Aquila v Aquila, 2016 MBCA 33

Citation: Aquila v Aquila, 2016 MBCA 33 Date: 20160318 Docket: AF15-30-08420 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : ) T. A. Gutkin and MARY ANNE BATTAGLIA AQUILA ) J. A. Schofield ) for the Appellant (Petitioner) Appellant ) ) V. E. Bargen and ) C. M.

Purves - and - ) for the Respondent ) ) Appeal heard: FRANCESCO AQUILA ) November 25, 2015 ) (Respondent) Respondent ) Judgment delivered: ) March 18, 2016 On appeal from 2015 MBQB 97 , 318 ManR (2d) 128 MAINELLA JA Introduction [ 1 ] Divorce proceedings following the parties’ 17-year traditional marriage have been acrimonious and highly litigious.

This appeal concerns an order under the Divorce Act , RSC 1985, c 3 (2nd Supp) (the Act ), made in a spousal support review that revised the basis of entitlement, as well as the duration and amount, and which further terminated child support for the parties’ adult son. [ 2 ] The motion judge had dealt with the case for many years and was well-positioned to address its factual and legal subtleties. I am satisfied that the order he made is a reasonable outcome arrived at without reversible error. For the following reasons, I would dismiss the appeal subject to one amendment to the order appealed from.

Background [ 3 ] The petitioner is the second of three wives of the respondent. The parties married on May 30, 1987, when the petitioner was 27 years old and the respondent was 35 years old. They were 44 and 52 when they separated on July 1, 2004, and are presently 56 and 64 years old. They have two adult children, a daughter, A., age 27, and a son, P., age 23. Both A. and P. reside with the petitioner. Neither party is currently cohabitating with a new partner. [ 4 ] By agreement, only the respondent worked full time during the marriage.

The respondent completed his law degree and was called to the bar while he was married to his first wife. The petitioner has a high school education and one year of university. During the marriage, the parties agreed that the petitioner would give up working as a clerk in a retail clothing store and stay home to care for the children while the respondent pursued his legal career. In 1994, the respondent was appointed a judge of the Provincial Court of Manitoba.

In 2000, he was appointed a judge of the Court of Queen’s Bench (Family Division). [ 5 ] Interim child and spousal support was paid by the respondent to the petitioner after the separation. The parties were granted a divorce with corollary relief on October 5, 2007. The consent order required the respondent to pay child support to the petitioner for A. and P. in the table amount under the Federal Child Support Guidelines , SOR/97-175, of $3,033 per month and spousal support of $4,200 per month.

The amount and continuing entitlement to spousal support was subject to review, without the necessity of proving a material change in circumstances, on or after October 30, 2010.

[ 6 ] As part of the divorce, there was also an equal division of the family property whereby the petitioner made an equalization payment to the respondent of $134,624. The respondent’s judicial annuity benefits under the Judges Act , RSC 1985, c J-1, were also divided for the four years of cohabitation while the respondent was a judge of the Court of Queen’s Bench (Family Division). The petitioner chose to receive an immediate lump sum transfer as opposed to waiting until the petitioner retired and then receive a share of his judicial annuity (see

section 52.14 of the Judges Act ). She received $90,781.59 from the Federal Government and invested the monies for her retirement. [ 7 ] Both parties have health issues. The petitioner is clinically depressed and takes medication for fibromyalgia and insomnia. In 2013, she was diagnosed to be in the “early stages of osteoarthritic degeneration of her left knee” and has received treatment for same.

The respondent had hip surgery in 2002 and will require more hip surgery shortly. [ 8 ] In 2011, the motion judge took over conduct of the parties’ divorce proceedings and made his first order under the Act in relation to the parties ( 2011 MBQB 245 , 272 ManR (2d) 1).

Relevant to this appeal are his decisions relating to child support and spousal support. [ 9 ] The motion judge refused the respondent’s request to terminate child support in relation to A. on the basis that she was no longer a “child of the marriage” ( 2011 MBQB 245 at para 16 ) for the purposes of section 2(1) of the Act , because A. was 23 years old, had completed her undergraduate degree and had been accepted by a law school in England.

The motion judge concluded that had the marriage stayed intact, the parties would have provided A. with full financial support for her first university degree and some additional financial support for further studies thereafter. The motion judge fixed child support in relation to A. in the table amount until June 1, 2013, or A. withdrawing from law school. The motion judge also set child support in relation to P.

Paragraph 5.5.4 of his October 14, 2011 order (2011 order), was as follows: Upon the termination of [the respondent’s] obligation to pay child support for [A.], commencing on the date of such termination, [the respondent] shall pay [the petitioner] support for [P.] alone in the amount that accords with the Manitoba table of the Child Support Guidelines for his income calculated pursuant to paragraphs 4.8 and 4.9 of the [2007 consent order], payable on the first day of each month thereafter, until further Order of the Court . [emphasis added] [ 10 ] In terms of his review of spousal support, the motion judge concluded that, although the petitioner had various physical and psychological challenges since the separation, she had not “made reasonable or adequate efforts to promote her own economic self- sufficiency” ( 2011 MBQB 245 at para 86 ).

However, in the result, the motion judge concluded that the petitioner continued to suffer economic disadvantage as a result of the marriage and economic hardship due to the marriage breakdown. He decided that the petitioner was entitled to spousal support on both a compensatory and non-compensatory basis. [ 11 ] The Spousal Support Advisory Guidelines (the SSAG), with child support formula suggested a range of support of between approximately $5,500 to $6,800 per month. The motion judge set spousal support at $5,000 per month.

He also ordered that the amount and continuing entitlement to spousal support was subject to review, without the necessity of proving a material change in circumstances, on or after October 31, 2013. The petitioner was directed to undertake career counselling and make efforts to enhance her credentials, and to provide the Court with all information regarding such efforts as part of any future spousal support review. Neither party appealed the motion judge’s 2011 order. [ 12 ] In 2014, the respondent moved to review spousal support requesting that it be terminated or decreased.

He did not move to terminate his child support obligation in relation to P. In her cross-motion, the petitioner asked for a review of spousal support with a view to increasing it and additionally asked that the quantum of child support for P. be fixed as of June 1, 2013. [ 13 ] Counsel for the petitioner informed this Court that he was caught off guard by the respondent’s position at the motion that child support in relation to P. should end.

He advised that he did not request an adjournment to file further evidence and was able to address the issue before the motion judge. [ 14 ] On June 8, 2015, the motion judge made his second order in relation to the parties’ respective motions which is the subject of this appeal. [ 15 ] The motion judge terminated child support in the table amount of $2,059 per month, effective June 1, 2015, in relation to P. because, in his view, P. was no longer a “child of the marriage” for the purposes of the Act . The motion judge applied similar reasoning to P. as he had previously applied in relation to A.

By the time of the second order, P. had essentially completed the requirements of his undergraduate degree. Although P. had expressed an interest in going on to law school, unlike A.’s situation in 2011, P. had not applied for law school or any other post-graduate studies. Also, there was no evidence of continuing dependency of P. after the end of the 2014-15 university year.

