2023 MBKB 110, 2023 MBKB 110

Date: 20230630 Docket: FD 17-01-18109 (Winnipeg Centre) Indexed as: J.M.A. v. L.A.M. Cited as: 2023 MBKB 110 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: j.m.a., ) Catherine A. Kelly ) for the petitioner petitioner, ) ) - and - ) Jurgen W. Feldschmid ) for the respondent L.A.

M. , ) respondent. ) ) Judgment Delivered: ) June 30, 2023 MacPHAIL J. [ 1 ] This trial involved the respondent’s claim for retroactive and ongoing common-law partner support, oppression and other remedies relating to a jointly-held corporation, and an order respecting distribution of the net proceeds from the sale of the former family home being held in trust by her counsel’s firm. [ 2 ] The trial was originally set to proceed in person, but could not as a result of the illness of one participant.

The petitioner requested an adjournment of the trial, but given the length of time that would have entailed, and taking the respondent’s position into account, I ordered that the matter proceed via MS Teams videoconference on the following day. Out of an abundance of caution, a few additional trial continuation days were scheduled a few months later in case the matter could not conclude in the three days remaining.

As it happened, the trial was unable to continue on the third day and was adjourned to the first additional trial continuation day, when it proceeded with in-person attendances. [ 3 ] At the outset of the trial, counsel confirmed that, consistent with the information in the Case Conference Memoranda for this proceeding, the only matters at issue were those I previously identified.

I was advised that various claims pled, including division of family property and relief relating to the former family home, had been resolved (with the exception of the distribution of the net proceeds from the sale of that home) and were withdrawn.

The ultimate Final Order will so indicate. [ 4 ] Because of the nature of the contested issues, the respondent presented her case first, followed by that of the petitioner. [ 5 ] At the commencement of the afternoon of the first day of the trial, counsel advised that a further agreement had been reached with respect to the issues relating to the corporation and to distribution of most of the net proceeds from the sale of the former family home (“house sale proceeds”). In particular, the parties agreed that:

a) The petitioner would purchase the respondent’s shares of the corporation for the sum of $35,000, in addition to a $10,000 payment relating to her portion of an outstanding shareholder’s loan, for a total payment of $45,000 to be made from his share of the house sale proceeds;

b) The respondent would retain and not have to account for the $7,150 she removed from the corporation’s bank account in 2019;

c) The respondent would not have to reimburse the petitioner for her $2,730 share of the cost of the valuation report for the corporation [1] ; and

d) The petitioner would endorse the cheque of approximately $800 for the return of a portion of the insurance premiums for the former family home, provide same to the respondent’s counsel to be used to satisfy the outstanding hydro bills for that home in the approximate amount of $483, with the balance of the funds to be provided to the respondent.

[ 6 ] I was advised that there were approximately $92,819 in house sale proceeds being held in trust by the respondent’s counsel. The parties agreed that the respondent would receive $32,870 as her share of those proceeds [2] , leaving approximately $59,949 from which the petitioner would make the $45,000 payment to purchase her shares.

There was some uncertainty as to the precise amount of the funds remaining in trust, as well as an issue relating to a possible $1,000 hold-back by the firm that handled the real estate transaction. [3] Nonetheless, it was agreed that after the payments of $32,870 and $45,000 were made to the respondent, the remaining funds, whatever the actual balance might be, would be provided to the petitioner, subject to any Order I might make with respect to those funds. [ 7 ] Counsel were granted leave to submit their arguments in writing.

Background [ 8 ] The parties met in approximately 1991 and, after dating for a period of time, commenced cohabiting with one another on September 1, 1993. They separated on July 15, 2017. [4] [ 9 ] The respondent’s young child from another relationship (born in late 1989) lived with the parties when she was growing up. [ 10 ] The respondent was in receipt of social assistance benefits for some time at the beginning of the parties’ relationship.

