



COURT OF APPEAL FOR ONTARIO

CITATION: Gray v. Gray,
    2014 ONCA 659


DATE: 20140925

DOCKET: C57675

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

James David Gray

Applicant (Respondent in Appeal)

and

Kathleen Janet Gray

Respondent (Appellant in Appeal)

Bryan R. G. Smith and Sarah Conlin, for the appellant

Carol A. Allen and Megan L. Celhoffer, for the
    respondent

Heard: July 16, 2014

On appeal from the order of Justice Clayton Conlan of the
    Superior Court of Justice, dated August 26, 2013, with reasons reported at 2013
    ONSC 5478.

Lauwers J.A.

A.

introduction

[1]

The respondent, James David Gray, brought a motion to change to
    eliminate child support for the children of the marriage since they are all now
    adults, with retroactive effect. Mr. Gray also sought to eliminate the
    obligation to pay spousal support, and in the alternative, a continuation of spousal
    support at $800 per month, indexed, as set by Thompson J. in the 1998 divorce
    judgment.

[2]

The appellant, Kathleen Janet Gray, sought an increase in spousal
    support from $800 per month to $4,302 per month, also with retroactive effect. The
    interim order of Herold J. on April 30, 2012, terminated child support, but
    increased spousal support to $3,000 per month.

[3]

The motion judge conducted a trial. He terminated child support, and
    found that Mr. Gray had overpaid child support in the amount of $75,044.00. By
    order dated August 26, 2013, he ordered spousal support to continue at $800 per
    month, indexed, and found that Mr. Gray was in arrears of spousal support in
    the total amount of $79,807.32. He ordered Ms. Gray to pay $5,000 in costs. The
    result was a virtual offset.

[4]

Ms. Gray appeals. I would allow the appeal and, in particular, require
    Mr. Gray to pay spousal support at the low end of the range established by
    the Spousal Support Advisory Guidelines (SSAG), for the reasons set out below.

B.

BACKGROUND

(1)

Relevant facts

[5]

The appellant and respondent were married in June 1980. They had four
    children: a daughter, K, born April 9, 1981; a son, A, born February 18, 1983,
    a son, W, born October 27, 1988, and a son, J, born November 9, 1990.

[6]

The parties separated, either in December 1994, when, according to Mr. Gray,
    they ceased to be in a conjugal relationship, or in July 1996, when Mr. Gray
    served Ms. Gray with a petition for a divorce. There was a protracted battle
    about spousal and child support, which was complicated when Mr. Gray filed for
    bankruptcy in 1998. He is still an undischarged bankrupt.

[7]

Mr. Gray is now re-married and has three young children with his new
    wife. He lives in Indiana, U.S.A. He owns two homes, one in Indiana and one in
    Collingwood, Ontario, both with substantial mortgages. The Collingwood home is
    listed for sale at $684,000. Since 2005, his employment income has been
    $144,500 gross plus a bonus that has averaged about $25,000. Mr. Grays
    remuneration was paid in Canadian funds until July 2012 when he began working
    in Indiana. At the time of trial he had almost $90,000.00 in investments and
    savings.

[8]

Ms. Gray has not worked out of the home since she was admitted to the
    hospital for a suspected heart attack on December 31, 1994. She was ultimately
    diagnosed with leukemia and her health remains fragile. She receives long-term
    disability benefits and CPP benefits. Her annual income is currently about $33,500.
    She lives in the former matrimonial home in Meaford, which has about $67,000 in
    equity. She owns other assets, such as a timeshare in Hawaii and title to a
    cottage in Ontario.  She has admitted that her current financial situation is affected
    by the fact that she paid to send the children of the marriage to private
    schools.

(2)

The Litigation History

[9]

I set out only the elements of the litigation history relevant to this
    appeal. Thompson J. issued the Final Order/Divorce Judgment on May 21, 1998.
    Paragraph 4 of the Judgment required Mr. Gray to provide spousal support:

This court orders and
    adjudges
that the Petitioner shall pay spousal support to the Respondent
    in the amount of $800 per month commencing May 20, 1998. This quantum of
    support is less than is required by the Respondent but is ordered in accordance
    with  15.3(2) of the
Divorce Act
. This spousal support shall be
    indexed in accordance with section 34(5) of the
Family Law Act
.