The motion judge made termination of child support in relation to P. subject to the proviso that if P. later was accepted in a post-graduate program, a further application for child support could be made by the petitioner with evidence as to P.’s income from 2011 onward.

Finally, the sum of $6,609.18 was ordered in retroactive child support due to failure to take into account the respondent’s Canada Pension Plan (CPP) benefits for the purposes of calculating the table amount of child support in relation to P. [ 16 ] The motion judge addressed the lack of request by the respondent to terminate child support in his notice of motion this way (at paras 10-11):

The petitioner says that the issue of termination is not properly before the court as it was not raised in the respondent’s notice of motion. I disagree. I am satisfied that both issues, quantum and duration, are inter-connected and should be dealt with now.

While it is technically correct that the respondent did not raise the issue of termination in his notice of motion, both parties provided extensive affidavit evidence explaining why ongoing child support was/was not warranted, and the issues of quantum and termination were fully addressed in their written submissions. [ 17 ] At the hearing of the appeal, the petitioner abandoned the position that she was denied procedural fairness because the only motion before the Court relating to child support came from her in what she said was an “enforcement motion.” [ 18 ] The child support issue on this appeal is whether the motion judge should have ordered child support in relation to P. for a grace period as opposed to terminating it immediately on completion of his undergraduate degree.

The petitioner asks this Court to order a one-year grace period of child support in the table amount in relation to P. after completion of his undergraduate degree. [ 19 ] For the purposes of the spousal support review, the financial circumstances of the parties, as found by the motion judge, were as follows. The petitioner’s yearly employment income was $36,000 as the executive director of an affordable housing project. Her approximate net monthly expenses were $6,380. Her net assets, consisting of RRSPs ($160,461) and equity in the matrimonial home ($457,371.92) totalled $617,832.92.

The evidence before the motion judge as to the value of the matrimonial home consisted of an affidavit filed by the petitioner in the 2011 spousal support review that showed an assessed value of the home for property taxes of $531,000 as of April 1, 2010, and a concession by counsel for the petitioner that it would not be “unreasonable” to attribute a value of $500,000 to the home (at para 51). The respondent’s 2013 yearly employment income and CPP benefits was $301,945.11. His net monthly expenses were $11,540.

His net assets were negative $112,408.73 (exclusive of his judicial annuity benefits and a family law obligation of $35,000 owed to his third wife as part of an equalization payment under a separation agreement). [ 20 ] At the hearing of the appeal, counsel for the petitioner advised that there had recently been an unspecified “negative turn of events” with respect to the employment of the petitioner. A motion to admit fresh evidence as to this development was not made.

The parties agreed that the Court should decide the appeal based on the record that was before the motion judge. [ 21 ] The motion judge found that the petitioner had not been diligent in making efforts towards economic self-sufficiency since his first order in 2011. He found that she “made little or no effort to obtain career counselling and no effort to enhance her credentials” (at para 65).

He further concluded that she had made almost no effort to find a different job and continued to work in an unsuitable job in a funeral business, when her health allowed, until 2014 when she began her position with the affordable housing project. [ 22 ] After review of the circumstances of the parties in light of the factors and objectives in sections 15.2(4) and 15.2(6) of the Act , the motion judge decided that receipt of spousal support for nearly 11 years “fully satisfied” the compensatory aspect to spousal support for the petitioner (at para 74). [ 23 ] However, the motion judge also determined that the petitioner’s entitlement to spousal support on a non-compensatory basis should continue, but only for a definite period.

He stated that the SSAG range on the without child support formula was “$5,653.00 to $7,537.00, with a midpoint of $6,595.00” (at para 72). He decided to depart from that range because it included an allowance for compensatory support, which, in his view, had been “fully met” (at para 75). [ 24 ] The motion judge determined that spousal support of $4,000 per month effective June 1, 2015, to be payable until September 8, 2019, “would best achieve justice in this case” (at para 75).

In his view, the effect of his spousal support order would be that the petitioner would receive $84,000 per year based on her earnings and spousal support until age 60 and that would be “sufficient to cover her monthly expenses and will permit a reasonable standard of living” ( ibid ). The motion judge summarized his reasoning this way (at para 78): The parties were married for 17 years, and the respondent has paid spousal support since 2004. For a marriage of that duration, the SSAG provide a suggested minimum duration for spousal support of 8.5 years and a suggested maximum duration of 17 years.

In my view, the petitioner bears some responsibility for her continuing need for spousal support , and the circumstances of this case do not justify the continuation of such support for 17 or more years. [ 25 ] The first of the two issues on this appeal relating to spousal support is whether the motion judge erred in concluding that the compensatory aspect of spousal support was “fully satisfied” (at para 74) after the petitioner had received nearly 11 years of spousal support (2004-2015).

The other spousal support issue is whether the motion judge erred in ordering that the continuing spousal support on a non-compensatory basis, in a reduced amount, should be for a definite term. Discussion Standard of Review

[26] The threshold for appellate intervention with a child or spousal support order is significant. Such orders cannot bedisturbed “unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearlywrong” (Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11). Child Support [27] Inadequate pleadings are not just “the bane of a judge’s life” but they can also occasion an injustice (Ireland v DavidLloyd Leisure Ltd, [2013] EWCA Civ 665 at para 30 (BAILII)).

The termination of child support in relation to P., despite the inadequatepleadings of the respondent, was irregular. Contrary to r 70.31(3) of the Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88,relief was granted to the respondent that was not requested in his notice of motion. Normally that should not occur (Gregorchuk vGregorchuk, 2006 MBCA 13 at para 2). The reason is two-fold. The exercise of jurisdiction a court possesses may be subject to “rulesand machinery for exercising that jurisdiction” (CNR v Lewis, (CA EXC), [1930] 4 DLR 537 at 541 (Ex CR)). In thiscase, r 70.31(3).

Also, a court has a duty to ensure procedural fairness. Granting relief not sought by a pleading may contravene theprinciple of natural justice that a party has the right to adequate notice and opportunity to be heard (audi alteram partem). [28] The oddity of what occurred here does not end with the respondent being granted relief he did not formally seek.

Although her motion was styled as a “motion to vary”, the petitioner strenuously denied in her submissions that her child support motionwas pursuant to section 17(1) of the Act which would have triggered the motion judge’s broad powers to vary, rescind and suspend achild support order “prospectively or retroactively”. This procedural imbroglio does not end on that note. Although counsel for thepetitioner called the motion one of “enforcement”, there was no failure by the respondent to pay child support in relation to P., albeit therespondent’s CPP benefits were not included in the calculation of the table amount.

That said, I cannot fault the petitioner’s attempt toclarify the situation because, despite the clear wording of para 5.5.4 of the motion judge’s 2011 order, the respondent deposed in hisaffidavit of July 4, 2014, to the effect that he had no legal obligation to pay child support in relation to P., but was only doing sovoluntarily. [29] It is readily apparent from the motion judge’s reasons that he looked at all of this confusion and resolved the situationfairly, mindful of the principle of proportionality, which has now been codified for family law proceedings in r 70.02.1 and which judgesare obligated to take into account in all of their decision-making on questions of civil justice in the modern era (Hryniak v Mauldin, 2014SCC 7 at para 28, [2014] 1 SCR 87).

