Fewer v. Fewer, 2016 NSSC 244

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Citation: Fewer v. Fewer , 2016 NSSC 244 Date: 20160921 Docket: 1201-066485 Registry: Halifax Between: Karen Ann Fewer Petitioner v.

Fabian Aloysius Fewer Respondent ______________________________________________________________________________ LIBRARY HEADING ______________________________________________________________________________ Judge : The Honourable Justice Beryl MacDonald Heard : August 2 and 9, 2016, Halifax Nova Scotia Keywords: Family, Variation, Entitlement and Quantum for Child Support and Spousal Support, Imputing Income, Third Party Insurer Direct Payments Legislation: The Divorce Act , R.S., 1985, c.3 s.17 Federal Child Support Guidelines, s.3, s.9

Summary: The parties had been in a relationship for 27 years. The Respondent had not been employed independently since 1996 and relied on the Petitioner for financial support. The Petitioner suffered a substantial reduction in income because of illness. A third party insurer provided direct payment to cover the Petitioner’s mortgage and line of credit. The Respondent had recently purchased a business from which he could earn a yearly income of $60,000.00. One child was attending university but did not live with either parent. Another child was in a shared parenting arrangement.

Payments made by the third party insurer directly to the petitioner’s bank to pay her mortgage and line of credit are not income for the calculation of child and spousal support. The Respondent was entitled to spousal support but his income was imputed to be $60,000.00 annually. The parents were to share the

section 7 expenses for the child in university proportional to their incomes. They were to use the set off to calculate child support for the child in the shared parenting arrangement. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT ’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRA RY SHEET.

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Fewer v. Fewer , 2016 NSSC 244 Date: 20160921 Docket: 1201-066485 Registry: Halifax Between: Karen Ann Fewer Petitioner v. Fabian Aloysius Fewer Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: August 2 and 9, 2016 Counsel: Jocelyn M. Campbell, Q.C. counsel for the Petitioner; Deborah I. Conrad, counsel for the Respondent By the Court: [ 1 ] This is a request to vary a Corollary Relief Order. Background [ 2 ] In June 2011 the Mother and the Father separated after a 27 year relationship. For 23 of those years they were married.

They were divorced on April 15 th , 2013. [ 3 ] When they married the Mother was pursuing her education in Newfoundland. She was studying to become a medical physician. The Father worked as a salesman. The Father had completed grade 12 and had pursued other educational opportunities eventually completing a college business management program in 1996. The Mother paid for his enrollment and the child care required while he completed his studies. His work had supported her during her studies.

In 1996 they decided to move to rural Nova Scotia where the Mother was in private practice eventually in association with others in a medical clinic. [ 4 ] The parties had three children. When they separated their children were 16, 15 and 11 years old. [ 5 ] On March 30 th , 2012 the parties signed a Separation Agreement that was incorporated into their Corollary Relief Order issued March 14, 2013. The Order indicated that the oldest child, a daughter, remained in the primary care of the Mother. The parents shared the care of the two other male children. The Mother’s total annual income was $300,000.00.

The Father had been her “bookkeeper” but was now unemployed and was a “stay-at-home” father. The Mother was to pay $3,593.00 per month in table guideline child support to the Father for the support of their two sons. The Father did not pay any child support to the Mother. The Mother was to pay the Father $5,332.00 per month for spousal support. [ 6 ] The Father received ownership of the matrimonial home and three other parcels of land in exchange for paying $110,000.00 to the Mother. The home and land had a total value of $313,600.00.

The Mother paid off the existing mortgage on the matrimonial home so the Father could negotiate a mortgage on the property to pay her the $110,000.00. The RRSP’s were divided equally providing the Mother and the Father with approximately $250,000.00 each. Essentially, there was an unequal division of property in favor of the

Father. [ 7 ] In October, 2015 workplace and personal stressors resulted in the Mother taking medical leave from her practice. As a result she lost her source of income. She was diagnosed to be suffering from depression. She used some of her RRSP investments, a line of credit and credit cards to pay her expenses including child and spousal support. She eventually could not maintain the support expenses and fell into arrears in December 2015. [ 8 ] The Mother had two policies of insurance. One was personal health insurance with income replacement in the event of illness or disability.