According to her testimony, the petitioner was taking an electrician course at Red River Community College. [ 11 ] After completing his electrician’s course, the petitioner worked at various positions, until he commenced employment at a radiator company in 2002 or 2003. [ 12 ] In December of 1996 the respondent completed a course at a career college and received a diploma as a legal assistant/secretary. Thereafter she was employed at nine different firms from September of 1997 until May of 2018, during the following periods, in the following capacities:

a) Firm #1 – a receptionist from September to December of 1997;

b) Firm #2 – a floater from March 1998 to April 1999;

c) Firm #3 – a legal assistant from February to August 2000;

d) Firm #4 – a legal assistant from August 2000 to February 2011;

e) Firm #5 – a legal assistant from April 2011 to June 2013;

f) Firm #6 – a legal assistant from July 2015 to September 2015;

g) Firm #7 – a legal assistant from September 2015 to November 2016;

h) Firm #8 – a legal assistant from September 25 to October 23, 2017; and

i) Firm #9 – a legal assistant from November 14, 2017 to May 17, 2018. [ 13 ] The respondent’s longest period of employment as a legal assistant was the ten and a half years she spent at Firm #4 until February of 2011. She then worked as a legal assistant at Firm #5 for just over two years from April 2011 until June of 2013.

It was two years before she commenced her next position as a legal assistant with Firm #6 in July of 2015. [ 14 ] The parties purchased a jointly-owned family home in 2005. [ 15 ] In approximately April of 2013 the parties purchased the radiator company that had employed the petitioner, using their interest in the family home to secure the necessary purchase financing.

They established a corporation through which the business would be operated, with each being an equal shareholder. [ 16 ] The petitioner functioned as an owner/operator for the business, and the respondent performed various tasks in the office, including bookkeeping, billing, reception duties, cleaning and filing of paperwork.

She received some bookkeeping training from an individual hired by the petitioner. [ 17 ] On her list of employment positions (acknowledged to be accurate by the petitioner), the respondent indicated she worked for the corporation as a bookkeeper and administrative assistant from April 2013 until July 28, 2017. [ 18 ] The respondent received funds from the corporation for certain years and not for others. She was paid a salary in 2014 and 2015.

In 2019 she removed the previously referred to sum of $7,150 from the corporation’s bank account and declared same as income for income tax purposes. [ 19 ] The respondent began to experience mental health difficulties in or about 2013. She ceased working at Firm #5 in June of that year. [ 20 ] The respondent attempted suicide in 2014. She began meeting with a psychiatrist, Dr.

S., who provided her with care for many years and testified at trial. [ 21 ] The respondent did not work as a legal assistant again until July of 2015, when she briefly worked at Firm #6 before working at Firm #7 from September of 2015 until November of 2016. She was in receipt of employment insurance income for part of 2017.

[ 22 ] In April of 2017 her mother (with the petitioner’s knowledge and apparent support) made an application for an involuntary mental health examination of the respondent. [ 23 ] The parties separated on July 15, 2017 and the petitioner moved out of the family home. He continued to pay the mortgage. He lived in his shop for a period of time and thereafter with relatives. [ 24 ] The respondent ceased involvement with the operation of the business shortly after the parties’ separation.

The petitioner did not take the position that she should have returned to work at the business. [ 25 ] The respondent only held two jobs in and after 2017 (both as a legal assistant). She worked at Firm #8 for a month until she was “let go” in October 2017 because she was not doing well and made various mistakes. She then worked at Firm #9 for six months until May 2018 when she was fired due to behavioural issues related to her mental illness. The respondent apparently did not receive employment insurance income in 2018.

There was no evidence whether she was eligible or ineligible for such benefits or ever applied for same. [ 26 ] Aquila J. pronounced an Interim Order on August 10, 2018, that provided, inter alia : • the petitioner pay the respondent common-law partner support of $450 per month commencing September 1, 2018; • the family home be listed for sale with the respondent allowed to “stay in the property until … sold”; and • the petitioner pay the mortgage and taxes and the respondent pay the utilities and home insurance, until the home was sold.

The petitioner’s common-law support payments to the respondent were reviewable once the home was sold and “debts and property of the parties … settled”. [ 27 ] According to the Financial Statement affirmed by the respondent on January 9, 2018 and attached to her Answer, the monthly mortgage payments were $823.33. It was unclear whether those payments included property tax. [5] [ 28 ] The Interim Order was filed as an exhibit.