I also take note of the fact that the petitioner was represented by experienced counsel who wasfully capable of addressing the respondent’s evolving position.

The petitioner’s failure to request an adjournment of the motion to filefurther evidence, or demand proper amendment of the respondent’s pleading, to address any prejudice satisfies me that there was not adenial of procedural fairness here (Cassidy v McNeil, 2010 ONCA 218 at para 42, 266 OAC 62). [30] Procedural irregularities aside, I have not been convinced that the motion judge’s decision to immediately terminatechild support in relation to P. without a grace period was arrived at by a reversible error, or is clearly wrong. [31] Child support for an adult child due to a dependency for pursuit of post-secondary education is meant to be transitionalonly (Julien D.

Payne & Marilyn A. Payne, Canadian Family Law, 5th ed (Toronto: Irwin Law, 2013) at 367). There is no presumptionin favour of child support for a brief grace period while the adult child enters the workforce, or is between studies, after some form ofpost-secondary education.

The relevant circumstances will dictate whether a limited extension of child support is warranted and the onusis on the claimant to establish dependency. [32] Here, the circumstances are that child support has been paid by the respondent in relation to P. for over five years afterhe reached the age of majority while P. pursued a post-secondary education in keeping with the parties’ expectations regarding educationfor their children, the abilities of P. and the means of the parties. The evidence before the motion judge as to P.’s current finances andfuture career plans was vague.

Moreover, the proviso in the 2011 order allowing for revisiting child support for P. if he pursues graduatestudies ensures that he is treated in the same fashion as was his sister and correctly recognizes that in appropriate circumstances a “childof the marriage” for the purposes of the Act can change back and forth (Horvath v Horvath, 2000 MBCA 93 at para 3, 150 ManR (2d)299).

I see no basis to interfere with the motion judge’s decision to terminate child support in relation to P. as of June 1, 2015. [33] On February 17, 2016, while the appeal was under reserve, counsel for the petitioner requested, pursuant to r 39.1 of theManitoba, Court of Appeal Rules, Man Reg 555/88 R, to file a motion for fresh evidence relating to an appropriate grace period for childsupport for P.

The panel reviewed the materials filed by the petitioner, and the respondent in opposition, and directed the registrar toinform the parties that the request for leave to file post-hearing materials was denied with reasons to follow, which are the following. [34] As previously explained, the petitioner could have requested to adjourn the hearing before the motion judge to fileevidence from P. regarding a grace period, but chose not to do so. The petitioner could have filed a motion for fresh evidence from P. atthe hearing of the appeal on the same issue, but chose not to do so.

The letter from counsel for the petitioner on the r 39.1 request saysthat the fresh evidence is in the form of an affidavit from P. that was only sworn on February 3, 2016 (over two months after the appealwas heard). There is no basis on the material filed to conclude that the proposed fresh evidence has a reasonable possibility of meetingthe criteria enunciated in Palmer et al v The Queen, (SCC), [1980] 1 SCR 759 at 775, and accordingly, for that reason,the r 39.1 request was denied.

Spousal Support Introduction [35] The circumstances of the marriage here are such that there was clearly an “economic merger of their interests” towarrant generous spousal support to the petitioner (Cassidy at para 69).

The more difficult question is whether there is justification tointerfere with the spousal support order in light of the standard of review discussed by the Supreme Court of Canada in Hickey. [36] The challenge in this case is not uncommon for a medium-term marriage (more than 5 years, but less than 20 years incases where the “rule of 65” does not apply (see the SSAG at 7.5.3)) in the SSAG era (see James G. McLeod & Alfred A. Mamo, 2014Ann Rev Fam L 3, and the SSAG at 7.5.6). The effect of the decisions in Moge v Moge, (SCC), [1992] 3 SCR 813; and

Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, is that, after many years of jurisprudence applying those twodecisions, there is a degree of clarity as to the rules of the road for entitlement to spousal support for short-term marriages (under 5 years)or long-term marriages (more than 20 years or where the “rule of 65” applies (which is not the case here)). The same degree of claritydoes not exist for medium-term marriages. Despite the SSAG, the case law is replete with differing outcomes on similar facts. [37] Inconsistency of spousal support outcomes is a fact of life in family law.

Parliament has structured sections 15.2(4) and15.2(6) of the Act such that spousal support awards turn primarily on how the trial judge exercises his or her discretion under the Act inthe given circumstances to achieve a just result (Miglin v Miglin, 2003 SCC 24 at para 39, [2003] 1 SCR 303; and Bracklow at para 36). On a theoretical level, one is left to conclude that spousal support outcomes are more art than science, due to the heavy reliance on theprudent exercise of judicial discretion to reconcile the interplay of the conflicting legal principles in the Act in the particular facts.

Accordingly, for the purposes of appellate review, absent a reversible error, significant tolerance for differences in possible outcomes inspousal support cases is required. [38] Three elementary principles discussed in Moge and Bracklow frame the review of the motion judge’s spousal supportdecision. First, there are three conceptual bases to spousal support: compensatory, contractual and non-compensatory (see Bracklow atpara 49). Entitlement to spousal support, as is the case here, is often based on both a compensatory and non-compensatory basis.

Second, the overarching question at the heart of entitlement to spousal support on a compensatory basis is equitable sharing of theeconomic consequences of marriage and its breakdown (see Moge at p 864). However, one spouse’s legitimate needs alone may beenough to establish entitlement to spousal support on a non-compensatory basis (see Bracklow at para 43). Amongst other things,marriage is an economic union that creates interdependency.

Accordingly, while marriage does not create an obligation to pay spousalsupport per se, such an obligation for spousal support may arise from the marriage relationship (see Bracklow at paras 44-49). Third,there are no “magical cut-off dates” for spousal support (Bracklow at para 57). Like marriages, no two spousal support awards are alike. [39] The

interpretation given to sections 15.2(4) and 15.2(6) of the Act in Moge and Bracklow recognizes that, absent thesituation where one spouse is irreparably economically disadvantaged by the marriage or its breakdown, or there is a legitimate need forcontinuing support that justice requires be addressed by a spouse with the means to do so, the basis for entitlement for spousal supportcan evolve and, ultimately, spousal support may end after a reasonable time even in a marriage of the length and financialinterdependence of the parties here.

Alleged Errors of the Motion Judge [40] The petitioner says for several reasons that the motion judge erred in concluding that compensatory spousal supportshould end in 2015. [41] To begin, the petitioner submits that the motion judge’s reasons are unclear as to why compensatory spousal supportwas “fully satisfied” by 2015. She argues that his decision is arbitrary and he did not give proper consideration to the factors andobjectives set out in sections 15.2(4) and 15.2(6) of the Act.

