of income-related expenses, any child support and spousal support payments received that are included in the “total income” category, and adjustments for capital gains and capital losses and employee stock options. [ 11 ] There will be a departure from the use of “total income”, as adjusted by

Schedule III, in the following cases:

a) Where it may be necessary to look at the previous three years’ total income because of a pattern or fluctuation in income;

b) Where there has been a non-recurring capital or business investment loss;

c) Where the line 150 income may not fairly reflect all the money available to a spouse because of his or her position as a shareholder, director or officer of a corporation;

d) Where it may be necessary to impute income to a spouse, because of intentional underemployment, unusually favourable tax treatment, failure to provide income information, unreasonable deduction of expenses and a number of other factors. [ 12 ]

Section 15.2 of the Divorce Act gives the court jurisdiction to make orders requiring a spouse to pay amounts determined as reasonable for the support of the other spouse. However, while the Divorce Act sets out the objectives of spousal support orders and the factors to be taken into consideration when making them, it does not provide for guidelines of the nature provided for child support orders.

The Spousal Support Advisory Guidelines ( “Spousal Guidelines ” ) prepared by Carol Rogerson and Rollie Thompson [4] have been recognized as a useful cross-check or starting point in the exercise of judicial discretion. [5] [ 13 ] Income of both spouses is relevant to both the factors and objectives of spousal support under

section 15.2 of the Divorce Act , and is an integral component to calculations under the Spousal Guidelines . The definition of income under the Child Guidelines is the starting point for determination of income under the Spousal Guidelines , although there may sometimes be distinctive income issues that arise under the Spousal Guidelines . In this case, I find no reason to use different annual incomes for the two types of support claims. B. Mr. Toenjes ’ Income [ 14 ] Mr.

Toenjes’ line 150 income for the years at issue was as follows: 2005 $113,249.00 2006 $141,179.00 2007 $171,116.00 2008 $165,189.00 2009 $159,656.00 2010 $175,594.66 2011 $161,104.00 [ 15 ] Ms. Toenjes argues that these figures are not representative of Mr. Toenjes’ income, at least for the purpose of determining future support payments. She suggests that his “total income” figures may not include all benefits he receives as a pilot from his employer, WestJet, including profit-sharing, stock options, and discounted personal flights.

She acknowledges that an accounting analysis would be required to confirm and quantify this point, but has not undertaken this exercise because of the expense it would entail. [ 16 ] I am not satisfied on the evidence that an adjustment to or departure from the total income figure used by Mr. Toenjes on his

income tax returns should be made. Some of the employment benefits of concern to Ms. Toenjes are included in those figures. They are not limited to employment income. For example, in 2010, Mr. Toenjes’ employment income was $159,493.72. The balance of income making up his “total income” of $175,594.66 comprised mainly capital gains and RRSP income. [ 17 ] Further, various employees have benefits of different types and values which may not be completely captured in the total income figure on an income tax return.

In cases of arm’s length employment, a party has an onus of establishing through clear evidence a legal basis for departing from the presumptive approach in the Child Guidelines , having regard (among other things) to the purposes of making determinations more objective, efficient and consistent among litigants. [ 18 ] To the extent Mr. Toenjes’ income is necessary to calculate past support obligations, his total income as reported and assessed will be used.

Because of the significant variation over the past several years, an average of 2009 through 2011 will be used pursuant to section 17(1) of the Child Guidelines for current obligations. That average is $165,452. (In my view, that is a more reliable approach than Ms. Toenjes’ suggested forecast, which was based on a pay statement from January 1 to February 24, 2012.) C. Ms. Toenjes ’ Income [ 19 ] The evidentiary record for Ms. Toenjes’ income is incomplete. She earns her income from self-employment as a piano teacher, operating out of her home.

Her income is derived by deducting expenses from gross income to arrive at net income; in addition, it would be necessary to deduct support payments received. [ 20 ] She has not brought into evidence complete income tax returns, which would show how her income is made up and what expenses have been deducted. The information available to me comes from the

summary pages on some of her income tax returns and gross business income and net business income figures to which she testified in affidavit questioning. [ 21 ] My compilation of this incomplete information from the evidence is as follows: Year ITR Total Income Gross Business Income Net Business Income 2004 $2,805.00 $727.00 2005 $8,676.25 $3,391.46 2006 $10,231.25 $6,761.52 2007 $18,062.00 $8,925.00 $2,467.00 2008 $20,852.00 $10,434.00 $5,059.13 2009 $19,294.00 $11,497.40 $3,585.56 2010 $26,584.00 $16,288.35 $8,062.41 2011 $25,685.00 (est.) $20,000.00 [ 22 ] It is not clear which figures include support payments; presumably, they are included in the ITR Total Income, but not in Gross Business Income.