It was apparently varied in some manner by an Order pronounced on December 18, 2018 (according to a Court Registry notation on the Interim Order) but that “Variation Order” was not filed as an exhibit nor was any evidence adduced respecting its terms. [ 29 ] The respondent commenced the process to apply for CPP disability benefits in 2018 but did not complete same. [ 30 ] The respondent remained in the former family home until the middle of January of 2019. She received and declared $2,304 in rental income for the property from June until its sale at the beginning of October 2019.

Since leaving the former family home the respondent has rented a bedroom in a home where she has access to the common areas and the kitchen. [ 31 ] The respondent has been in receipt of social assistance benefits since 2021 according to her income tax materials. She has qualified for such benefits on a disability basis.

The respondent has relied on the common-law support payments from the petitioner, in addition to funds she receives through social assistance, for her support since that time. [ 32 ] After the parties separated, as noted, the petitioner lived in the business’ shop for a year or so, then with various relatives.

As required by the Interim Order, he paid the mortgage and realty taxes on the family home until it was sold. [ 33 ] In late 2021 the petitioner purchased a home for $312,000, with $210,000 of mortgage financing. [ 34 ] In April of 2022 the respondent had another mental health crisis and again attempted suicide. The Law and Analysis [ 35 ] Because the parties are not married to one another, the respondent’s claim for support was made pursuant to The Family Maintenance Act , C.C.S.M. c. F20 (the “ Act ”). The following provisions of that Act are relevant to this proceeding:

Definitions 1 In this Act , . . . "common-law partner" of a person means . . . (

b) another person who, not being married to the person, cohabited with him or her in a conjugal relationship (

i) for a period of at least three years . . . . . . . .

PART I

SPOUSES AND COMMON-LAW PARTNERS Mutual support obligation 4(1) Spouses and common-law partners have the mutual obligation to contribute reasonably to each other's support and maintenance. Conduct 4(2) The obligation under subsection (1) exists without regard to the conduct of either spouse or common-law partner, and in determining whether to make an order under this Act for support and maintenance of a spouse or common-law partner, a court shall not consider the conduct of the spouses or the common-law partners in respect of the marriage or common-law relationship. . . . Onus of self-support after separation 6 Notwithstanding

section 4, a spouse or common-law partner has the obligation after separation to take all reasonable steps to become financially independent of the other spouse or common-law partner. Factors affecting order 7(1) In determining whether to make an order under this Part or

section 46, what provisions the order should contain, and, in particular, what is reasonable under sections 4, 5 and 6 for the purposes of the order, a court shall consider all the circumstances of the spouses or common-law partners, including the following: (

a) the financial needs of each; (

b) the financial means, earnings and earning capacity of each; (

c) the standard of living of the spouses or common-law partners; (

d) any obligation of either of them for the support and maintenance of a child or a person other than the other spouse or common-law partner; (

e) any contribution of a spouse or common-law partner within the meaning of subsection (2); (

f) the amount of any property settlement made between them; (

g) where one of them is financially dependent upon the other, the measures available for the dependent person to become financially independent of the other, and the length of time and cost involved in taking those measures; (

h) any impairment of the income-earning capacity and financial status of either resulting from the marriage or common-law relationship; (

i) where one of them is financially dependent upon the other, whether and to what extent the dependent spouse or common-law partner is complying with the requirements of

section 6; (

j) the duration of the marriage or common-law relationship. Domestic service as financial contribution 7(2) Any housekeeping, child care or other domestic service performed by a spouse or common-law partner for the family is a contribution to support and maintenance within the meaning of

section 4 in the same way as if the spouse or common-law partner were devoting the time spent in performing that service in gainful employment and were contributing the earnings therefrom to support and maintenance. . . . Application for order 9(1) A spouse or common-law partner, or any person on his or her behalf, may apply to a court for an order of support and maintenance where (

a) the other spouse or common-law partner is in breach of an obligation under this Part; or (

b) an order is desired to fix the amount of support and maintenance payable to the other spouse or common-law partner. . . . Order 10(1) Upon an application under this Part, a court may make an order containing any one or more of the following provisions and may make any provision in the order subject to such terms and conditions as the court deems proper:

