



COURT OF APPEAL FOR ONTARIO

CITATION: Squires v. Crouch, 2016 ONCA 774

DATE: 20161024

DOCKET: C61246

Feldman, Epstein and Miller JJ.A.

BETWEEN

Timothy James Squires

Applicant (Appellant/

Respondent by way of cross-appeal)

and

Linda Christine Crouch

Respondent (Respondent/

Appellant by way of cross-appeal)



Kaitlin A. Jagersky, for the appellant/respondent by way
of cross-appeal

Esther L. Lenkinski and Alexandra M. Carr, for the
respondent/appellant by way of cross-appeal

Heard: September 27, 2016

On appeal from the order of Justice R. John Harper of the
Superior Court of Justice, dated October 2, 2015, with reasons reported at 2015
ONSC 6050.

ENDORSEMENT





[1]

The parties were both self-represented at their trial to determine a
number of financial issues consequent on their separation and divorce. They are
both now represented by counsel on this appeal. In oral argument counsel agreed
that if the court would rule on the disputed issues, counsel will use those
rulings to conduct the required calculations to arrive at the correct numbers
for child and spousal support and arrears.

1) Imputed Income of the Wife

[2]

The first issue is how much, if any, income ought to have been imputed
to the respondent for the years 2012, 2013 and 2014 for the purpose of
calculating support. Both sides agree that the amounts used by the trial judge
were based on a misapprehension of the evidence.

[3]

The trial judge recognized the respondents significant health problems
and attempts to retrain for her career during those years. He stated:

Linda has made appropriate efforts to jump start her career
given the roles she played in her marriage and the significant impact on her of
the marriage breakdown at a time when she was attempting to overcome
significant health challenges.

[4]

However, he then stated that he was accepting her counsels submission that
for support purposes, the amounts of $16,000 for 2012, $21,638.00 for 2013 and
$20,000 for 2014 should be imputed. This was an error as there was no counsel
and we are told no such submission was made.

[5]

The appellant asks the court to impute the minimum wage to her for those
years as she is a skilled and capable woman with many employment skills. The
respondent asks that the court impute no income to her during those years as
she was not working full-time, was overcoming her health challenges and took a
course to attempt to retrain in 2012.

[6]

In our view, the evidence supports the implicit finding of the trial
judge that the respondent was not deliberately underemployed during those
years. To the contrary, as he stated, she was trying to jump start her career
in the face of her significant health challenges. We therefore accept the
submission of the respondent that no income (other than her actual earnings) be
imputed to the respondent for the purposes of calculating support.

2) Level of Spousal Support

[7]

The trial judge awarded spousal support to the respondent in the amount
of $2092.00 per month for 2013, 2014 and 2015, stating that given the incomes
of the parties and the child residency scheme, the SSAG calculation would
suggest the mid-range for spousal and child support. However, we are told that
$2092 is in fact above the high range for spousal support.

[8]

The appellant submits that the court should reduce the amount to reflect
the actual mid-range. The respondent submits that the high range is appropriate
using the proper figures for income and taking account of all the
circumstances. She submits further that because there is a very significant
amount of arrears owing to the respondent by the appellant, the amount awarded
by the trial judge should be retained because it would then include an amount
toward those arrears.

[9]

We agree with the respondent that an amount at the high end of the range
is appropriate for spousal support, but we would reduce the amount to reflect
the SSAG calculation. While the trial judge suggested a mid-range for spousal
support was appropriate, he was relying on incorrect numbers in doing so. We
agree that the actual quantum the trial judge ordered more closely reflects the
appropriate amount of support than his comment that a mid-range was reasonable.

[10]

Although there may well be merit in including an amount for arrears,
that would require this court to go beyond correcting errors made and to
address the issue as a first instance trial court since the trial judge did not
address that issue and we decline to do so.

3) Extraordinary Expenses for Music Lessons (s. 7 Expenses)

[11]

The trial judge found that the respondent had paid for the childrens
music lessons and that the appellant was responsible for 75% of all
extraordinary expenses. The appellant submits that on the evidence, it was the
respondents mother who paid for the music lessons as a gift to her grandchildren.

[12]

We would not interfere with the finding of the trial judge. We are told
that the financial arrangements between the respondent and her mother suggested
the possibility of reimbursement. As the court held in
Lefebvre v. Gowan
,
2014 ONSC 6221, [2014] W.D.F.L. 4722, at para. 28, the fact that grandparents
help a separated child pay the expenses of the grandchildren does not in the
ordinary course absolve the other parent from financial responsibility.

4) Life Insurance and Medical Insurance

[13]

The parties dispute whether the life insurance issue was raised before
the trial judge. Nevertheless, the appellant has life insurance in place with
the respondent named as beneficiary. He is content to have that remain in place
and be included in the court order.

[14]

The appellant also has medical insurance through his employer. The trial
judge ordered that the appellant shall continue to cover the respondent for
extended health benefits through his employer, and that if such benefits are no
longer covered, the respondent may move to vary support. The respondent asks
that this court order that if the coverage is no longer available, the
appellant be required to replace it at his expense. We see no error in the
trial judges decision on this issue and no basis to interfere with it.





Conclusion

[15]

Based on counsels submissions, we understand that using the above
orders, they will be able to recalculate the amounts for spousal and child support
and arrears and draft the proper order.

[16]

As the respondent had the substantial success on the financial issues in
dispute, we award costs fixed in the amount of $15,000 inclusive of
disbursements and HST.



K. Feldman J.A.

Gloria Epstein J.A.

B.W. Miller J.A.