[ 23 ] Ms. Toenjes had not finalized her tax return when swearing her affidavit, and thus the Net Business Income (which results from deduction of permissible tax expenses) for 2011 is an estimate. She deposed that her income for 2012 is expected to be about the same. [ 24 ] Ms. Toenjes teaches from September to June, although she hopes to do some work in the summer in the future. Her teaching commitments involve partial days, although she explains some preparation time is needed.

She submits that her current annual income (net business income) for support purposes be set at $20,000, arguing that “due to her health conditions and lack of any other training or employable skills, she will not be able to earn more than this.” [ 25 ] I find Ms. Toenjes’ current income, as necessary for determination of support payments, to be $22,000. My finding reflects the fact that she has the personal benefit of tax deductions from income that would normally be household expenses.

I also recognize that her income has risen, and (for reasons I give later) should be assumed to continue to rise by at least some degree. IV. Allocation of Prior Support Payments [ 26 ] Mr. Toenjes deposed that after separation, he began making “global” support payments. These were $2,500 per month from October 2003 through July 2005; $2,800 per month from August 2005 through to December 2005; and $3,000 per month from January 2006 to the present. [ 27 ] However, in the consent orders to which I referred earlier, certain payments were deemed to be spousal support payments.

The specified amounts were $1,700 monthly from January 2004 through July 2005; $1,200 monthly from August 2005 through December 2005; and $1,300 monthly from January 2006 through December 2008. No subsequent orders were made (despite Mr. Toenjes’ requests for them), but the total monthly payments have remained the same. Further, Mr. Toenjes’ affidavit indicates that he considers the apportionment to be the same (because he complains about the loss of tax benefits for the same spousal support amounts for the 2010 and 2011 tax years). [ 28 ] In response to Ms.

Toenjes’ application for retroactive and future child and spousal support payments, Mr. Toenjes seeks to have the previous payments reclassified. He proposes that they be allocated first to child support and, only after amounts indicated by the Child Guidelines have been satisfied, to spousal support. [ 29 ] Mr. Toenjes’ argument is based on

section 15.3(1) of the Divorce Act , which provides as follows: Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications. [ 30 ] In my view, that provision is intended to address circumstances where, in a current application before the court, there are inadequate resources to fund both child and spousal support. In those cases, priority must be given to child support.

It is not intended to enable parties to make and reverse allocations to accommodate tax planning and strategic litigation considerations at their whim. [ 31 ] The consent orders were made without prejudice to the parties’ rights “to bring application with respect to retroactive spousal support being either higher or lower than ordered.” Mr. Toenjes, however, seeks to undo the entire series of orders, not adjust the amounts. Whatever merits that application might once have had, he has waited too long. Further, he seeks to go beyond making adjustments to spousal support.

The effect of his argument would be to reduce spousal support to at best nominal levels for the years in which the orders applied. [ 32 ] The parties adopted a course of conduct, sanctioned by the orders, since at least 2006. They made tax filings based on their allocations. Furthermore, Ms. Toenjes was entitled at some point to assume that she could rely on the allocation of what funds were intended primarily for her use and what funds were dedicated to supporting the children. Finally, I note that Mr.

Toenjes did not apply to change the orders, as they expressly contemplate; rather, his argument is made years later in response to Ms. Toenjes’ application.

[ 33 ] In my view, the parties are bound for purposes of this application by the agreed allocations confirmed by court order. Thus, I find that monthly support payments were made as follows: Total Child Support Spousal Support January 2004 to July 2005 $2,500.00 $800.00 $1,700.00 August 2005 to December 2005 $2,800.00 $1,600.00 $1,200.00 January 2006 to current $3,000.00 $1,700.00 $1,300.00 V. Child Support A. Current Support [ 34 ] Mr. Toenjes agrees that both sons remain “children of the marriage” for purposes of child support entitlement.

Luke is now 19 years old, but continues to be enrolled full time in a post-secondary educational institution. [ 35 ] Both parties used the standard tables for calculations, including for years in which Mr. Toenjes’ salary exceeded $150,000 per year. Neither suggests any reason to depart from the Child Guidelines for current child support payments. Thus, based on my finding that for present purposes Mr. Toenjes’ annual income is $165,452, his child support payments commencing April 1, 2012 will be $2,306 ($2,099 + [1.34% x ($165,452 - $150,000]). B. Retroactive Support [ 36 ] Based on my findings regarding Mr.