(

a) That one spouse or common-law partner pay to the other spouse or common-law partner, or to a third person on his or her behalf, suchlump sum or periodic sums or both for support and maintenance or for clothing and other personal expenses as the court may determine. . . . [36] The parties cohabited with one another in a common-law relationship for almost 24 years. They were common-law partnerswithin the meaning of the Act. Entitlement to Common-Law Partner Support [37] Support entitlement is a threshold issue. [38] The Supreme Court of Canada in Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420, stated that there werethree bases of entitlement to spousal support: compensatory, non-compensatory and contractual. [39] The nature of compensatory and non-compensatory support entitlement were described in

Chapter 3 of the Spousal SupportAdvisory Guidelines: The Revised User’s Guide, (Department of Justice: Professor Carol Rogerson and Professor Rollie Thompson:April 2016), in the following manner: (

a) The principles of entitlement • Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during themarriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation. . . . . . • Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has alsogenerally been interpreted to cover a significant decline in standard of living from the marital standard.

Non-compensatory supportreflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance andexpectation, summed up in the phrase “merger over time”.

Common markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for theclaimant after separation, and economic hardship experienced by the claimant. . . . . . • If there is a significant income disparity, entitlement on either compensatory or non-compensatory grounds may be establisheddespite the fact that the recipient has a relatively high income and could on some understandings of the term be seen as “self-sufficient”: … [Emphasis in original] [40] The respondent argued she had support entitlement on both a compensatory and a non-compensatory basis and sought increasedretroactive and prospective support.

She sought to impute additional income to the petitioner. [41] The petitioner took the position that the respondent had no entitlement to common-law partner support, had not met herobligation under s. 6 of the Act to “take all reasonable steps to become financially independent” and that income should be imputed toher. [42] Despite the strenuous efforts of the petitioner’s counsel to establish that the respondent has no entitlement to common-lawsupport on either a compensatory or a non-compensatory basis, I am satisfied on a balance of probabilities that she has entitlement onboth bases. [43] The evidence was clear that the respondent contributed in a significant way to the acquisition of the business and establishmentof the corporation that was, and is, the source of the petitioner’s income.

She cooperated to enable the former family home to be used assecurity for the funding to purchase the business and assisted with bookkeeping, billing, filing of paperwork, reception duties andcleaning of the business from April of 2013 until late July of 2017, including in a more significant way in the years when she was notemployed elsewhere and was paid a salary by the company. [44] While, as noted, the parties agreed that the petitioner would purchase the respondent’s shares in the corporation, thatarrangement does not affect her entitlement to common-law partner support on a compensatory basis. [45] With respect to non-compensatory support, the medical evidence was clear that the respondent has suffered, and continues tosuffer, from a host of serious mental health issues, most particularly anxiety and major depression.

Those issues began in approximately2013 and worsened to the extent that she was fired from her last employment position because of her behaviour. [46] Dr. S. was the respondent’s psychiatrist for many years before his retirement in early 2021. He found her case challenging andwas clearly disappointed that she could not tolerate the medication that could have helped her conditions and that her mental healthsituation had not improved. He felt she was not a good candidate for any job. Dr.

S. obviously cared about the respondent’s well-beingand movingly indicated that his efforts must have been successful to some degree because she was still alive.

[ 47 ] Dr. O. has been the respondent’s family physician since late 2015. She testified that the respondent has significant mental health issues and has been unable to tolerate medications that might have assisted with her condition. She did not feel the respondent was capable of employment. [ 48 ] The petitioner’s position with respect to the respondent’s mental health situation was insensitive and at times offensive. The respondent was extensively cross-examined with respect to efforts she had taken to improve her mental health condition, including, as noted in her written argument, whether she:

a) took medication as prescribed (including detailed questions as to what medication she was prescribed at various times);

b) missed medical appointments;

c) ate too much sugar;

d) failed to exercise;

e) failed to meditate;

f) continued to smoke;

g) consumed alcohol;

h) used cannabis; or

i) failed to pursue various counselling options. [ 49 ] While there may have been steps that the respondent could have taken to improve her mental health conditions and potentially obtain employment, I accept the evidence of her current physician, Dr. O., that the very nature of the respondent’s mental health conditions means it is challenging for her to deal with life generally let alone take the steps that the petitioner felt should be taken. [ 50 ] It was clear that the respondent is not, and for some time has not been, a well person.