The petitioner says that the motion judge’s reasoning is inconsistent with his2011 decision where he decided that spousal support on a compensatory basis was justified. She suggests that other than the passage oftime, and a degree of economic self-sufficiency being achieved in 2014, nothing else changed that should affect the basis to herentitlement for spousal support. The petitioner submits that while the motion judge did a qualitative assessment of the relevant legalprinciples and circumstances in 2011 (although she does not agree with his comments about her self-sufficiency), he did not do so in2015.

The petitioner also points to alleged errors in the motion judge’s calculations of the means and needs of the parties and theimplications of his order to her standard of living. She further says that the permanent gross income disparity between herself and therespondent, and the resulting impact on their respective standards of living, entitles her to indefinite spousal support. Finally, thepetitioner argues that the motion judge overemphasized the objective of her economic self-sufficiency (section 15.2(6)(

d) of the Act) incoming to his decision. [42] The petitioner also says that the order of a definite period of spousal support from 2015 to 2019 on a non-compensatorybasis only, was unjustified and was based on material errors in his assessment of the means and needs of the parties that will result in hersurviving at a subsistence level after spousal support ends while the respondent enjoys his generous judicial salary and/or annuity. Finally, the petitioner submits that the motion judge’s use of the SSAG was inconsistent. He used the SSAG as to duration, but notamount.

Analysis and Decision [43] Determination of spousal support is a complex and difficult analysis with long-lasting implications to the parties, theirchildren, extended family and society generally given that divorce often has a significant and negative impact on the living standards ofwomen (Moge at pp 853-57, 870-71). [44] As previously mentioned, a further complication for appellate courts is that a proper consideration of the factors andobjectives set out in sections 15.2(4) and 15.2(6) of the Act, in light of the relevant circumstances of each spouse, often can lead to morethan one reasonable outcome.

As Newbury JA explained in Spencer v Spencer, 2002 BCCA 265, 169 BCAC 215, “each marriage ineach case is different and different judges might well reach different conclusions as to the best way to achieve justice in a particularcase” (at para 11).

However, an appellate court does not have an independent discretion, it cannot intervene “simply because it wouldhave made a different decision or balanced the factors differently” (Hickey at para 12). [45] The motion judge squarely addressed, with clear findings, the threshold question: what was the basis of the petitioner’sentitlement to spousal support in light of the relevant factors and objectives set out in sections 15.2(4) and 15.2(6) of the Act?

Themotion judge’s reasons for ending spousal support on a compensatory basis after nearly 11 years, and all spousal support after 15 years,cannot be said to be “conclusory” or based on a failure to take into consideration the relevant factors and objectives set out in the Act(Gray v Gray, 2014 ONCA 659 at para 41, 325 OAC 117). [46] I disagree with the petitioner’s submission that the decision to end spousal support on a compensatory basis in 2015 wasarbitrary and that one cannot understand from the motion judge’s reasons why the basis to compensatory spousal support had been “fully

satisfied.” The petitioner’s submission that the best one can make of the motion judge’s reasons is that he decided to end spousal supportbased on the irrelevant consideration that divorce proceedings had been “lengthy and protracted” (at para 76) is unpersuasive.

In myview, when the motion judge’s reasons, in particular paras 65-80 of his 2015 decision, are read in context, those reasons are more thanadequate for me to understand, and review, his conclusion as to why the compensatory basis to spousal support had been “fully satisfied”by 2015 in light of the factors and objectives set out in sections 15.2(4) and 15.2(6) of the Act. [47] I would begin by pointing out that the motion judge is presumed to know the law and his reasons demonstrate he wasalive to the relevant legal principles to consider and weigh given the parties’ circumstances.

He also had the benefit of submissions fromexperienced counsel on a lengthy record which he summarized in his two decisions. In short, in reviewing his decision, I am mindfulthat he was not required “to set out every finding or conclusion” in his reasoning (R v REM, 2008 SCC 51 at para 18, [2008] 3 SCR 3). [48] The motion judge specifically mentioned four points in paras 65-80 of his 2015 decision that explain why hedetermined that entitlement to spousal support on a compensatory basis was no longer required after nearly 11 years.

The first is theamount and duration of spousal support paid since separation (see paras 78, 80). He also concluded that the petitioner taking 10 years tofind suitable employment was not reasonable in the circumstances (see paras 65-67, 75). He further noted that the petitioner hadsignificant assets after separation (see para 70).

Finally, he made an assessment of both parties’ means and needs with reference to theirstandards of living post-separation as compared to their marital standard of living (see paras 70, 75). [49] The motion judge’s reasons demonstrate that on both reviews of spousal support he made the required qualitativeassessment as to equitable sharing of the economic consequences of the marriage and its breakdown as well as the means and needs ofthe parties.

I am satisfied that he did not fetter his discretion by simply picking numbers as to the amount and duration of spousalsupport, based on cursory reference to the SSAG, and uncritically arrive at an outcome (Frank v Linn, 2014 SKCA 87 at para 85, 442SaskR 126; and Sawatzky v Sawatzky, 2008 ABCA 355 at para 18, 440 AR 267). [50] The place to start a review of the motion judge’s spousal support decision is with his conclusion that the basis tocompensatory spousal support had been “fully satisfied” after nearly 11 years of spousal support payments. [51] Here, there has been and will continue to be a gross disparity in the incomes of the parties.

That fact, however, is notsynonymous with an entitlement to spousal support (Kloos v Kloos (1996), (MB CA), 110 ManR (2d) 129 at paras 13-14 (CA); and Fisher v Fisher, 2009 ABQB 85, 456 AR 363).

More germane are the questions, why is there an income disparity and didthe motion judge err in his identification of the basis for spousal support and the consequences of that assessment? [52] The disparity of incomes here are indicative of the petitioner suffering economic disadvantage arising from themarriage and its breakdown while, in contrast, the respondent gained an economic advantage from the marriage that has not beenaffected by the marriage breakdown.

While the respondent was already a practising lawyer when he married the petitioner, and thusalready possessed certain skills or credentials unrelated to the marriage, to me it is unquestionable that the marriage fostered his legalcareer to become a judge. Also relevant is the fact that the petitioner suffered economically from the parties’ collective decision that thepetitioner would primarily be responsible to raise A. and P.

While the petitioner did not give up a well-paying career or furthereducation to take on the roles of the primary homemaker and caregiver to A. and P., the 17-year marriage and the consequences of itsbreakdown left her out of the workforce for many years, older, with few marketable skills meaning that, realistically, she is unlikely to beable to attain any sort of higher paying employment (see Moge at pp 844-45, 862-64, 867-68, 882; and Leskun v Leskun, 2006 SCC 25 atpara 24, [2006] 1 SCR 920). [53] Both parties accept, and rely on, to a degree, the logic and reasoning of the motion judge in his 2011 decision.

I wouldsummarize his reasoning in a nutshell this way. In all of the circumstances, 7 years of spousal support after this 17-year traditionalmarriage was insufficient such that it could be said that there had been an equitable sharing of the economic consequences of themarriage and its breakdown (see Moge at pp 864-66).