Toenjes’ income, and the child support amounts prescribed in the Child Guidelines , there is a difference between payments made and prescribed amounts (on a monthly basis) as follows: Mr. Toenjes’ Income Guideline Support Difference 2005 (Jan. to July) $113,246.00 $ 1,611 $ 811 2005 (Aug. to Dec.) $113,246.00 $ 1,611 $ 11 2006 $141,179.00 $ 1,979 $ 279 2007 $171,116.00 $ 2,375 $ 675 2008 $165,189.00 $ 2,296 $ 596 2009 $159,656.00 $ 2,223 $ 523

2010 $175,594.66 $ 2,434 $ 734 2011 $161,104.00 $ 2,243 $ 543 In light of the shortfall, Ms. Toenjes applies for retroactive child support. [ 37 ] The principles for determining whether a payor parent may be ordered to pay retroactive child support were established in D.B.S. v. S.R.G . [6] , and have been applied in many decisions thereafter. They may be summarized as follows:

(1) Child support is the right of a child, and will vary in amount based upon the payor parent’s income (paras. 38, 45 and 60). The current system has moved away from purely need-based criteria (para. 47).

(2) Parents’ obligations to support their children in a way commensurate with their income is independent of any statute or court order (para. 54).

(3) A payor parent who does not increase support payments with an increase in income fails to comply with his or her obligations towards his or her children (paras. 48 and 54).

(4) The court has jurisdiction to award retroactive support for children who remain “children of the marriage” at the time of application (paras. 89 and 90).

(5) Where there is already a court order directing child support, it is presumptively valid (para. 65) and the payor parent has a legitimate interest in predictability and certainty. However, this concern is overcome when there has been a material change in circumstances (paras. 66 and 74) or where that parent has not fulfilled an obligation to increase support with an increase in income (paras. 69 and 74).

(6) An agreement between the parents for child support should be given considerable weight; it is often unwise for courts to disrupt a negotiated equilibrium (para. 78). However,

section 15.1 of the Divorce Act requires a court to be satisfied that reasonable arrangements have been made for child support even in the face of parental consent (para. 77). Thus, as with court orders, where circumstances have changed and actual support obligations have not kept pace with income, a retroactive award may be made (para. 78).

(7) In determining whether to order retroactive child support, a court should consider: (

i) the reasons for delay in seeking the order; (ii) conduct of the payor parent; (iii) the circumstances of the child; and (iv) hardship that would be caused by a retroactive award (paras. 94 to 116). [ 38 ] In reference to the factors mandated by D.B.S. , it is important to consider that child support payments of $1,700 per month have been made since January 2006. There is no evidence of how the amount was determined. I infer from the evidence that Mr. Toenjes was prepared to pay this amount, and Ms. Toenjes received it without expressly agreeing or disputing the amount.

Further, I infer from the evidence (including Ms. Toenjes’ counsel’s May 22, 2007 letter and the financial information from Mr. Toenjes used in Ms. Toenjes’ affidavits and briefs) that Mr. Toenjes disclosed his income in a timely manner. [ 39 ] There has, however, been a shortfall between the prescribed payments and those made. Both parents bear responsibility for the shortfall. Mr. Toenjes did not make child support payments at the mandated level. Ms. Toenjes did not discharge her responsibility, in an application-based regime, to apply for higher payments.

The evidence discloses no clear reasons for the parties’ lapses. I can only note that they occurred in the context of Mr. Toenjes’ financial challenges, interim agreements on spousal support (as reflected in the consent orders), an agreement on division of matrimonial property that expressly left support issues unresolved, and occasional agreements on special expenses.

[ 40 ] The circumstances of the child must also be considered in applications for retroactive child support – even though needs are no longer the primary consideration in determining the amount of child support. [7] To the extent Ms. Toenjes’ affidavits speak of the children’s needs, they do so in the context of special expenses, primarily private schooling, about which the parties negotiated their respective shares. There is no evidence of any deleterious effect on the children caused by the shortfall. [ 41 ] Finally, I must consider whether a retroactive child support award would be a hardship to Mr. Toenjes.

As I will note later in another context, he is in proceedings under the Bankruptcy and Insolvency Act [8] , and has been obliged to make significant monthly payments to his creditors under a May 2010 proposal. His affidavit states that “the proposal was submitted and accepted by my creditors and payments were predicated on a budget including the current payment of $3,000.00 per month. . . .