This policy presently provides her with income replacement of $6,900.00 per month as long as she is accepted to be disabled as a result of her mental illness. Her claim was approved commencing December 2015, but she continuously must resubmit confirmation from her physicians about her disability. The second insurance policy was obtained through RBC to cover payment of her mortgage and line of credit should she be unable to work because of illness or disability. Payment under the RBC policy is applied directly on those debts. The money is not paid to her.

This claim was approved commencing January 29, 2016 and also requires her to periodically confirm her entitlement. [ 9 ] Because the Mother, in addition to spousal support and child support, was paying for the two oldest children’s tuition and living expenses while they pursued their post-secondary education, she found it necessary to liquidate considerable amounts from her RRSP and use her line of credit and credit cards as well. [ 10 ] On February 2, 2016 the Mother filed a Notice of Variation Application.

There are material changes in the Mother’s income, and in the care arrangements for the children, that justify a variation of the Corollary Relief Order. Relief Requested [ 11 ] I understood at the beginning of this proceeding that the Mother was not pursuing her retroactive recalculation claim for any period prior to January 1, 2016. If I am mistaken I retain jurisdiction to resolve this issue. [ 12 ] In testimony the Father acknowledged that, at the time the parties separated, he was expected to find employment and become self-supporting.

The Mother alleges he is or can be self-supporting and is no longer entitled to spousal support. In addition, she requests that no child support is to be paid to the Father for the oldest son, that they proportionally share his

section 7 expenses, and that child support for the youngest son is to be based on a set off with a proportional sharing of his

section 7 expenses. [ 13 ] The Father did not believe the Mother was disabled by depression. He suggested she was faking her symptoms. During his testimony he begrudgingly accepted the diagnosis given by those who are treating the Mother. He recognized that her income is not what it had been and that some variation is likely. However, he requested an inclusion of the amounts paid directly on her mortgage and line of credit in the determination of her income. He suggested he should still receive table guideline child support, or a set off, for their oldest son.

Dependent Children [ 14 ] The parties’ oldest son remains enrolled in University. He is a dependent child. He expects to complete his studies in April 2017. He shares an apartment in Halifax with his girlfriend. The Mother continues to provide him with financial support. He does not live with the Father although he may occasionally visit and sleep there. I do not have a calculation of his expenses for 2016. I do know that in 2015 he received $47,200.00 in dividends from the Fewer Family Trust. This trust was established in 2011 by the Mother when she incorporated her medical practice.

The only money received by the trust comes from the income earned by the Mother. The insurance money she now receives is paid to her personally, not to the Trust. Under these circumstances it is inappropriate to require the Mother to pay the Father child support for this son. Table guideline child support is terminated as of December 31, 2015. The Mother, the Father, and this son need to develop a budget for his 2016 and 2017 expenses to determine what deficit he will have after taking into account any remaining RESP money available to him, his savings from earnings, bursaries etc.

Although the Federal Child Support Guidelines provide me with discretion to require the parties to pay that deficit proportional to their incomes I will not do so. I do not know what that deficit might be and cannot assess either parties’ ability to pay what may be required. Unfortunately for these parents my inability to order a sharing of this son’s expenses may necessitate another court application if they cannot settle this issue between them. [ 15 ] The parties’ youngest son remains in a shared parenting arrangement.

Commencing January 1, 2016 the set off formula is to be applied in respect to his child support. The following

section 7 expenses for this son are to be paid proportional to the parties’ income: (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100.00 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; Although these expenses are to be examined through the lens of need and ability to pay, their need is generally obvious and there are professionals involved in assessing that need. Both parents should be contributing. Any sharing of the following

section 7 expenses is left to the agreement of the parties because I have no evidence from which to assess need and ability to pay and these involve choices in which no professionals are involved: (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities.