For years she has had difficulty tolerating many of the medications that might have eased her symptoms.

The fact she did not persevere with medication regimes was again due in no small part to her mental health conditions. [ 51 ] Suggestions by the petitioner that the respondent should be able to readily obtain a position as a legal assistant are unreasonable and unrealistic given her work history (including her absence from the work force since her disastrous work experience in the spring of 2018) and ongoing mental health challenges. [ 52 ] The petitioner’s argument that “the respondent has an obligation to do everything reasonable to recover from her depression and anxiety … and has not done so”, so no retroactive or ongoing support should be ordered, and counsel’s references to “learned helplessness”, were insensitive in the extreme and showed a callous disregard for the unique challenges facing individuals battling mental illness.

Quantum of Common-Law Partner Support [ 53 ] In determining that an order of common-law partner support should be made for the respondent, I have considered the relevant provisions of the Act , including the non-exhaustive list of factors respecting such a determination, as well as the provisions to be included in such an order, set out in s. 7(1) . (

a) Retroactive Common-Law Support [ 54 ] The respondent sought to have the petitioner pay significant retroactive common-law support from January 1, 2018, and to have income imputed to him relating to adding back certain corporate expenses in 2018 – 2021, as follows: 2018 2019 2020 2021 Corporation’s pre-tax profit with add-backs $35,744 $16,736 $2,838 $359 Petitioner’s Line 150 income (EX. 22) $48,077 $53,000 $50,000 $51,923 Income for support determination $83,821 $69,736 $52,838 $52,282 [ 55 ] She also argued that the same approach to certain add-backs should be taken with respect to the petitioner’s 2022 and current annual income, resulting in imputed income of $65,842, if the corporation’s pre-tax profit with add-backs for the years 2018 to 2021 are averaged. [ 56 ] The respondent sought a total of $111,438 in “lump sum retroactive common-law support” to the end of 2022, based on the high- end support amounts generated under the Spousal Support Advisory Guidelines ( SSAGs ) for the petitioner’s proposed imputed incomes and the respondent’s incomes for the years in question, less the support payments he made, calculated as follows:

a) 2018 – Based on $83,821 imputed income for the petitioner and $13,521 income for the respondent, he ought to have paid monthly support of $2,812. The petitioner paid $1,350 in support in 2018, resulting in retroactive common-law support due of $32,394; b) 2019 – Based on $69,736 imputed income for the petitioner and $13,590 income for the respondent, he ought to have paid monthly support of $2,246.

The petitioner paid $5,852 in support in 2019, resulting in retroactive common-law support due of $21,100; c) 2020 – Based on $52,838 imputed income for the petitioner and no income for the respondent, he ought to have paid monthly support of $2,114. The petitioner paid $5,400 in support in 2020, resulting in retroactive common-law support due of $19,968; d) 2021 – Based on $52,282 imputed income for the petitioner and no income for the respondent, he ought to have paid monthly support of $1,687.

The petitioner paid $5,404 in support in 2021, resulting in retroactive common-law support due of $14,840; and e) 2022 – Based on $65,842 imputed income for the petitioner and no income for the respondent, he ought to have paid monthly support of $2,378. The petitioner paid $5,400 in support in 2022, resulting in retroactive common-law support due of $23,136. [ 57 ] There are a number of issues with the respondent’s position. [ 58 ] Throughout their relationship, even when the respondent was employed by various firms, the parties’ means were comfortable, not lavish.

It was unclear on what basis the petitioner should be required to pay support to the respondent at the highest level of the SSAGs or pay the proposed amount of increased retroactive support. [ 59 ] The petitioner’s income arises from the services he provides through the corporation. The respondent seeks to have income imputed to him relating to certain amounts that were claimed as expenses by the corporation in 2018 - 2021.

Both parties were equal shareholders of the corporation until the petitioner purchased the respondent’s shares in December 2022 for the amount agreed to by the parties, an amount that should have taken, and presumably did take, into account the value of the corporation, including any retained earnings and any claimed expenses.