Any significant change in the amount of owing . . . will impact the Proposal and most certainly would extend its time if not force bankruptcy.” In my view, that is a likely hardship which must be considered. [ 42 ] As in Russell v. Russell [9] , whether to award retroactive child support in this case primarily requires balancing the factors of delay in application by the recipient spouse on the one hand; and conduct of the payor spouse on the other hand. As noted above, I have also considered the other factors: circumstances of the children and potential hardship to Mr.

Toenjes. [ 43 ] Each of those factors and, more importantly, their combined effect weighs against retroactive child support in this case. The evidence shows no significant reasons for the delayed application. As Bastarache J. held for the majority in D.B.S. , where a delay is attributable to unreasonableness on the part of the recipient parent and not blameworthy conduct by the payor parent, the latter’s interest in certainty will be compelling. [10] Nothing in the evidence enables me to assign any blame to Mr. Toenjes for Ms.

Toenjes’ failure to act in a timely manner. [ 44 ] Therefore, I find that the court’s discretion to award retroactive child support should not be exercised in this case. C. Special or Extraordinary Expenses [ 45 ] By the conclusion of oral submissions, the only issues remaining with respect to the claim for special expenses under

section 7 of the Child Guidelines were the following: (

a) Ms. Toenjes’ claim for a retroactive adjustment of the parties’ contribution to private school expenses for 2005 through 2010; and (

b) Payment of Luke’s University of Calgary expenses (tuition, textbooks and some incidentals such as parking), totalling about $7,500 per year. [ 46 ] The evidence satisfies me that the parties’ agreed upon equal contributions to private school expenses ​ even though the children were not in private school before separation, and Mr. Toenjes had reservations about enrolling them in private school. In fact, Mr. Toenjes paid half of the expenses, while Ms. Toenjes’ father paid the other half. [ 47 ] It is now some years since the parties made that arrangement. I understand that Ms.

Toenjes now says she felt she had no alternative at that time. However, I am not convinced that I should retroactively order Mr. Toenjes to pay a higher amount in the face of the arrangement carried out between the parties, on an expenditure that might well have been legitimately disputed. [ 48 ] Luke’s University of Calgary expenses are relatively modest, as he lives with his mother, has some employment income and has received student loans and scholarships.

In these circumstances, I find the proper treatment is for the expenses born between his parents to be reduced by one third, to reflect a reasonable direct contribution by Luke to his education; with the remaining two thirds of the expenses to be divided between the parties according to their respective incomes, namely 88.26% to Mr. Toenjes, and 11.74% to Ms. Toenjes. (In other words, Mr. Toenjes’ obligation will be to pay 59% of Luke’s university expenses.)

[ 49 ] I understand that the parties are dealing with other special expenses by agreement. This decision does not affect those arrangements. VI. Spousal Support A. Entitlement [ 50 ] Ms. Toenjes did not address the issue of entitlement to spousal support in her brief or, until questioned, in oral argument. Mr. Toenjes, however, did not dispute some entitlement to spousal support, although entitlement to retroactive increases and the amount and duration of ongoing spousal support is disputed. [ 51 ] There is, therefore, very little evidence on the basis of which I can characterize entitlement. Ms.

Toenjes’ counsel submitted that there was entitlement on both compensatory and non-compensatory grounds. As for compensatory grounds, there is no evidence on the history of the relationship aside from the basic details of the length of the marriage and the fact (from which perhaps some weak inference can be drawn) that the two children have resided primarily with Ms. Toenjes over the nine years since separation. [ 52 ] The evidence adduced by Ms.

Toenjes that might go to entitlement (in addition to amount) of spousal support is directed to her need, based on low income-earning capacity and health problems. [ 53 ] There may be a difference in quantification of spousal support according to whether it is based on compensatory or non- compensatory grounds.

The state of the evidence requires me to make my assessment based on the non-compensatory approach. [ 54 ] A review of the basis for spousal support will be helpful, because factors relevant to entitlement are often also relevant to the proper amount of support. [ 55 ] The right to spousal support on marriage breakdown is not automatic. It will be ordered only where justified under

section 15.2 of the Divorce Act . [ 56 ]

Section 15.2(4) requires that when making a spousal support order, “the court shall take into consideration the condition, means, needs, and other circumstances of each spouse.” Specific factors to consider include length of cohabitation, functions performed during co-habitation, and any order or agreement relating to spousal support. [ 57 ]

Section 15.2(6) provides that the objectives of a support order should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[ 58 ] The objectives of a spousal support order that are potentially relevant on the limited evidence here are any economic disadvantages to Ms. Toenjes arising from the marriage breakdown, any economic hardship arising from the marriage breakdown, and the promotion of economic self-sufficiency. These factors are germane because as a divorced spouse, Ms. Toenjes must (absent court intervention) deal with her health and limited income concerns without the financial support that, but for the marriage breakdown, she would have had from Mr.