Spousal Support Entitlement [16] In Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420 the Supreme Court analysed the statutory objectivesdescribed in the Divorce Act, R.S. , 1985, c.3 s.15 and decided they create three rationales for spousal support: 1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage orfrom the roles adopted in marriage. 2. Non-compensatory dependency based support, to address the disparity between the parties, needs and means upon marriagebreakdown. 3.

Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financialobligations to each other. [17] These rationales take into account both the factors set out in s. 15.2 (4) and the objectives set out in s. 15.2 (6) and also apply tovariations pursuant to s. 17. [18] The Supreme Court did recognize that many claims have elements of two or more of the stated rationales. It confirmed thatanalysis of all of the objectives and factors is required.

Pigeonholing was to be avoided. [19] Examples of circumstances that may lead to a decision that a spouse is entitled to compensatory support are:

a) a spouse’s education, career development or earning potential have been impeded as a result of the marriage because, forexample: - a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career oreconomic independence to provide care for children and/or a spouse; - a spouse’s education or career development has been negatively affected by frequent moves to permit the otherspouse to pursue these opportunities; - a spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from theworkforce for family reasons.

b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or careerdevelopment. [20] The perceived economic disadvantages of the spouse must be balanced against advantages received.

Also a spouse is notentitled to support just because he or she suffered economic disadvantage if the other spouse did as well. [21] Non-compensatory support incorporates an analysis based upon the concepts of economic dependency, need and ability to pay.If spouses have lived fully integrated lives, so that the marriage creates a pattern of economic dependence, the higher-income spouse is tobe considered to have assumed financial responsibility for the lower-income spouse.

In such cases a court may award support to reflectthe pattern of dependence created by the marriage and to prevent hardship arising from marriage breakdown. [22] This non-compensatory analysis articulated in Brackow was suggested by L'Heureux-Dubé, J. when she wrote in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 p. 39 Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v.Linton, supra).

Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support areoften a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded asa joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim toequal standards of living upon its dissolution (see Rogerson, "Judicial

Interpretation of the Spousal and Child Support Provisions of theDivorce Act, 1985 (Part I)", supra, at pp. 174-75). (emphasis added) [23] This analysis is often described as the “lifestyle argument” - that the spouse should have a lifestyle upon separation somewhatsimilar to that enjoyed during marriage. (Linton v. Linton (ON CA), 1990 CarswellOnt 316 (Ont. C.A.) A lengthymarriage generally leads to a pooling of resources and an interdependency even when both parties are working. Usually the recipientspouse will never be able to earn sufficient income to independently provide the previous lifestyle.

However, there is no requirement thatspousal support in a lengthy marriage must be lifetime support. [24] Except until very recently, the Father has not earned income independent of the Mother since they moved to Nova Scotia in1996. He did her accounting and stayed at home. They each have different recollections about how much responsibility he shouldered incaring for the children and looking after the household. Nevertheless, and despite what the Mother may have wanted, the Father becameand remained completely financially dependent upon the Mother. This is the reality of their relationship.

Whether she liked it or not,whether he merely took advantage or not, he did not pursue his own opportunities for career development. The Mother cannot now useher dissatisfaction to suggest he is no longer entitled to spousal support. When the Separation Agreement was signed she recognized thathe did have an entitlement. In this proceeding the Father acknowledged he was expected to find employment and become self-supporting.However, given the circumstances of their relationship, he had significant entitlement both on compensatory and non-compensatorygrounds.

The current issue is whether the Father has overcome the disadvantages he has suffered; whether he is self-sufficient and, as aresult, no longer entitled to continuing spousal support. In order to answer this question I am required to determine the Father’s income.

The Mother has argued that the Father’s declared income for income tax purposes does not fairly represent the income he can earn. Income Determination Mother’s Income [25] The Mother’s income is presently derived from non-taxable insurance benefits. One policy of insurance was to provide incomereplacement. The Mother acknowledged the benefits she receives under this policy must be grossed up for tax to determine a properamount of child support. [26] The Mother’s disability income replacement provides her $6,900.00 per month; $82,800.00 per year. Counsel have providedtwo different gross up amounts.