[10]

Thompson
    Js reasons did not surface until after the argument of the motion to change,
    although they are reported at
Gray v. Gray,
68 O.T.C. 217. With respect
    to the spousal support award, he explained, at para. 39:

Mrs. Gray is entitled to spousal support. I have concluded that
    an appropriate amount would be the sum of $800 per month commencing May 20,
    1998. This is less than I would have awarded but the needs of the children must
    take precedence.

[11]

Paragraph
    5 of the Judgment required Mr. Gray to pay child support:

THIS COURT ORDERS AND ADJUDGES that commenc[ing] on May 20, 1998,
    and on the 20th day of each subsequent month, the Petitioner shall pay to the
    Respondent child support in the amount of Two Thousand Three Hundred and One
    Dollars ($2,301.00) for the four (4) children of the marriage, being One
    Thousand Nine Hundred and Fifty-One Dollars ($1,951.00) as base child support,
    and Three Hundred and Fifty Dollars ($350.00) per month towards the childrens
    special and extraordinary expenses. The base quantum of child support is based
    on the Petitioners base annual income of One Hundred and One Thousand, Nine
    Hundred and Eighty-Two Dollars and Ninety-Two Cents ($101,982.92).

[12]

Thompson
    J. clearly intended that child support take into account both Mr. Grays base
    salary and his bonus. He elaborated, at para. 49 of his reasons:

In the event that the husband receives a bonus from his
    employer over and above his base salary of $101,982 per annum, he shall
    forthwith advise the wife, in writing, of this event. Child support shall then
    be determined on a retroactive basis for the 12 month period immediately
    preceding the receipt of the bonus. Child support shall be determined by adding
    the base salary received by the husband and the bonus received, to ascertain
    the gross annual income from employment for the 12 month period preceding receipt
    of the bonus. The Child Support Guidelines shall be applied using the gross
    annual income figure to determine the child support payable for the 12 months
    preceding the payment of the bonus. Any support arrears created by this
    calculation shall be payable effective the date the bonus was received.

[13]

The
    parties came before Thompson J. again years later. On November 10, 2004, he
    issued a complex order relating to spousal support arrears, child support
    arrears, and ongoing child support obligations. The order was silent about
    ongoing spousal support but did not alter the 1998 Judgment which required such
    support.

[14]

Thompson
    J. issued another order on January 7, 2005 providing that Mr. Gray shall
    pay to [Ms. Gray] as child support the sum of $3,429 per month.

[15]

The
    record is clear that Ms. Gray ignored Mr. Grays efforts to have the child
    support obligation adjusted as the children aged. He then brought the motion to
    change. Herold J. issued a temporary order on April 20, 2012 terminating child
    support, on consent. He increased spousal support, not on consent, to $3,000
    per month effective May 1, 2012. He noted in his endorsement that:

It is clear from the material filed that Mother is just getting
    by while receiving over $3,000/month in child supportI am completely satisfied
    that Mother needs, and father has the ability to pay interim spousal support of
    $3,000 per month.

C.

The decision below

(1)

Child Support

[16]

There
    is no dispute between the parties that the child support ought to have been
    reduced over time. K graduated from university in 2005, and child support for her
    should have terminated September 1, 2005. Their eldest son, A, graduated from university
    in spring 2007 and the motion judge set May 1, 2007 as a reasonable date to
    terminate child support for him. He added, at para. 87, that for W and J, the
    safest, most reliable and most fair termination date to use is that decided by
    Herold J. - April 30, 2012. As noted, the motion judge did the calculations
    and found that Mr. Gray had overpaid child support in the amount of $75,044.
    The parties do not dispute the motion judges determination of this issue or
    his calculation.

(2)

Spousal Support

[17]

The
    motion judge rejected Ms. Grays request for spousal support on a compensatory
    basis, at para. 66. He found, however, at para. 67, that she was entitled to
    spousal support on a needs basis:

But I am satisfied on balance that there remains currently an
    entitlement to spousal support by Ms. Gray on a need basis. Her current income
    is a small fraction of what the marital standard of living was prior to
    separation. Her current income is a small fraction of Mr. Gray's. Her health remains
    precarious. I have no reason to impute any income to her. And she has very
    limited assets of a known value.

[18]

The
    motion judge went on at para. 76:

Ms. Gray's need for spousal support is no greater today than it
    was in May 1998. In fact, with the recent increase in her LTD benefits and the
    ages and stages of her children, it is arguable that her need is somewhat less.