Toenjes ​ subject to the statutory requirement that her economic self-sufficiency be promoted. [ 59 ] It is instructive to review what Bracklow [11] holds concerning non-compensatory support. McLachlin J. (now C.J.C.) referred to it as based on the “basic social obligation” model of marriage, [12] which remains part of the mix of modern social reality and legal theory (along with the “independent, clean break” model).

She recognized that the mutual obligation theory “posits marriage as a union that creates interdependencies that cannot be easily unravelled,” and that in its modern version it acknowledges both the theoretical and legal independence of each spouse and their interdependence. “It postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails – including the potential obligation of mutual support.” [13] [ 60 ] McLachlin J. found that non-compensatory support is firmly mandated by the Divorce Act .

Section 15.2(4) requires that when making an order for spousal support or interim spousal support, a court must “take into consideration the condition, means, needs and other circumstances of each spouse.” The objectives of support orders under

section 15.2(6) extend to economic hardship arising from the breakdown of marriage, and might extend to “the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.” [14] That provision also recognizes that a spouse’s lack of self-sufficiency could be related to many factors, including ill health. [15] [ 61 ] In

summary, McLachlin J. rejected the contention that the Divorce Act contemplated only a compensatory basis for spousal support. Rather, she held: But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough. [16] [ 62 ] Ms. Toenjes relies primarily on her medical condition and limited earning capacity to establish need for spousal support.

I will address those in more detail when I consider the amount of spousal support that should be paid. However, I accept that there is a need that establishes entitlement to spousal support under

section 15.2 of the Divorce Act . Entitlement has not been disputed, and therefore it is unnecessary to consider whether there are any “negating factors,” as contemplated in Bracklow , [17] which would indicate that support should not be ordered despite need having been established. B. Amount of Spousal Support [ 63 ] The evidence of need relied upon by Ms. Toenjes in support of her claim for spousal support generally falls within three categories. First, Ms. Toenjes asserts that she is unable to earn more than her current very modest level of income. Second, she argues that Mr.

Toenjes’ budget shows ample means to pay additional support. Finally, Ms. Toenjes argues that her budget shows a frugal lifestyle, which does not enable her to enjoy special vacations or accumulate retirement savings. [ 64 ] Ms. Toenjes testified in her affidavits to health problems. The medical records are limited to the year 2007, during which she suffered a cardiac incident for which she continues to take medication, and was treated for ovarian growths. In addition, Ms.

Toenjes expressed concerns about voice difficulties, migraine headaches, and undiagnosed back problems, for which no medical records have been submitted. [ 65 ] The evidence does not show how extensive Ms. Toenjes’ child care responsibilities were in the past. Currently, I infer that those responsibilities are much less than full time. Her two sons are 16 and 19 years old; in two years, both will be of the age of majority. [ 66 ] I am not convinced on the evidence that Ms. Toenjes is disabled, by health or otherwise, from working towards greater

[ 66 ] I am not convinced on the evidence that Ms. Toenjes is disabled, by health or otherwise, from working towards greater economic self-sufficiency. That may be possible in part through piano teaching, as she has recognized the possibility of increasing hours ​ at least to the extent of taking some teaching responsibilities in July and August. Given her limited piano teaching credentials, however, it is possible that she must consider other forms of employment. [ 67 ] Of course, it is Ms. Toenjes’ decision whether to take these steps.

From the court’s perspective, the fact that she might not do so cannot be used to aid her claim for additional spousal support. There is no current medical evidence to support a reduced ability to work. Indeed, to her credit, Ms. Toenjes testified in her affidavit questioning that she does more each year with her piano business and plans to work more, advertise and get involved with the community of piano teachers. [ 68 ] The budget information and analysis in this case are limited. There are three budgets for Mr.

Toenjes, one forming part of his consumer proposal under the Bankruptcy and Insolvency Act , and two attached to Ms. Toenjes’ affidavit, with no explanation of their source or context. One of the latter budgets is for the year 2011, the same year as a budget submitted by Ms. Toenjes, and I therefore use it as the best basis for comparison. [ 69 ] Mr. Toenjes’ 2011 budget does not show extravagant living. His most significant expenditures are monthly payments to creditors, mortgage payments and support payments (including special or extraordinary expenses for his children).