Essentially the respondent’s position would require the Court to look behind the parties’ agreement respecting the value of the corporation (and therefore its shares) and retroactively alter corporate income and expense determinations and impute income to the petitioner beyond that he declared on his income tax returns. I do not believe it would be reasonable or appropriate to do so given the agreement reached respecting the purchase of the respondent’s shares. [ 60 ] I also note that the parties had retained an individual to value the corporation.

Counsel provided me with the valuation report to read prior to the commencement of trial, and I did so, but given the issues relating to the corporation were resolved by consent, and the report’s maker was not called as a witness nor was the report tendered as an exhibit (save and except for one redacted page showing the corporation’s 2016 income and expenses), I have not taken same into consideration.

Presumably the parties took the opinions in that report into account in reaching their agreement respecting the corporate issues and the amount to be paid by the petitioner for the respondent’s shares. [ 61 ] I am not satisfied that it would be appropriate in the circumstances to impute any additional income to the petitioner for the years 2018 to 2022. [ 62 ] The petitioner’s declared annual incomes and those of the respondent (excluding social assistance and common-law partner support) are relevant, however, with respect to determination of any retroactive increase in common-law partner support payments. [ 63 ] The respondent and the petitioner declared Line 150 incomes of $48,077 and $13,521, respectively, in 2018.

The respondent’s income related to her employment with Firm #9 that ended May 17, 2018. The petitioner lived in the business’ shop or with relatives and paid the mortgage on the family home occupied by the respondent. [ 64 ] Pursuant to the August 10, 2018 Interim Order, the respondent had sole occupancy of the family home and the petitioner was required to make the monthly $823 mortgage and the realty tax payments on the property.

Those circumstances were clearly taken into account when the respondent was ordered to pay monthly common-law partner support of $450 to the respondent, commencing that September, as the Order contemplated a review once, inter alia , the family home was sold. [ 65 ] Given the parties’ income and other situations, the petitioner’s obligation to pay the mortgage and taxes for the former family home, and considering the ranges of support generated by the SSAGs , the amount of common-law partner support payable in 2018 was not unreasonable, and no retroactive increase is ordered. [ 66 ] The petitioner declared Line 150 income of $53,000 in 2019.

The respondent declared rental income, RRSP income and income received from the corporation, in the amount of $13,590 (in addition to $5,852 in common-law support). [ 67 ] The petitioner’s obligations respecting the mortgage and realty tax payments for the family home continued until it was sold effective the beginning of October of 2019.

Again, taking into account each party’s income and other circumstances, including the petitioner’s payment obligations respecting the former family home, and considering the ranges of support generated by the SSAGs , I am not prepared to make any retroactive support adjustment for the first nine months of 2019. [ 68 ] It was not until October of 2019, when the former family home was sold and the mortgage and realty tax payment obligation of the petitioner ended, that an issue truly arose with respect to the adequacy of his support payments pursuant to the Interim Order.

He clearly underpaid common-law partner support from that time. [ 69 ] The petitioner declared Line 150 income of $50,000 in 2020 and $51,923 in 2021, and anticipated receiving income of $50,000 to $53,000 in 2022 (comparable to his past declared annual income). The respondent’s only 2020 declared income was $5,400 in common- law partner support. In 2021 she declared common-law partner support and social assistance benefits, and testified that she had the same sources of income in 2022. The respondent’s social assistance benefits were reduced by the amount of her support payments from the petitioner.

[ 70 ] In December of 2022 the petitioner made the $45,000 payment to the respondent to purchase her shares in the corporation.

No evidence was adduced with respect to the amount of related capital gains (if any) that the respondent would need to declare on her 2022 income tax return, or the potential tax consequences thereof. [ 71 ] The respondent argued that the petitioner’s 2022 and future income should be imputed at $65,842, and that ongoing support be set at $2,634 per month, the high end of the SSAGs . [ 72 ] The petitioner did not take a position respecting imputation or determination of his past income, reiterating the respondent had no common-law support entitlement. [ 73 ] As noted, the petitioner testified that he anticipated his 2022 income would be between $50,000 and $53,000, consistent with his past declared income.