Also, spousal support should not end after only 7 years in this case because, if thatoccurred, the petitioner would suffer economic hardship because of the breakdown of the marriage. [54] By 2015, the objective facts before the motion judge on the second review were that the petitioner had received almost11 years of spousal support that until 2007 was in an amount arrived at by an interim order, by consent in 2007 and after 2011 was anamount about 10 percent below the bottom of the range suggested by the SSAG using the basic with child support formula.

Also, in2014, the petitioner obtained full-time employment in a suitable job. [55] The cases relied on by the petitioner in favour of an indefinite order of spousal support must be read carefully. Spousalsupport cases are often only snap shots in time of the state of a particular couple’s divorce proceeding with little application generally.

Iam mindful of the comments of Steel JA in Cadigan v Cadigan, 2007 MBCA 28, 212 Man R (2d) 291, about what an indefinite spousalsupport award means given the Act’s provision for variation, namely that “indefinite does not mean infinite or permanent” (at para 9). [56] None of the petitioner’s authorities are truly analogous to this case. Several of the cases have little similarity becauseone spouse had a disability that prevented them from working (Hickey v Princ, 2015 ONSC 5596 at para 19, 340 OAC 136); Knapp vKnapp, 2014 ONSC 1631 at para 15 (QL); and Schaldach v Schaldach, 2015 ONSC 1574 at para 38 (QL)).

Other cases cited by thepetitioner involve indefinite orders of spousal support for marriages or cohabitations of between 16-24 years where the attempt toterminate spousal support was made after only 5-6 years of spousal support being paid (Allaire v Allaire (2003), (ONCA), 170 OAC 72; Morigeau v Moorey, 2015 BCCA 160, 370 BCAC 259; Tedham v Tedham, 2005 BCCA 502, 2005 BCCA 553, 217BCAC 250; Walsh v Walsh, 2015 ABQB 652 (QL); Riad v Riad, 2002 ABCA 254, 317 AR 201; and Frank).

In those cases, thecompensatory basis for spousal support had not yet been satisfied (in terms of amount and duration) when termination of the spousalsupport obligation was sought. As previously explained, that was also the case here according to the motion judge when he made his2011 decision at the time of the first review of spousal support. [57] More relevant, in my view, are the petitioner’s arguments as to the motion judge’s assessment of the parties’ standard ofliving. As previously noted, the motion judge addressed the question of marital standard of living in his reasons. While spousal support

is not intended to “guarantee” the same standard of living that the parties enjoyed during marriage, it is a relevant consideration in anyspousal support determination (Moge at p 870). On break up of a lengthy marriage, a spouse entitled to spousal support should be able toenjoy a reasonably comparable lifestyle post-separation to the marital standard of living (see Allaire at para 21). [58] The record here indicates that during the marriage, the parties lived what I describe as, a comfortable middle-classlifestyle focussing on family life in the matrimonial home and community involvement.

Except for the private schooling of theirchildren, the parties did not enjoy common-sign posts of an affluent lifestyle such as expensive vacation properties, the latest luxurymotor vehicles for the couple or significant discretionary spending on an ongoing monthly basis (see Bockhold v Bockhold, 2010 BCSC214 at para 40 (QL); and Bennett v Bennett (2001), (ON SC), 13 RFL (5th) 325 at paras 9-13 (Ont Sup Ct)). [59] I would not disturb the finding that the petitioner had inflated monthly expenses in her budget because it includedsubsidizing A. and P.

Her monthly budget included over $2,000 per month to support A. and P.’s lifestyle.

While I understand that thepetitioner sincerely believes that the respondent has a moral obligation to support A. and P. until they have a professional designation,the respondent’s legal obligation to support them is now over save for the proviso made by the motion judge in his order terminatingchild support in relation to P. [60] I also see no reversible error in the motion judge refusing to acknowledge the petitioner’s claim that she took out a$236,000 “loan” from her elderly parents that must be accounted for in assessing her ability to support her standard of living.

Thissizeable, unsecured loan had no documents to support it (other than proof she had received the monies), or its repayment, and no affidavitfrom her mother as to an expectation of, or likelihood for, repayment. It was open to the motion judge to see this advance to thepetitioner as a gift. [61] Finally, the petitioner’s argument that the motion judge failed to scrutinize the respondent’s monthly budget from a taxperspective is not persuasive.

The basic income tax rules are that periodic payment of spousal support is deductable for the payor and isincluded in the income of the recipient if paid pursuant to a written agreement or court order. Except for certain historic child supportorders, there are no income tax deductions or liabilities in relation to child support (see Canada Revenue Agency, Income Tax Folio S1-F3-C3, “Support Payments” (23 November 2015)). Spousal support is therefore more tax efficient for high earners as the true cost isless because of the tax deduction.

The upshot, says the petitioner, is that the respondent’s monthly expense budget was inflated becauseit did not take into account the tax consequences. The motion judge was alive to the issue and summarized the petitioner’s argument thisway (at para 39): The petitioner says that when the respondent’s child support obligations for A ended on June 1, 2013, his payments decreased by$1,040.00 per month (net of tax). According to the petitioner, this has increased the respondent’s disposable income and his ability topay spousal support.

At the same time, the petitioner says that she has had to pay additional costs for A, albeit that A. is no longereligible for child support. [62] The task of assessing and weighing evidence is primarily the responsibility for trial courts, not appellate courts. Themotion judge’s assessment of the financial evidence and the findings he made in relation to that evidence to reach his decision regardingspousal support must be deferred to on appeal absent a palpable and overriding error (Housen v Nikolaisen, 2002 SCC 33 at paras 10, 19-25, [2002] 2 SCR 235).

I see no basis to interfere with the motion judge’s assessment of the financial circumstances of the parties; in myview, the appeal should be decided on the calculations the motion judge used as to the income of the parties, their net monthly expensesand their net assets. [63] The bird’s eye view of this case is that for just under 11 years the petitioner received, according to the respondent’sfactum, in excess of $500,000 in spousal support primarily on a compensatory basis.

She also received table amount child support for A.for 9 years and for P. for 11 years which allowed for private schools and a university education for both children. The petitioner willalso receive 4 more years of spousal support on a non-compensatory basis that will give her $84,000 per year in combination with heremployment income to ensure she enjoys a reasonably comparable standard of living to married life. If P. pursues a law degree, there isa mechanism in the motion judge’s order to ensure that P. has the equal opportunity to receive the child support that his sister received.

Finally, the petitioner also received an equal division of family property leaving her with capital assets now worth over $600,000. [64] If one looks at the post-separation lifestyles of the parties, the motion judge’s finding that there is not “a significantdisparity in the standard of living experienced by the petitioner and the respondent” (at para 70) was open to him on the record. At thetime of the second spousal support review, the respondent was separated from his third wife and lived alone in an apartment he rents for$1,190 per month.

His significant debts and ongoing obligations to the petitioner and his third wife prevent anything but a modestlifestyle until well into his retirement despite receiving an equalization payment from the petitioner and having a significant income fromhis salary, or on retirement, his judicial annuity.