After deduction of only his base support payments and payments to creditors, his monthly living expenses are approximately $4,600. [ 70 ] Ms. Toenjes’ budget reveals monthly living expenses of approximately $6,300. In addition to usual monthly expenses, she has additional medical expenses and generous charitable donations. Mr. Toenjes argues that, in addition, she has the benefit of tax deductions for some of her home expenses because she earns income out of her home. [ 71 ] On the evidence, I do not find a marked difference in standard of living between the parties.

Apart from their budgets, there is the assertion by Ms. Toenjes in one of her affidavits that Mr. Toenjes was “incurring huge debts by living an extravagant lifestyle, going on trips and cruises, including to England and to Venezuela, fishing trips, trips to resorts and all the expenses that go with such trips. Since the separation, [Mr. Toenjes] has bought or leased at least five vehicles.” I place little weight on those assertions, given the nine- year time since separation over which these expenses would have occurred, and the fact (as asserted by Ms. Toenjes) that at least Mr.

Toenjes’ flight costs are probably nominal. [ 72 ] Ms. Toenjes argues that when considering the monthly resources of the parties, I should add net monthly income of approximately $1,521 for Mr. Toenjes’ current spouse. Again, the evidence on this point is sketchy. There is some information in Mr. Toenjes’ income tax returns and consumer proposal about income earned by Mr. Toenjes’ current spouse. However, there is no sworn testimony about her current income or employment circumstances.

Further, there is no evidence of how intermingled their financial affairs are or what additional expenses should be added if her income is included. I am, effectively, asked to draw conclusions from numbers scattered over various financial documents, without explanation. [ 73 ] Nevertheless, there is a reasonable inference that Mr. Toenjes has a financial benefit from cohabiting with his current spouse, which contributes to the means he has available to make spousal support payments, within the meaning of

section 15.2(4) of the Divorce Act . It is a factor I include in my considerations. [ 74 ] Ms. Toenjes argues that Mr. Toenjes’ creditor difficulties arise from his own improvident spending. The basis for this assertion is the document Mr. Toenjes completed as part of his consumer proposal. He stated the reasons for his financial difficulties as: “recession; poor decisions; over-extension of consumer credit.” Those words cover a wide range of possible causes of financial difficulty and, in my view, are far from an admission of improvidence of the nature that should influence assessment of spousal support. [ 75 ] In

summary, the budget information in evidence does not convince me of a significant differential between these parties’ standards of living. Of course, Mr. Toenjes’ annual income far exceeds Ms. Toenjes’ income. However, he also has extensive financial commitments and there has already been a distribution of matrimonial property. For the purpose of determining the amount of support based on the non-compensatory model, the budgets are of little assistance to Ms. Toenjes. [ 76 ] As stated above, Ms. Toenjes has satisfied me that she has a need within the principles of the Divorce Act and the applicable authorities.

Her need is based on health difficulties which, on the evidence, occurred primarily in 2007 and perhaps shortly thereafter;

and her limited qualifications for employment. [ 77 ] However, her income from piano teaching has shown a potential to increase, and she is prepared to make modest adjustments to further increase earning from that source. The principles of the Divorce Act require me, where possible, to make an order that promotes her economic self-sufficiency within a reasonable period of time, not one that would have the opposite effect.

The order I make rests on the assumption, founded on the evidence and the principles of the Divorce Act , that her health does not preclude her from increasing her income and she has economic scope to do so, most likely by increasing her teaching hours and promoting her services, or looking for supplementary or replacement sources of income. Finally, I take into account that in two years both of her children will be of the age of majority. [ 78 ] Likewise, I find that Mr.

Toenjes has means to make spousal support payments, because of his much higher annual income, cohabitation circumstances, and anticipated release from obligations to creditors. [ 79 ] As part of my analysis, I have taken into account the recommendations of the Spousal Guidelines , calculated according to the basic biographical, income and relationship facts of this case. They generate a range of suggested monthly payments from $2,699 to $3,533, with a mid-point of $3,166; and a duration from 9.5 years to 19 years. [ 80 ] As in most cases, the Spousal Guidelines are a useful cross-check to apply.

In this case, I also have particular regard to a lengthy post-separation pattern of spousal support payments and a significant debt problem on the part of Mr. Toenjes (which, while not the responsibility of Ms. Toenjes, nevertheless becomes a relevant consideration under s. 15.2 (4) of the Divorce Act ). Further, I take into account that the income I have used for Ms.

