BACKGROUND
The Appellant husband is appealing 2 spousal support orders, which state that the husband pay the Respondent wife:
- Ongoing spousal support at $5,979 per month, effective March 31, 2022;
- A lump sum “catch-up amount” of $36,433 for a shortfall in the support the husband paid between January 7, 2020 and March 31, 2022 pursuant to an interim order; and
- Retroactive spousal support of $86,108 as of November 1, 2017.
The husband appealed all three support payments.
ISSUES
- Did the trial judge err in calculating mid-range ongoing spousal support
- Did the trial judge err by not imputing income to the wife?
- Did the trial judge err in calculating retroactive spousal support?
- Did the trial judge err in quantifying the lump sum catch-up amount?
ANALYSIS
The appellate judge noted that they will not interfere with a spousal support award if, considering all factors, it remains a fit and appropriate award in the circumstances.
- Did the trial judge err in calculating mid-range ongoing spousal support?
The trial judge awarded the wife mid-level spousal support at $5,979 per month based on the husband’s income of $156,255. The husband argued that per the Spousal Support Advisory Guidelines (“SSAGs”), the mid-level support for that income is $5,697 per month. Thus, he claimed that the trial judge ordered a high-level support award instead of a mid-level one.
However, the trial judge’s amount was based on the husband’s gross income, which is consistent with the SSAGs.
- Did the trial judge err by not imputing income to the wife?
Although the wife was eligible to begin receiving income from the Canada Pension Plan “CPP” and Old Age Security (OAS), she chose to postpone this. There are 2 reasons why not imputing her income was appropriate.
First, the wife received professional advice that it would be financially advantageous for her to delay the CPP and OAS payments until the age of 70. The trial judge concluded that there was no good reason to compel the wife to accept the payments at her financial detriment.
Second, the trial judge determined that when the wife begins receiving this income, the ongoing spousal support payments would be reduced accordingly.
The Court of Appeal ruled that the trial judge’s decision must be shown deference; thus, the trial judge did not err in declining to impute the wife’s income.
- Did the trial judge err in calculating retroactive spousal support?
Retroactive Support Beginning November 1, 2017
Retroactive spousal support obligations normally begin when formal notice of spousal support claim has been provided. However, a judge can calculate retroactive support from the date of effective notice if there is a reason to do so.
In this case, the trial judge found that the husband had effective notice that the wife sought support in November 1, 2017 when the parties had a conversation about it.
The trial judge determined that the delay between the effective and formal notice is explained due to the wife’s mental health challenges. Further, the wife was entirely dependent on the husband, so she lacked the emotional means to make a support claim. Thus, the date of November 1, 2017 to commence retroactive spousal support is acceptable.
Occupation Rent
The decision whether to include occupation rent is discretionary, and where the trial judge considers it to be “reasonable and equitable” to do so.
The trial judge found that occupation rent was unnecessary, since the husband was not paying spousal support while the wife lived in the matrimonial home post-separation, and he delayed the sale of the matrimonial home.
The Award of Retroactive Support
The trial judge awarded the wife the difference between the support the husband should have paid based on his gross income and the funds that the wife withdrew from a joint bank account over the relevant period. The funds contained the husband’s after-tax earnings.
The husband argued that the spousal support amount should be reduced since the trial judge did not make tax adjustments.
However, the Court of Appeal determined that judges are not required to make tax adjustments for retroactive spousal support. The decision to do so is discretionary based on whether a tax adjustment is required to achieve a fair support award.
The Court of Appeal found no reason to overturn the trial judge’s decision.
- Did the trial judge err in quantifying the lump sum catch-up amount?
The catch-up amount is from March 1, 2020 (when an interim spousal support order took effect) and March 31, 2022 (when the trial judge ordered the amount of ongoing spousal support).
The husband argued that the trial judge erred by not adding credit for his payment of expenses and for the wife’s joint account withdrawals. However, the Court of Appeal determined that the catch-up amount the trial judge ordered is not unfit or inappropriate.
CONCLUSION
Appeal was dismissed.