It is difficult to see from the record how the respondent’s standard of living isdemonstrably better than that of the petitioner. [65] This is not to say, given the respondent’s means, that the petitioner should lose entitlement to spousal support becauseof the financial consequences to the respondent of his lifestyle after separation from the petitioner. The motion judge also found that thepetitioner’s standard of living was not “less than ‘the standard of living to which she was accustomed at the time cohabitation ceased’”(at para 70). I see no palpable and overriding error in that finding.

The petitioner is able to continue to live in the matrimonial home andher monthly budget includes a $1,200 per month allotment in discretionary spending for vacations and eating out. The petitioner claimsin her monthly budget that she “cannot afford” to save for her retirement. [66] Prudent financial planning is to be expected from anyone appearing in family court. Scarcity of resources is just asmuch a reality of economic life for an individual as it is for a corporation or the state. As a matter of law, courts should not condoneirresponsible financial behaviour or enable unrealistic expectations.

It is rather obvious that one could reasonably make some modestadjustment to the petitioner’s discretionary spending budget, for vacations and eating out, to plan and save for retirement over time

without sacrificing a reasonably commensurate lifestyle to the one that she enjoyed in marriage. [67] The size of the respondent’s judicial annuity on his retirement from the Bench figured prominently in the petitioner’ssubmissions on the disparities to her standard of living that the motion judge’s spousal support order will create. By virtue of the JudgesAct, a federally appointed judge may retire with an indexed annuity equivalent to two-thirds of the salary annexed to his or her office ifthe eligibility criteria are satisfied.

As previously mentioned in this case, there was a division of the respondent’s judicial annuitybenefits in accordance with the Judges Act as part of family property equalization in the 2007 consent order and the petitioner also madean election as to the form in which she would receive her share of those annuity benefits. [68] While the respondent’s judicial annuity is not a pension in the truest sense, I see no reason why the principles in Bostonv Boston, 2001 SCC 43, [2001] 2 SCR 413, should not apply, given the provisions of the Judges Act that allow for division of judicialannuity benefits on conjugal breakdown. [69] The motion judge relied on the size of the petitioner’s capital assets in coming to his decision on entitlement as well asthe amount and duration of spousal support.

The petitioner argued that this was an error because she says she should not have toencroach on her capital received from the family property equalization to support her lifestyle. The difficulty with this argument is thatthere are important subtleties that must be recognized as to when double recovery by a spouse receiving spousal support is permissible,despite pension equalization in a family property settlement, as explained in Boston.

Also, there is distinction between encroaching oncapital to live and redeploying capital to generate income to live. [70] While Boston says that there is a rule against double recovery so that a spouse should not receive spousal support paidby the other spouse’s pension (if that pension was previously divided in a family property equalization), that general rule is notparticularly strict and practically, the exception that double recovery cannot be avoided based on the means and needs of the parties, isthe real rule (see Senek v Senek, 2014 MBCA 67 at para 8). [71] The exception to why double recovery cannot always be avoided given the means and needs of the parties wasexplained by Major J in Boston as follows (at para 65): Despite these general rules, double recovery cannot always be avoided.

In certain circumstances, a pension which has previously beenequalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay,where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, aneconomic hardship from the marriage or its breakdown persists.

Double recovery may also be permitted in spousal supportorders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal. [72] Since Boston, courts have not been “too onerous” in applying the exception to the rule against double recovery if aspouse continues to suffer economic hardship (Chamberlain v Chamberlain, 2003 NBCA 34 at para 22, 259 NBR (2d) 309; see alsoMeiklejohn v Meiklejohn (2001), (ON CA), 150 OAC 149 at para 15; Cymbalisty v Cymbalisty, 2003 MBCA 138 atparas 26-27, 180 ManR (2d) 112; and Senek at para 8). [73] The important considerations here are the basis to entitlement to spousal support and whether it is reasonable to expectthe petitioner to sell the matrimonial home at some point to generate income to assist with her living expenses. [74] First, the motion judge found that the basis for entitlement in this case is only on a non-compensatory basis after 2015.

I see no basis to interfere with his conclusion that the basis for compensatory spousal support had been “fully satisfied” by 2015. Whilethis was a 17-year traditional marriage, the circumstances here do not necessarily require an indefinite period of spousal support. Aspreviously mentioned, Moge and Bracklow recognize that the discretion given to judges under

section 15.2 of the Act is broad and maybe exercised to end entitlement to spousal support, even in marriages of the length and interdependence of the parties here.

As I explainlater in my reasons, just because several possible spousal support outcomes were possible in this case, does not mean that the motionjudge erred in his balancing of the relevant factors and objectives in sections 15.2(4) and 15.2(6) of the Act. [75] Second, if one looks at the capital assets of the petitioner, the asset which is most relevant to the discussion in Boston isthe matrimonial home in which the petitioner has equity of at least $457,371.92.

I agree with the petitioner that her RRSPs should not beconsidered as the purpose of that asset is to provide her income in retirement in lieu of employment income. To me, the RRSP assets arenot part of the conversation in the circumstances of this case. [76] I describe the petitioner’s equity as being “at least” $457.371.92 because the motion judge’s approach to the valuationof the matrimonial home, using a value of “$500,000.00” (at para 51), was quite favourable to the petitioner.

A higher value could easilyhave been imputed given the dated property tax assessment before the Court put the home’s valuation at $531,000, and the petitionerdeposed in her affidavit of August 29, 2014, that she had renovated the home to “maintain the value”. [77] Major J made the following relevant comment in Boston as to sale of the matrimonial home (at para 60): Each case depends on its own facts. Generally, the payee spouse would not be expected to sell or leave the matrimonial home,particularly if there are dependent children.

However, in cases where the support order is based mostly on need as opposed tocompensation, different considerations apply. It is not impossible to envisage circumstances where the value of the family home hasbecome disproportionate to the means of the parties so that equity requires that it be sold and replaced appropriately. Suchconsiderations do not arise in this appeal as the support agreement was mainly compensatory.

[78] The decision in Boston acknowledges the possibility that the income-earning capacity of the proceeds of sale of thematrimonial home be taken into account in determining the “means” of a party under

section 15.2(4) of the Act. That said, redeploymentof capital by selling the matrimonial home often may not be a reasonable option because of the unique nature of a residence.

Courtshave looked at factors such as the amount of equity a spouse has in the matrimonial home compared to reasonable housing alternatives inthe particular community, whether there are dependent children residing in the matrimonial home and whether a spouse claiming a needfor spousal support has a disability or significant health problems that materially impair their ability to work (see Kynoch v Kynoch, 2013MBCA 73 at para 43, 294 ManR (2d) 250; Hickey v Princ at paras 92-93; Boston at para 60; and Meiklejohn at para 15). [79] This is not a case where future sale of the matrimonial home cannot reasonably be considered because of dependentchildren.

Currently, while A. and P. live with the petitioner, they are not dependent. Even if P. goes to law school in 2016 and childsupport was awarded, he would complete his law degree by the spring of 2019, when spousal support will end for the petitioner. If onelooks at the situation of A., child support was paid only to the end of the completion of her law degree in England and not thereafter.