[19]

The
    motion judge ordered, at para. 77, that the $800 per month in spousal support,
    indexed, as ordered by Thompson J. in his May 20, 1998 judgment, be continued.

[20]

The
    motion judge found that Mr. Grays arrears of spousal support were $79,807.32.
    These arrears accrued because of confusion as to whether the 2005 order of
    Thompson J. for $3,429 included the $800 per month in spousal support.  The
    motion judge found that spousal support was not included in that order, so that
    the spousal support ordered in the 1998 divorce judgment continued in force.  The
    parties do not dispute the calculation of this number, which was derived with
    the assistance of the Family Responsibility Office, taking into account the
    indexing provided for in the original order.

D.

The issue

[21]

The
    sole issue is whether the spousal support ordered by the motion judge was
    adequate in light of the law as applied to the facts.

E.

The Standard of Review

[22]

This
    court should not overturn a support order unless the reasons disclose an error
    in principle, a significant misapprehension of the evidence, or unless the
    award is clearly wrong:
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para.
    11.

F.

Analysis

[23]

In
    my view, on the evidence accepted by the motion judge, the spousal support
    amount of $800 per month, indexed, is clearly wrong, due to a number of errors
    in principle and a significant misapprehension of some of the evidence.

[24]

In
    the circumstances, using the logic of Lang J.A. in
Cassidy v. McNeil
2010
    ONCA 218,  99 O.R. (3d) 81, at para. 39, in my view, the record is sufficient
    to permit this court to arrive at an appropriate result without the need to
    order a new trial with its resulting costs and delay.

[25]

Consistent
    with the
Divorce Act,
R.S.C., 1985, c. 3, (2
nd
Supp.) the
    trial judge considered two distinct conceptual bases for entitlement to spousal
    support: on the basis of need and on a compensatory basis. (The contractual
    basis is not relevant.)

The Needs Basis

[26]

I
    would agree with the motion judge that Ms. Gray is entitled to spousal support
    on a needs basis. But the motion judges determination of her actual need was
    wrong in fact and in principle.

[27]

One
    of the objectives of the
Divorce Act
is to relieve economic hardship. 
    Need is not measured solely to ensure a subsistence existence, but rather
    should be assessed through the lens of viewing marriage as an economic
    partnership.  As stated by this court in
Marinangeli v. Marinangeli
(2003),
    66 O.R. (3d) 40 at para. 74
,
in determining need, courts ought to be
    guided in part by the principle that the spouse receiving support is entitled
    to maintain the standard of living to which she was accustomed at the time
    cohabitation ceased. The analysis must consider the recipients ability to
    support herself, in light of her income and reasonable expenses.

[28]

In
    the case before us, Ms. Grays health prevents her from working.  This is
    relevant to the assessment of her needs.  As stated by the Supreme Court in
Bracklow
    v. Bracklow,
[1999] 1 S.C.R. 420, in some circumstances the law may
    require that a healthy party continue to support a disabled party, absent
    contractual or compensatory entitlement. Justice and consideration of fairness
    may demand no less. (at para. 48).

[29]

In
    fixing monthly spousal support at $800, indexed, the motion judge made the
    following comments, at paras. 34-35:

Ms. Gray testified that the $800.00 per month in spousal
    support ordered by Thompson J. in May 1998 was less than what she was entitled
    to but ordered nonetheless so that more money went to the children for their
    support.

It is noteworthy that paragraph 4 of the said Judgment in May
    1998 does include these words: "this Court orders and adjudges that the
    Petitioner shall pay spousal support to the Respondent in the amount of $800.00
    per month commencing May 20, 1998. That quantum of support is less than is
    required by the Respondent but is ordered in accordance with 15.3(2) of the
Divorce
    Act
".

[30]

In
    my view, the motion judges observations in these paragraphs are logically
    inconsistent. It is plain from the wording of the 1998 order of Thompson J. that
    he was awarding an amount of spousal support that was lower than he might
    otherwise have ordered, because the child support payments were so high. He
    recognized, consistent with s. 15.3 of the
Divorce Act
, which is cited
    in his order, that there is financial synergy that benefits the spouse who has
    custody of the children and receives child support.