The calculation from Divorce Mate is $122,565.00. The Child View amount is 123,958.00. The incometax regime appears to be constantly changing and this may account for the difference. The calculation I received based on the mostrecent Federal Budget is $123,507.00. I will use this amount. [27] The Father has argued that the direct mortgage and line of credit payments must be included as income to the Mother and thenare to be grossed up for tax. He has used an analogy to the expense amounts that are deducted to reduce tax by persons operating aproprietorship or a partnership.

We often include these amounts as income and add these to the line 150 income reported on that person’sincome tax return. However, these are amounts of money actually received by the payor. The deductions are allowed for tax purposesthus reducing line 150 income. In this case the Mother has no control over the money paid directly to her bank. These payments are notreducing her income; they are paying for an expense. This money does not pass through her hands. She cannot redirect this money toother uses. [28] Should this expense payment insurance be categorized as “income” for child support and spousal support?

The only case I havefound discussing this specific issue is from the New Brunswick Court of Appeal in M.(M.W.) v M.(H.L.) 2010 NBCA 86. In this case themotion judge included disability insurance payments made by a third party insurer to the father’s financial institution to pay his bi-weekly mortgage payment and the interest on his line of credit. He did so pursuant to s. 19 of the Federal Child Support Guidelinestaking into consideration the comments of Justice Steel in Donovan v.

Donovan, 2000 MBCA 80 : Section 19(1) of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse “as itconsiders appropriate in the circumstances,” which circumstance includes nine defined situations. The defined situations are not anexhaustive list and the

section gives the court a significant amount of discretion in imputing income. [29] The sole issue before the New Brunswick Court of Appeal was “…whether payments made by a third party insurer toward twospecific debts of the applicant father (a mortgage payment and an interest payment on a line of credit) constitute income to be taken intoconsideration in the calculation of child support, in accordance with the Federal Child Support Guidelines.” The New Brunswick Courtof Appeal decided these payments were not income. [30] The Federal Child Support Guidelines do not define “income”.

Section 16 directs income is determined as follows: 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Totalincome” in the T1 General Form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [31] The T1 General Form includes “disability benefits included on line 114(box 16 of the T4A(

P) slip). However, the disabilitybenefit in this case will not appear in line 114 because it is a non-taxable benefit. For tax purposes this disability benefit is not “income” [32] This Form does have a category “other income”. Because the Form specifically excluded non-taxable disability benefits I do notaccept that they are to be included under “other income”. [33] The Income Tax Act does not define “income” and it is generally left to the courts to determine what should be included in thiscategory.

The Supreme Court of Canada in Wood v MNR (SCC), [1969] SCR 330 directed that “income is to beunderstood in its plain ordinary sense and given its natural meaning.” An examination of various dictionary

definitions suggest “income”is the amount of money received in exchange for labour or services, from the sale of goods or property or as a profit from financialinvestments. None of these apply to the third party payments to the Mother’s bank resulting from a disability insurance policy shepurchased to pay her mortgage and line of credit during a time when she was unable to work due to illness or disability. [34] The Husband suggests these third party payments should be imputed as income to the Mother.

Section 19 of the Federal ChildSupport Guidelines provides: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so;

(

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate thanemployment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. Only s.19 (1) and s.19 (1) (

b) are relevant to this proceeding. [35] Courts across Canada have generally adopted the

interpretation of s. 19 (1), articulated by Steel J.A. in Donovan v Donovan,supra at para. 13, that “…the defined situations are not an exhaustive list and the

section gives the court a significant amount ofdiscretion in imputing income.” But does this mean that any money that is given to or for the benefit of a payor can be called “income”without reference to any usual definition of the word? A review of cases can lead to the conclusion that any money that benefits thepayor, regardless of the source or reason for the payment, must be included in child support because children deserve to be supportedfrom all money provided to or for a parent.

This certainly appears to be the underlying premise in cases such as Snelgrove v Snelgrove2011 NSSC 77 and Darlington v Moore 2013 NSSC 103. But in each of these cases, and in many others discussing disability payments,the money provided went directly to the recipient and could comfortably be categorized as income replacement. In each case therecipient could have directed the money received to the payment of child support.