Also relevant is that the record before the motion judge was that the petitioner’s health is such that she has the ability to work full timein an appropriate job for the foreseeable future. [80] Redeploying capital received from a family property equalization to generate income is not to be confused withencroaching on capital in order to live at a standard of living reasonably commensurate with the one enjoyed in marriage.

The formermay be permissible in the right case, the latter is not (see Chutter v Chutter et al, 2008 BCCA 507 at paras 90, 123, 263 BCAC 109,leave to appeal to SCC ref’d, [2009] SCCA No 41 (QL); Scott v Scott, 2010 MBQB 139 at para 56, aff’d 2011 MBCA 21, 262 ManR(2d) 237; and Mason v Mason (1995), (MB KB), 104 ManR (2d) 81 at paras 21-22 (QB (Fam Div)), aff’d (1995), (MB CA), 102 ManR (2d) 239 (CA)). [81] Given the relatively reasonable housing market in Winnipeg compared to other major population centres in Canada, thepetitioner has acceptable housing choices for a single person, from the potential proceeds of the sale of the matrimonial home that wouldallow her to downsize.

Such a housing choice could still give her a standard of living reasonably commensurate to her marital standardof living and at the same time give her money left over to generate income. The petitioner’s argument that because her mortgagepayment is low ($150 per month), it is really not reasonable that she should have to consider downsizing, ignores the fact she will haveno mortgage and reduced monthly expenses if she buys or rents a smaller residence that still allows her to live a comfortable middle-classlifestyle. [82] In

summary, her employment income, together with prudent investment and use of the petitioner’s capital not requiredfor reasonable housing needs would not result in her having to encroach on her capital, to live at the standard of living reasonablycommensurate with the one she enjoyed in marriage. I do not accept the petitioner’s submission that if spousal support is ended in 2019she will be forced to live at a subsistence level.

The record before the Court is that the petitioner has the ability to work full time inmany types of jobs and also has capital which can be redeployed to generate income to maintain her present standard of living until shebecomes eligible for CPP, Old Age Security Pension and makes a decision as to when to begin to draw income from her RRSPs. [83] The one concern I do have is that, to me, the motion judge’s decision is premised on the idea that the respondent willretire outright by September 8, 2019, thereby reducing his means to pay spousal support.

In his affidavit of July 4, 2014, the respondentdeposed: I have worked as a Judge for many years and hoped I would work until the age of 65 years. I am no longer certain I will work past my 65th birthday. Counsel for both parties agreed at the hearing of the appeal that my

interpretation of the underlying premise of the motion judge’sdecision is the correct one in their view. [84] By law the respondent is not required to fully retire as a judge before spousal support ends pursuant to the motionjudge’s order. It would be an end run around the motion judge’s logic if his assessment of the means and needs of the parties was upsetby the respondent not being fully retired by September 8, 2019.

Section 17(10) of the Act adequately protects the petitioner if thatoccurs, but in terms of making reasonable choices as to redeploying her capital, fairness requires that the petitioner have adequate noticeof when the respondent will have the reduced means to pay spousal support which the motion judge anticipated would be by the fall of2019. [85] Accordingly, I would amend the motion judge’s order and add a condition that the respondent is ordered to providewritten notice to the petitioner of his full retirement date, when he will no longer be either a regular or supernumerary judge of the Courtof Queen’s Bench (Family Division), on the earlier of two weeks after notifying the Minister of Justice of his decision in accordance withthe Judges Act, or alternatively, if the respondent decides to delay his full retirement beyond September 8, 2019, he is to notify thepetitioner of his anticipated full retirement date by December 31, 2018.

This condition will allow the petitioner sufficient time toconsider her options. [86] The overall adequacy of the spousal support order here must be looked at in light of the SSAG mindful of thelimitations of the SSAG. The SSAG do not deal with the question of entitlement. The SSAG do not have the force of law.

The SSAGalso have structural limitations as well as exceptions. [87] Despite its limitations, the SSAG’s approach to amount and duration of spousal support is a helpful reference, or “litmustest” (Fisher v Fisher, 2008 ONCA 11 at paras 102, 112, 232 OAC 213 (Fisher (Ont CA)), in assessing the reasonableness of a spousalsupport order (see Kynoch at paras 46-48; Rémillard v Rémillard, 2014 MBCA 101 at para 84, 310 ManR (2d) 204; and Frank at paras

87-88). [88] The motion judge stated that the SSAG range of spousal support based on the income differential of the parties usingthe without children formula was $5,653 to $7,537 with a midpoint of $6,595. He also correctly noted that the SSAG formula for a 17-year marriage suggested a duration of spousal support for a period of between 8.5 and 17 years. [89] I would not accede to the petitioner’s argument that it was an error for the motion judge to use the SSAG for theduration of spousal support, but not for the amount.

Considerations of the amount and duration of spousal support are “interrelate[d]”(Bracklow at para 54). The SSAG recognizes this principle. [90] The overall adequacy of spousal support ordered must be assessed by an appellate court mindful that there are oftengood reasons for a judge to trade off the amount and duration ranges set out in the SSAG (see the SSAG at X, 10.2.1 and 10.2.2;McCulloch v Bawtinheimer, 2006 ABQB 232 at paras 61-62, 423 AR 88; Fisher (Ont CA) at para 114; and Cassidy at paras 74-75).

Thecanary in the coal mine for an appellate court that signals possible unreasonableness with a spousal support award is, in the absence of anobvious reason to explain an anomalous result, whether the global value of spousal support, considering the amount and durationtogether, is drastically less or more than what is suggested by the SSAG (see Rémillard at para 91; and Fisher (Ont CA) at para 102). [91] If one theoretically restructures the spousal support award, for the purposes of appellate review, from the specificranges of amount and duration identified by the motion judge in his reasons using the SSAG’s without child support formula to a roughlycalculated lump sum amount (without considering variables such as the need to discount for present value or adjust for taxconsequences), the conversion amounts to a broad range of $576,606 to $1,537,548 (see Fisher (Ont CA) at para 111).

That can becontrasted with the amount of spousal support ordered over the entire 15-year period in this case, being in excess of $750,000 accordingto the respondent’s factum. [92] Another theoretical restructuring makes the same point. If one reduced the duration of support from 15 years to ashorter period above the SSAG floor of 8.5 years, but still assuming that the petitioner received the overall total amount of spousalsupport of over $750,000, the effect would be that the petitioner’s amount of spousal support in the shorter period would be higher thanthe floor amount suggested by the SSAG.

I appreciate that calculation would ignore the fact that the motion judge stated a reason todepart downward from the floor amount of the SSAG for the period of 2015-2019, but the theoretical restructuring illustrates that theglobal amount of spousal support is within the ranges suggested by the SSAG for a 17-year marriage. [93] For the purposes of appellate review of the spousal support order, I am also mindful that this is a “crossover” case (seethe SSAG at 8.11 and 14.5).