[31]

The
    spousal support amount in 1998 was plainly not based on Ms. Grays actual need
    in 1998. It was therefore wrong for the motion judge to conclude that her need
    in 2014 is no greater than it was in May 1998 and that her need now is properly
    measured by that amount of $800 per month, as indexed.

[32]

In
    determining the need of the recipient, it was also incumbent on the motion
    judge to make a finding as to the appellants income.  The motion judge found
    that, according to Ms. Grays June 2013 Financial Statement, her 2012 gross
    income was $49,563.00. This number was comprised of $1,022.70 per month in CPP,
    plus $1,315.31 gross per month in LTD benefits and a small amount of investment
    income. Her disability income discontinued shortly after trial when she began
    receiving her pension of $1,600 per month. She says the figure used by the
    motion judge mistakenly includes her $20,966.99 in spousal support.

[33]

I
    would agree with the appellant that the motion judge erred, at para. 78, in
    finding Ms. Grays income to be $49,563 annually, since that figure included
    spousal support. There is no evidence to suggest that her disability payments
    are tax-free. I would accept the appellants calculation of Ms. Grays income
    at approximately $33,500 per year.

[34]

By
    overstating the appellants income, the motion judges analysis of need was
    faulty.  The needs of Ms. Gray can only be ascertained if measured against an
    accurate picture of her income.  Ms. Grays budget, as found in her financial
    statement, is not extravagant, nor does it reflect the lifestyle the parties
    enjoyed prior to separation.  She has reasonable expenditures relating to
    housing, utilities and groceries.  Her personal and health related expenses are
    modest.

[35]

The
    only portion of her budget on which the appellant was cross-examined, related
    to her payment of the parties sons credit card, and her charitable donations. 
    The respondent also notes that Ms. Grays debts, including the mortgage, might
    be significantly less had she not spent improvidently on private schools.

[36]

Ms.
    Grays budget shows monthly expenditures of $5,571. The motion judge noted at
    para. 67 that Ms. Grays income provides a small fraction of what the marital
    standard of living was prior to separation, and that Mr. Grays income far
    exceeds hers.  While some of her monthly expenses may have been diminished had
    she not incurred debt associated with paying for private schools or otherwise
    supporting adult children, her need is well beyond a spousal support award of $800.00
    per month. Setting apart her mortgage payment and her payment on her sons
    credit card, her budget shortfall would be more than $2,000 per month.

The Compensatory Basis

[37]

I
    would also disagree with the motion judges conclusion, at para.66, that Ms.
    Gray is not entitled to spousal support on a compensatory basis. His reasoning
    is simply conclusory. His statement, at para. 80, that the marriage was
    anything but traditional does not offer any analysis of the economic
    consequences of the marriage or its breakdown, as the Supreme Court  intended
    in
Moge v. Moge,
[1992] 3 S.C.R. 813

at paras. 41- 42 .

[38]

The
    purpose of compensatory support is to share the economic advantages and
    disadvantages that accrued because of the marriage and its subsequent
    breakdown. In
Moge v. Moge,
at p. 861, para. 70, the Supreme Court
    explained the principle behind the compensatory model of support as follows:

Today, though more and more women are working outside the home,
    such employment continues to play a secondary role and sacrifices continue to
    be made for the sake of domestic considerations. These sacrifices often impair
    the ability of the partner who makes them (usually the wife) to maximize her
    earning potential because she may tend to forego educational and career
    advancement opportunities. These same sacrifices may also enhance the earning
    potential of the other spouse (usually the husband) who, because his wife is
    tending to such matters, is free to pursue economic goals.

[39]

The
    evidence in this case supports an entitlement to compensatory support. The
    appellant was employed as a flight attendant at the time of marriage.  The
    parties had four children between 1981 and 1990. Ms. Gray gave evidence that
    her employment as a flight attendant functioned well for her family because she
    would only get paid for the hours she worked.  She enjoyed her work and felt it
    offered the best benefits to the family as well as time at home.  This meant
    that she could arrange her schedule to accommodate childcare responsibilities. 
    Both parties acknowledge that she planned her schedule to fly on weekends, when
    Mr. Gray was available for child care.   In addition, she took frequent unpaid
    leaves of absence, some related to giving birth, and others to have time off at
    home.