Toenjes in the Spousal Guidelines calculations ($22,000 per year) is, in my view, not fully representative of her potential. [ 81 ] In all of the circumstances, I find that monthly spousal support payments should be maintained at the level of $1,300 through July 2013; commencing August 2013, there will be an additional payment of $1,550 per month (total of $2,880) for two years, ending in July 2015. Spousal support payments will end at that time. C. Retroactive Spousal Support [ 82 ] Ms. Toenjes’ claim for retroactive spousal support commences with the year 2005.

A claim for retroactive support covering seven and a half years, during which court orders were in place, raises many difficulties, quite apart from whether the support paid (which varied from $1,700, to $1,200 , and finally $1,300, the current amount) was inadequate. [ 83 ] It has now been authoritatively confirmed in Kerr v.

Baranow [18] that when considering applications for retroactive spousal support, “similar considerations to those set out in the context of child support are also relevant”​ those being the factors applied in D.B.S . [19] However, because spousal support is founded on different legal foundations than child support, “concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support” of a retroactive nature. [20] [ 84 ] I will therefore base my findings on the four factors set out in D.B.S. [ 85 ] Excuse for Delay. Ms.

Toenjes gives no reason for delaying her application for additional spousal support, other than her right to do so under the consent orders and a without prejudice letter dated May 22, 2007 from her lawyer to Mr. Toenjes’ lawyer, proposing settlement of custody, access, child support, spousal support and matrimonial property issues. In part of the letter, requesting spousal support, Ms. Toenjes’ lawyer states: Due to my client’s health situation, it is not possible for her to support herself beyond her current income and she will require indefinite support.

The support requested is intended to address both needs-based and compensation-based support concerns, as my client made significant financial and educational sacrifices for the sake of the family and marriage.

[ 86 ] That statement, in the context of a global without prejudice offer, does not constitute effective notice of a claim for higher spousal support relevant to the application before me. Further, I note that 2007 was the year Ms. Toenjes had the medical problems described in the exhibits before the court. There is very limited evidence supporting her assertion of current partial disability. [ 87 ] In my view, no reasonable explanation has been put forward to justify seeking retroactive support over the many years in which payments were being made pursuant to court order. [ 88 ] Conduct of Payor.

In the context of child support obligations, Bastarache, J. held that “courts should take an expansive view of what constitutes blameworthy conduct,” and characterized such conduct as anything that prefers the payor’s interests to a child’s right to support. [21] Ms. Toenjes has not expressly alleged blameworthy conduct against Mr. Toenjes. There is no evidence that he failed to disclose his annual income within a reasonable time, and I have not accepted the suggestion that his financial problems have been proved to result from blameworthy improvidence. [ 89 ] Circumstances of Recipient Spouse. To her credit, Ms.

Toenjes has lived within her means, albeit with generous support from time to time from her relatives. She has also been aided by the settlement of her matrimonial property claim. I accept the submissions of Mr. Toenjes that she has been able to support herself based on the income (including support) and assets available to her over the past number of years. Perhaps, with a more timely application, she could have obtained additional spousal support. Different considerations, however, apply to a retroactive claim. [ 90 ] Hardship of Payor. For whatever reasons, Mr.

Toenjes has suffered financial adversity to the extent that he has been involved in proceedings under the Bankruptcy and Insolvency Act . He makes a significant monthly payment to his creditors. It appears that the accepted proposal was made in May 2010. In his affidavit, he stated that “the proposal was submitted and accepted by my creditors and payments were predicated on a budget including the current payment of $3,000 per month to [Ms. Toenjes].

Any significant change in the amount owing. . . will impact the Proposal and most certainly would extend its time if not force bankruptcy.” In my view, that is a significant intervening event which weights heavily against a retroactive award of spousal support. [ 91 ] I therefore dismiss the claim for retroactive spousal support. [ 92 ] In light of my finding, it is unnecessary to consider whether, in the absence of concerns about a retroactive claim, more spousal support should have been paid in earlier years. Even if that determination were necessary, it would not be possible on the evidence before me.

There is no evidence of the parties’ condition, means, needs and other circumstances for most of the post-separation period, nor do I have any basis to compare their post-separation standards of living with what they enjoyed before separation. For the most part, the retroactive claim is based simply upon income information and Spousal Guidelines calculations. D. Effect of Matrimonial Property Division [ 93 ] Mr. Toenjes argues that Ms. Toenjes received more than an equal share of matrimonial property, and the excess should be credited to Mr. Toenjes’ spousal support obligations. [ 94 ] Mr.