The respondent argued that an additional amount consistent with the average of the corporation’s 2018 to 2021 pre-tax profit with add-backs should be added to the petitioner’s anticipated 2022 and future income, for imputed annual income of $65,842. [ 74 ] Even if some additional amount of imputed income should be added to the petitioner’s income for support purposes, the amount proposed was excessive, being based in part on certain extraordinary amounts for 2018 ($35,744) and 2019 ($16,736).

The amounts for 2020 and 2021 were far more modest ($2,838 and $359, respectively), even by the respondent’s calculations. [ 75 ] I find it reasonable to determine the petitioner’s 2022 and prospective annual income to be $53,000. [ 76 ] In determining the amount of retroactive common-law partner support to be paid by the petitioner to the respondent, I have taken into consideration the factors set out in s. 7(1) of the Act , including the parties’ incomes, expenses, resolution of corporate issues, distribution of the proceeds of the sale of the family home, assets and debts (to the extent I was provided with evidence of same) and other circumstances, including the importance of maintaining work incentives for the petitioner. [ 77 ] I have also taken into account the fact that the respondent qualified for social assistance benefits based on disability, was provided with a disability tax credit form by one of her doctors and her psychiatrist and family physician doctor testified that the respondent is unable to work for medical reasons.

Why the respondent did not pursue the possibility of CPP disability benefits was unclear, but that may be an option for her to pursue now, if she has not already commenced that process. [ 78 ] I have also taken into account the ranges of support generated by the SSAGs and am mindful of the comments made by the Manitoba Court of Appeal with respect to same, including the following. [ 79 ] In Scott v. Scott , 2011 MBCA 21 , 262 Man.R. (2d) 237 (Man.

C.A.) , Michel Monnin J.A. stated (at para. 11): Although it might be useful, in certain cases, to refer to the SSAG, one must not forget that they are not legislated guidelines, they are not binding on courts and, as of yet, they have not replaced the inherent discretion of a judge to determine what he or she considers an appropriate quantum to be awarded. [ 80 ] The SSAGs are a useful tool or a “litmus test” ( see Kynoch v. Kynoch , 2013 MBCA 73 ). [ 81 ] In considering the SSAGs , not only the support amounts and durations generated by the formulae should be taken into account.

The entirety of the SSAGs should be considered, including exceptions, such as the importance of maintaining a work incentive for the payor.

The support amounts proposed by the respondent (based on imputed income to the petitioner) would leave the parties with comparable monthly cash projections, and, if the amount of retroactive support proposed had been ordered, leave the petitioner with a significantly lower monthly cash projection. [ 82 ] Given the evidence before me, I order that the petitioner pay common-law partner support to the respondent in the amount of $900 per month for each of the months of October 2019 through to the end of December 2022. [ 83 ] I am assuming that the parties will take the necessary steps to minimize the tax consequences of these payments to the respondent, and maximize the tax benefits to the petitioner. [ 84 ] The remaining proceeds from the sale of the former family home that would have been payable to the petitioner are to be paid to the respondent forthwith to satisfy, to the extent of those funds, a portion of the petitioner’s increased retroactive support obligation ordered herein. (

b) Ongoing Common-Law Partner Support [ 85 ] Again, taking into account the same factors that I took into account with respect to the retroactive support obligation of the petitioner to the end of 2022, I order the petitioner pay common-law partner support to the respondent in the amount of $1,100 per month on the first day of each month commencing on the first day of January 2023.

Further Order [ 86 ] Any amount of retroactive common-law partner support pursuant to this Order, remaining after the payment to the respondent of the remaining proceeds from the sale of the former family home that would have been payable to the petitioner, are to be paid by the petitioner to the respondent at the rate of $200 per month on the first day of each and every month commencing August 1, 2023, until paid in full.

[ 87 ] The Final Order submitted by counsel must address all claims in this proceeding, whether by reflecting the terms of this decision, the agreements reached by the parties or withdrawing certain claims. Costs [ 88 ] Costs may be spoken to if the parties are unable to agree. _________________________ MacPhail J.