[40]

At
    the time of separation, the children were 15, 13, 8 and 5 years old.  Ms. Gray
    had custody of the children, while Mr. Gray had access one evening a week and
    every other weekend.  Post separation, Ms. Gray was unable to return to work
    for health reasons.  However, it is clear that she undertook the bulk of the
    responsibilities relating to the children.  Her labour on the home front during
    these years enabled Mr. Gray to pursue his career without undue concern for the
    day-to-day realities of child rearing. During this time, Mr. Grays income
    increased substantially.

[41]

As
    noted, the trial judges reasons are conclusory. He does not appear to account
    fully for the factors set out above. On the evidence, her career choices and
    her work schedule were taken to further family needs. An award of compensatory
    support is warranted based on the responsibilities undertaken by both parties
    during the marriage, and post-separation.

The Application of the SSAG

[42]

The
    SSAG are neither legislated, nor binding.  However they are a useful tool with
    which to measure the quantum and duration of spousal support. The motion judge
    referred to the SSAG but did not advert to them when he set the amount of
    spousal support. He seemed to see his task as setting the SSAG numbers for the
    next review of spousal support, but not the review that he was engaged in.

[43]

This
    court commented in
Fisher v. Fisher,
2008 ONCA 11, 88 O.R. (3d) 241, at
    para. 96 that the SSAG only apply to initial support applications, and not to
    variation proceedings.
Fisher
was not a variation proceeding that
    entailed consideration of s. 15.3 of the
Divorce Act
. At the time of
Fisher
the final publication of the SSAG had not been released. The July 2008 SSAG
    publication contemplates that the guidelines have a role to play on variation.
    The SSAG expressly comment that it should be possible for either spouse to
    apply to cross over from the with child support formula to the without child
    support formula, to affect the amount of spousal support ordered.

[44]

The
    approach taken by Cohen J. in
Abernathy v. Peacock,
2012 ONCJ 145,
    [2012] O.J. No. 1203

is appropriate in the current case
.
As in
Abernathy
, Ms. Gray is entitled to support on a need and compensatory
    basis.  The 1998 support order was deliberately lower than it ought to have
    been in recognition of her receipt of child support, as permitted by s.15.3 of
    the
Divorce Ac
t. In such circumstances, the SSAG offer a valuable tool
    in assessing a reasonable amount of spousal support, and should be routinely
    consulted. The motion judge erred in failing to do so.

[45]

In
    some cases, there are complicating factors that must be considered before a
    court applies the SSAG wholesale. Complicating factors that courts ought to
    consider include variations based on the post-separation income increase of the
    payor, or situations with second families. In such cases, the court must conduct
    an analysis of the facts of the specific case to assess whether the SSAG ranges
    are appropriate.

[46]

There
    is no basis on which to interfere with the motion judges finding that the
    figure of 16 years should be used as the length of the marriage/cohabitation. But
    the motion judge then made errors in identifying the incomes of both parties. 
    As discussed above, Ms. Grays spousal support ought not to have been included
    in her income. Her annual income is therefore approximately $33,500.

[47]

As
    for Mr. Grays income, I would agree with the appellant that the motion judge
    erred, at para. 78, in not including Mr. Grays regular bonus in the calculation
    of his income. While the figure of $144,500 is appropriate for Mr. Grays
    base pay, the figure of $25,000 should be added to account for his regular and
    predictable bonus. Mr. Grays annual income for the purpose of calculating
    support is $169,500.

[48]

The
    result of those inputs would be to set the range of spousal support under the
    SSAG at somewhere between $2,720 to $3,627 per month.

[49]

The
    duration of support is also an issue that ought to be contemplated under the
    SSAG.  For a 16 year marriage, with the incomes of these parties, the SSAG
    suggest support for a duration of 8 to 16 years from the date of separation,
    subject to variation and possibly review.  The motion judge declined to
    terminate spousal support, and instead granted an indefinite award, subject to
    review.  He noted that Ms. Gray continued to need support, based on her income
    and precarious health. I agree in this instance, that support ought to be
    indefinite, until a review occurs as a result of a material change in
    circumstance.

G.

Disposition

[50]

Mr.
    Grays income has increased since the time of separation.  This increase was
    facilitated in part by Ms. Gray having primary responsibility for the children
    following separation. Typically, an entitlement to compensatory and needs based
    support would result in an award at the high end of the SSAG ranges.  Despite
    the SSAG range, I would agree with Mr. Gray that it is not appropriate in this
    case to simply adopt and apply the SSAG to set spousal support. In this case,
    there are factors that should keep support towards the low end of the range.