Toenjes primarily relies on clause 14 of the Matrimonial Property Distribution Agreement, which provides that the agreement is a final settlement of all matrimonial property issues; but that the parties acknowledge that retroactive and ongoing child and spousal support are unresolved; and they “specifically agree that this property agreement shall not preclude the Husband from arguing the Wife has received an unequal distribution of property and this Agreement shall not prohibit any court of competent jurisdiction from taking the distribution of matrimonial property into account when deciding the issues of retroactive and ongoing child and spousal support.” [ 95 ] Mr.

Toenjes deposed in his affidavit that this is an acknowledgment that Ms. Toenjes received an unequal distribution. In my view, the agreement does nothing more than allow Mr. Toenjes to make the argument that there has been an unequal division and that, if he is successful in that argument, he may argue that the unequal distribution should be considered when determining support obligations.

[ 96 ] Mr. Toenjes’ evidence on the alleged unequal distribution is contained in several paragraphs of his affidavit. They refer to an approximate appraised value and debt level on the matrimonial home, approximate equity value on another home Mr. Toenjes has with his current wife, and approximate values for vehicles and WestJet shares. [ 97 ] In response, Ms. Toenjes deposed that there was never a common understanding that the property was unequally divided.

She further asserted that neither party made an accounting of the total matrimonial property, “so it was unknown precisely what an equal distribution would look like.” She further testified that there was an understanding that each of them would take certain assets, and that in addition to those referred to in Mr. Toenjes’ affidavit, account would have to be taken of Mr. Toenjes’ WestJet investments and benefits (including RRSP and stock options) and a new vehicle purchased at the time of separation.

Further, she attached an appraisal which showed a materially different valuation of the matrimonial home than the one asserted by Mr. Toenjes. [ 98 ] This is not an application to divide matrimonial property. I agree with Mr. Toenjes’ submissions that an unequal division may be a factor when determining the proper amount of spousal support.

However, it would only be a factor ​ not necessarily determinative, and not likely to result in a dollar-for-dollar offset. [ 99 ] To determine whether property division should be a factor, the court would need sufficient evidence to make findings of what property was divided and the value of all of the assets. There is almost no evidence before me on those matters, and what there is is in dispute. Thus, I am unable to find whether there was an unequal distribution, and if so, to what extent and, finally, to take it into account in my findings on spousal support. VII.

Summary [ 100 ] For the reasons given: a. The application for additional child support and spousal support for the period before April 1, 2012 is dismissed; b. Mr. Toenjes will make base child support payments in the amount of $2,306 per month commencing April 1, 2012 (with a credit for amounts paid from that date to the present); c. The application for an additional contribution by Mr. Toenjes to private school expenses for 2005 through 2010 is dismissed; d. Mr. Toenjes will pay 59% of the tuition, text books and incidental expenses incurred for Luke’s attendance at the University of Calgary; and e. Mr.

Toenjes will continue to pay to Ms. Toenjes spousal support in the amount of $1,300 per month through July 2013, and commencing August 2013, will pay $2,880 until July 2015, at which point spousal support payments will end. [ 101 ] The parties have leave to speak to costs, if necessary. Heard on the 24 th day of April, 2012.

Dated at the City of Calgary, Alberta this 22nd day of June, 2012. G.H. Poelman J.C.Q.B.A. Appearances: Norbert Poschwatta, Poschwatta Law Office for the Plaintiff Penny L. Pritchett, Jivraj Knight Pritchett for the Defendant [1] RSC 1985, c. 3 (2nd Supp.), as am. [2] SOR/97 - 175, as am. [3] Child Guidelines, s. 3(1). [4] Ottawa: Department of Justice, 2008. [5] Sawatzky v. Sawatzky, 2008 ABCA 355, 440 A.R. 267, paras. 13 - 17. [6] 2006 SCC 37, [2006] 2 S.C.R. 231. [7]D.B.S., paras. 110 - 113. [8] R.S.C. 1985, c.B-3. [9] 2010 ABQB 526. [10] D.B.S., para.102. [11] Bracklow v. Bracklow, (SCC), [1999] 1S.C.R 420, paras. 23 and 25. [12] Bracklow, paras. 23 and 25. [13] Bracklow, para. 30.

[14] Bracklow , para. 41 . [15] Bracklow , para. 42 . [16] Bracklow , para. 43 . Original emphasis. [17] Bracklow , para. 49 . [18] 2011 SCC 10 , [2011] 1 S.C.R. 269. [19] Kerr v. Baranow , para. 207 . [20] Kerr v. Baranow , para. 208 . [21] D.B.S. , para. 106 .