The recipient had “control” over the money. [36] In M.(M.W.) v M.(H.L.) 2010 NBCA 86 the lack of control over the money paid appeared to be a deciding factor as was thecourt’s decision that the money paid was “…. not of a nature similar to income.” (para. 23). It is appropriate to ensure that a parentdirects money, over which she or he has or can have control, towards the support of a child. It is a very different circumstance to require aparent to pay child support based upon money he or she never personally receives.

Although imputing income in circumstances when aperson is unemployed or underemployed may appear to have the same implications, that person has control because the expectation isthat employment or better employment can be found to provide the expected income. Whether that happens is up to the parent. There isnothing the Mother can do to redirect the money paid by her insurer to her bank. [37] The money paid directly by the insurer to the Mother’s bank is not to be included as income either for child or spousal support.

Father’s Income [38] The Father did acquire a real estate license and became affiliated with Exit Realty Metro. He did not make any substantialincome from this work and has testified he is not actively involved in the real estate business at this time although in 2014 he did have$17,000.00 as commission income. [39] In 2012 his only yearly income was spousal support in the amount of $63,984.00. That year he was also receiving non-taxablechild support in the total amount of $43,116.00.

He was able to put $9,000.00 into his RRSP. [40] In 2013, in addition to his spousal support, the Husband declared a commission income loss of $2,116.16.The gross commissionamount he declared was $1,755.96. He also reported RRSP income of $12,471.25. He testified that he used this money in June 2013 topurchase an approximately 50 acre parcel of land in Middle Musquodoboit. The tax assessment value for that land is presently$57,600.00. There is no mortgage on this land.

The Husband testified he intends to build a seniors housing complex on this land but hehas no plans developed and he has done nothing to bring this dream into reality. [41] In January, 2014 the Husband purchased a convenience store and the land upon which it is located in Middle Musquodoboit.The tax assessment value is $115,600.00. At this time he also acquired a parcel of land directly adjacent to the land on which theconvenience store is located. The tax assessment value for that land is $18,900.00.

He obtained a mortgage to acquire both properties. [42] On his 2014 Income Tax Return, in addition to spousal support, and RRSP income of $57,142.86, and commission income of$17,000.00 the Father declared $10.70 as personal net income from the convenience store. His statement of business activity declares agross profit of $119,533.59. From this he deducts $119,522.89 as business expenses leaving a net personal income of $10.70. Howeverhe is paying $84,479.83 in salaries the largest of which is paid to his sister. He pays her approximately $50,000.00 per year.

Afterhearing his evidence about employee and his personal responsibilities in respect to this business I am satisfied that he could pay himselfthis $50,000.00 and still cover the required duties performed by his sister and himself. This may be unfortunate for his sister but he is inbusiness to earn his own income. Providing income to members of his extended family must be secondary to his need to become self-supporting.

I also note that in 2014 he did pay $10,000.00 into an RRSP. [43] The Father has an asset that will permit him to contribute to his personal financial needs and to the support of his children.Many spouses who separate after a lengthy marriage do not have the opportunities he has. The unequal division of matrimonial propertyhas contributed to his present successes.

Nevertheless, although the Father has income and assets, given the length of the marriage, hisparenting responsibilities for the youngest son, his only recent financial success, and the financial dependency created during themarriage he continues to have an entitlement to compensatory support.

Spousal Support Quantum and Duration [44] Once it is decided that a spouse is entitled to spousal support, the quantum and duration are to be determined by considering thelength of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, and thecondition, means, needs and other circumstances of each spouse.

In considering the condition, means, needs and other circumstances ofeach spouse one may examine the division of matrimonial property and consider the extent to which that division has adequatelycompensated for the economic dislocation caused to a spouse flowing from the marriage and its breakdown and any continuing need thespouse may have for support arising from other factors and other objectives set forth in s. 15(2). (Tedham v.