[51]

First,
    Mr. Gray has responsibilities to his second family that must be considered in the
    overall context. Mr. Grays second wife is unemployed because Mr. Gray had to
    move to the United States to keep his job.

[52]

Second,
    in light of
Bracklow v. Bracklow,
Ms. Grays ill health necessitates
    extending the duration of spousal support beyond the time frame suggested by
    the SSAG, although I observe that

she has only received the spousal
    support to which she is entitled since the interim order of Herold J. in April
    2012.  Before that, she received only $800 per month of spousal support, an
    amount much lower than the amount to which she was entitled; she may not
    ultimately get spousal support for a longer period than is suggested by the
    SSAG
.

[53]

In
    setting the quantum of support, I am cognizant of the need to balance competing
    interests.  At his current income, Mr. Gray is well positioned to provide for
    his second family, while still paying support at the low end of the SSAG range
    to Ms. Gray.  This would not necessarily be the case if he had a more limited
    income. Another factor affecting Mr. Grays means is that he is paid in US
    dollars.  Counsel in this case did not suggest that his income should be
    adjusted for SSAG purposes, to reflect foreign currency.  In the absence of
    evidence, I would decline to make any adjustments to Mr. Gray on this basis,
    but I note that the exchange rate is currently in Mr. Grays favour. Nor is
    there any evidence to address the tax differences, but I infer that these do
    not prejudicially affect Mr. Gray.  It is also apparent that for years, the
    quantum of spousal support was lower than it otherwise would have been as a
    result of having given priority to child support, as contemplated by s.15.3 of
    the
Divorce Act
.

[54]

Taking
    all of the factors together, I would set spousal support at the monthly amount
    of $2,720, which is at the lowest end of the SSAG range, to be indexed annually
    in accordance with s. 34(5) of the
Family Law Act
. This figure will
    plainly require Ms. Gray to make some lifestyle choices.

[55]

The
    financial synergy enjoyed by Ms. Gray as a result of the receipt of ongoing
    child support was terminated when the motion judge ordered that child support
    for the two youngest children end on April 30, 2012. The obligation to pay
    spousal support in the amount of $2,720 will therefore be deemed to have
    commenced on May 1, 2012. Although the motion judge ended child support for the
    eldest two children in 2005 and 2007 respectively, I would decline to order spousal
    support arrears back to this time on the basis that it would cause hardship to
    Mr. Grays new family.  Any payments made pursuant to the interim spousal
    support order of Herold J., or the final order of the motion judge will be credited
    to Mr. Gray.  The calculation of spousal support arrears and child support overpayment
    as outlined in paragraphs 3, 4 and 5 of the motion judges final order, are not
    affected by this disposition.

[56]

The
    motion judge ordered a review of spousal support in August, 2016 regardless of
    whether there has been a material change in circumstances. I see no basis on
    which to adopt an approach in this case that would be different from the norm.
    Either party should be able to seek a variation if there is a material change
    in circumstances.  Examples of a change of circumstance could include a change
    in Mr. Grays employment or an inheritance by Ms. Gray that would affect her
    needs.

[57]

Consequently,
    I would allow the appeal and make the following changes to the Order:

·

Para 2(a) shall be amended to provide that the respondent, Mr.
    Gray, shall pay spousal support to Ms. Gray in the amount of $2,720 per month
    subject to indexing in accordance with s. 34(5) of the
Family Law Act
.

·

The payment of $2,720 per month in spousal support is effective
    as of May 1, 2012.  This means that Mr. Gray shall pay arrears in support for
    the months elapsed between May 1, 2012 and the release of this judgment
    (approximately 28 months).  Mr. Gray shall be given credit for any payments
    made after May 1, 2012 on account of the interim order of Herold J., or the
    final order of the motion judge.

·

Para 7 shall be deleted, so that either party can bring an
    application to vary this spousal support order if there is a material change in
    circumstances.

·

All other terms of the Order remain unchanged.

H.

Costs

[58]

I
    would order the costs of this appeal be paid by the respondent to the appellant
    in the amount of $15,000 all-inclusive, and reverse the $5,000 all-inclusive costs
    order below.



Released:  September 25, 2014  AH

P.
    Lauwers J.A.

I
    agree Alexandra Hoy, A.C.J.O

I
    agree E.E. Gillese J.A.