For over two-thirds of the 15-year period, the respondent was also paying child support in the table amount(even when A. and P. were adults (see the SSAG at 8.10)). However, at the time of the second review, the motion judge correctly usedthe without child support formula under the SSAG (see Holman v Holman, 2015 ONCA 552 at para 32, 336 OAC 350).

In terms of thelitmus test of reasonableness, the global value of spousal support is within the ranges generated by the formula most favourable to thepetitioner, even though for the majority of that period the SSAG would have suggested lower spousal support payments as the relevantformula would have been the basic with child support formula. [94] For completeness, I would note that the question of inadequate spousal support, due to the priority given to payment ofchild support for most of the 15-year period, was not argued before this Court or, it would appear, before the motion judge (see section15.3 of the Act; and the SSAG at 12.11).

In the circumstances, I would not interfere with the motion judge’s order for that reason. [95] Using the SSAG, could the motion judge have ordered a greater amount or duration of spousal support? The answer isyes. But that does not make the outcome he reached unreasonable. That said, as an aside, it is important to remember that proper use ofthe SSAG is more than just math and an understanding of the SSAG. A critical analysis of the individual circumstances using thecorrect legal principles in the Act must be made by the judge in making a spousal support order (see Kynoch at para 47).

In using theSSAG to assist that critical analysis, judges must remember the threshold question of entitlement, make proper findings of fact in relationto the calculations required for the relevant formula and also direct their mind to the SSAG at ch 9 for suggestions as to using the SSAGranges in light of the given circumstances and the legal principles in the Act.

Departure from the SSAG should also be explained by thejudge if the reason is not self-evident from the record and the parties’ submissions. [96] I have also not been persuaded that the motion judge overemphasized the objective of self-sufficiency (section15.2(6)(

d) of the Act). In Rioux v Rioux, 2009 ONCA 569, 252 OAC 126, Epstein JA explained the concept of self-sufficiency in thefollowing way, “Self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestylethe couple enjoyed during their marriage” (at para 42) (see also Fisher (Ont CA) at para 53). [97] In his reasons for both spousal support orders, the motion judge correctly understood that the objective of self-sufficiency is only one of several objectives to be considered in determining spousal support (see Moge at 850-52). It has no specialstatus. The wording of

section 15.2(6)(

d) of the Act also makes it clear that the objective of self-sufficiency is qualified by the ideas ofpracticability and reasonable timeframe (see Hykle v Hykle, 2007 MBQB 243 at para 53, 219 ManR (2d) 198; and Rémillard at para112). Allowance must be made for the realities of the marketability of the individual and, further, that a person cannot transitionovernight (see Moge at 881-82). [98] In my view, the motion judge took appropriate care in his assessment of the consequences of the petitioner’s lack ofreasonable effort.

In making his findings, I am satisfied that the motion judge correctly understood that a lack of progress towards self-sufficiency, while a relevant fact to consider, is not blameworthy in the sense that a party is breaching a legal duty (see Leskun at para 27;and Rémillard at paras 105-6, 108-10). The motion judge also considered the question of self-sufficiency in light of the marital standardof living. In his first decision, the petitioner’s lack of diligence towards self-sufficiency did not affect her entitlement to spousal support.

In his second decision, her continued lack of diligence towards self-sufficiency became more relevant to her entitlement to spousalsupport as well as the amount and duration. [99] As Carr J commented in Derkach v Derkach (1989), (MB KB), 60 ManR (2d) 278 (QB (Fam Div)),people have to be “realistic with regard to the marriage breakdown and/or retraining” (at para 9). Assessment of a payee spouse’s

“reasonable efforts” to becoming self-sufficient post-separation is a question of fact (Juvatopolos v Juvatopolos (2005), (ON CA), 202 OAC 1 at para 10).

While the record is clear that the petitioner has difficulty for religious and cultural reasonswith the concept of divorce, and has had many challenges after the separation, I see no palpable and overriding error in the motion judgeconcluding that many years went by, after the petitioner’s physical, emotional and psychological well-being had stabilized, with littleevidence of any demonstrable steps being taken by the petitioner towards economic transition from marriage to life as a single person. [100] The normal consequence of a finding of insufficient effort towards self-sufficiency is the imputation of income for theperiod of under-employment as opposed to a time-limited order (see McEachern v McEachern, 2006 BCCA 508, 232 BCAC 185; andHeimsoth v Heimsoth, 2009 ABCA 129, 457 AR 22). [101] A spousal support review hearing, however, should not normally beget endless further review hearings.

Finality isimportant in family law. Review hearings have significant financial and emotional costs to the parties (see Fisher (Ont CA) at para 63). The principle of proportionality dictates that at some point spousal support disputes be decided on their merits subject to the variationregime under

section 17 of the Act. What is clear in this case is that there was a finding of insufficient effort over a very long period oftime, despite the clear message by the motion judge in the first spousal support review decision, that the petitioner needed to intensify herefforts and be prepared to disclose relevant information as to her efforts at a future review. In such circumstances, I do not see an error inthe motion judge resolving the controversy before him by a final order for a definite period of spousal support subject to variation aspermitted by

section 17 of the Act (see Leskun at paras 36-40; Hedley v Hedley (1989), (BC CA), 22 RFL (3d) 309 at314-15 (BC CA); and Bildy v Bildy (1999), (ON CA), 42 OR (3d) 737 at 740-41 (CA)). [102] In my view, the petitioner’s argument of alleged overemphasis on self-sufficiency “amounts to a criticism of the motionjudge’s balancing of factors rather than to an error in principle” (Holman at para 29). Judges have significant discretion as to how muchweight should be placed on any of the factors and objectives in sections 15.2(4) and 15.2(6) of the Act.

The weight the motion judgeplaced on self-sufficiency here was not unreasonable in light of the history of the case (see Walsh v Walsh, 2007 ONCA 218 at para 13,36 RFL (6th) 262, leave to appeal to SCC ref’d, [2007] SCCA No 239 (QL)). [103] In

summary, the motion judge had discretion as to how best to achieve a just result in light of the facts as he found themand the factors and objectives in sections 15.2(4) and 15.2(6) of the Act. This is a difficult case because it is a 17-year traditionalmarriage such that there is, at least to me, a range of reasonable outcomes that could have been ordered, one of which was what themotion judge ordered. Counsel ably made reasoned arguments that a different type of spousal support outcome could have occurred inthe circumstances that would have been more favourable to the petitioner.

However, the standard of review does not give this Court anindependent discretion. As Bryson JA said, in similar circumstances, in Werner v Werner, 2013 NSCA 6, 325 NSR (2d) 175, “Shemakes good arguments – but these were considered by the trial judge. We cannot substitute our own discretion for his, provided heconsidered correct principles” (at para 61). Considerable deference to the decision of the motion judge must be given absent him makinga reversible error in fact or law or arriving at a result that is clearly wrong.

Mindful of the standard of review, I see no basis to interferewith the motion judge’s decision. Disposition [104] In the result, I would dismiss the appeal, subject to my comments in para 85 of these reasons, with costs. JA I agree: JA I agree: JA