Tedham 2005 BCCA 502, 2005 CarswellBC 2346 (B.C.C.A.) [45] Generally a non-compensatory claim, and often also a compensatory claim, in a short to mid length marriage is satisfied when a

spouse becomes self-supporting and, in such a case, neither the payor spouse’s greater income nor the inability of a recipient spouse to replicate a previous lifestyle, is a factor entitling a spouse to continuing support. Self-sufficiency, however, is a relative concept. It constitutes something more than an ability to meet basic living expenses.

It incorporates an ability to provide a reasonable standard of living from earned and other income exclusive of spousal support. [ 46 ] In this case the parties have made reference to the spousal support guidelines in each of their submissions about the quantum and duration of spousal support to be paid. [ 47 ] If the advisory guidelines are to be used the instructions provided in “The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version” - March 2010 prepared by Professor Carol Rogerson and Professor Rollie Thompson. under the headings “Grossing-up non-taxable income” and “ Non-taxable payor income” must be considered.

The Mother has provided calculations using the “with child support” formula. Rogerson and Thompson indicate in the guide that: “the “with child support” formula’s use net income rather than gross income to calculate spousal support, but you still have to input the income data correctly in the software. Any non-taxable income will be directly inserted into the net income calculations for spousal support by the software for these formulas.

But remember that any non-taxable income will have to be grossed up by the software to determine the correct amount of child support.” They further note that the exception for non-taxable payor income may not be required: “Note in particular that there will be no need to do any adjustment for non-taxable income in cases under the with child support formula because the calculations under that formula work with net incomes.” The reason for the exception appears to be because the payor, whose only income is non- taxable, is unable to deduct the spousal support paid contrary to the assumption built into some of the formulas, in particular the “without child support formula”. [ 48 ] The Divorce Mate calculations I have been provided may have taken into consideration the information provided by Rogerson and Thompson.

The problem I have is that I have not been given the input information. Again I quote from Rogerson and Thompson (under heading “Income”): “ Under the with child support formula, there is much more room for error in inputting income, as the formula is a net income formula and thus is sensitive to each form of income, as different taxes, deductions, credits, CPP and employment insurance contributions will attach to different kinds of gross income. For example, a person receiving CPP or any other form of pension income will not pay CPP or EI contributions (which are deducted from employment income)”.

I have no information to confirm whether these deductions are applied although I expect they are not deducted by the insurer. The program calculation may have applied these deductions. If counsel intend to use these calculations the input information must be provided as well. As a result calculations that have been provided are not as useful for the calculation of spousal support as they might have been.

I have considered them as I have reviewed each of the parties’ Statements of Expenses, the assets remaining to the Mother, the assets received by the Father when the parties separated and those purchased by him since then. [ 49 ] The Mother will be required to pay the Father the child support set off amount of $601.00 per month; this is $7,212.00 per year. I have reduced the Mother’s expense budget and in particular I eliminated her expense for the mortgage and the line of credit.

I did however consider that she did not claim any child related expenses and she will have these for the youngest son when he is in her care. I have estimated her reasonable expenses to be $4,800.00 per month; this is $57,600.00 per year. With child support her expenses will be $64,812.00 per year leaving her $17,988.00 from which to pay spousal support. If all of this potential surplus is used this would require her to pay $1,499.00 per month as spousal support. However this would leave her with no financial capacity to pay any

section 7 expenses. Taking everything into consideration I have decided the Mother is to pay spousal support in the amount of $1,200.00 per month. Interestingly one of the Divorce Mate calculations using the incomes I have used suggests $1,220.00 as a mid-range for spousal support. Given the uncertainties in each parties’ circumstances the duration is indefinite. [ 50 ] I have been asked to comment on the “formula” for payment of child and spousal support to be used if the Mother returns to work earning the income she did previously.

I gave serious consideration to the request but recognized that the Mother may not return to work under the same or similar payment circumstances. I do not know whether the Father’s business will continue to thrive. As a result it would be inappropriate for me to speculate about what may or should happen in the future. [ 51 ] The parties may wish to address the issue of costs. I am prepared to accept submissions orally or in written form. ________________________________ Beryl A. MacDonald, J.