



COURT OF APPEAL FOR ONTARIO

CITATION: Halliwell v. Halliwell, 2017 ONCA 349

DATE: 20170502

DOCKET: C61692

Gillese, Pepall and Roberts JJ.A.

BETWEEN

Toni Halliwell

Applicant (Respondent)

and

Martin Halliwell

Respondent (Appellant)

Paul Amey, for the appellant

Robert Bickle, for the respondent

Heard: October 17, 2016

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated January 8, 2016 and September 26, 2016,
    with reasons reported at 2016
    ONSC 182.

Gillese
    J.A
.:

OVERVIEW

[1]

By order dated January 8, 2016 and September 26, 2016
[1]
(the Order), pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3 (the
    FLA), Martin Halliwell (the appellant) was ordered to pay Toni Halliwell
    (the respondent):

1.

$3,047,061.47
for the
    equalization of net family property (net of credits for the advances already made)
    in equal annual installments, over five years,

with interest at three
    percent per annum;

2.
$28,978
per month for spousal support
    commencing January 1, 2016, based on imputed annual income of $1,000,000 for
    the appellant; and

3. arrears of retroactive spousal
    support in the amount of
$1,106,887.85
,
    reduced by 40% for income tax, payable by January 8, 2017.

[2]

The appellant challenges all three parts of the order.

[3]

For the reasons that follow, I would allow the appeal in part.

BACKGROUND IN BRIEF

[4]

The appellant and the respondent were married on June 18, 1983.  They
    separated on June 7, 2009, and were divorced on January 8, 2016.  Their
    marriage lasted 32 years.  They had two children: a son born in 1986 and a
    daughter born in 1988.

[5]

At the time of the trial, the appellant and respondent were aged 55 and
    54, respectively.  The parties two children were independent adults.

[6]

During the early years of their marriage, the parties lived in
    Newmarket.  The respondent, who did not have post-secondary education, worked
    at a bank and later as a real estate agent and part-time waitress.  The
    appellant, who had a degree in civil engineering, found employment as a works
    manager.

[7]

After the children were born, the respondent became their primary
    caregiver and took care of the household.  At one point, the appellant took a
    four-month leave of absence from work in order to accelerate the completion of
    his MBA, which he had been taking on a part-time basis.  During this time, the
    respondent supported her husband and the children by taking a job at a
    restaurant.  Later, the appellant began commuting to work for a construction
    firm in Mississauga.

[8]

In 1993, the appellant moved to Kitchener to work as President of a
    company.  The respondent and the children stayed back so that the children
    could finish the school year.  In August of 1994, the respondent and the
    children moved to Kitchener and joined the appellant.

[9]

In October 1994, the appellants employment was abruptly terminated. 
    Both the appellant and the respondent were devastated.  The respondent began working
    again as a real estate agent in 1994 and she continued with that work until
    2002.

[10]

In 1994, the appellant incorporated Halliwell Associates (HA),
    although it did not operate at that time.

[11]

In 1995, the appellant had surgery on his knee.  He was not mobile for
    approximately two months.  Following that, the parties became involved in
    various companies.

[12]

The parties had a very busy life but after the major setback when the
    appellant lost his job in 1994, as the trial judge found, they did not look
    back.  Their standard of living increased as the companies they owned and
    operated prospered. They enjoyed an affluent life style that included frequent travel
    abroad, a second home used for recreation, and many events and expenses that
    were paid for through the businesses.

[13]

When the parties separated in June of 2009, their daughter had already
    left home, but their son continued to live with the respondent in the matrimonial
    home.  The appellant moved to the parties recreational home, to which he made
    extensive renovations.  The parties son moved out of the matrimonial home by
    November 2011.  The respondent continued living in the matrimonial home.

[14]

After separation, the appellant started various new corporations and
    purchased a number of commercial and residential properties.

[15]

From the time the parties separated until October 2010, the respondent
    continued to receive about $11,500 per month, along with various benefits, as
    an administrator at the companies.  In October 2010, the appellant abruptly relieved
    her of most of her responsibilities for the businesses, changed the locks on
    the premises, and informed her that he no longer would allow her to work on the
    premises.  Her income from the companies dropped first to $7,000, then to
    $5,000 per month.

[16]

After these events, the respondent went to court to begin these
    proceedings (the Application).  Pursuant to a 2011 consent order, the
    appellant has since paid interim spousal support of $10,000 per month.  Pursuant
    to a court order, he also paid $135,000 as an advance equalization payment.

[17]

On the findings of the trial judge, the appellants lifestyle did not
    change much after separation.  He continued to enjoy golf memberships, travel
    extensively, and enjoy the use of corporate properties.  His personal assets
    increased.  In the year before trial, on his own evidence, he received $1.3
    million from his corporations, through salary, dividends or repayment of
    shareholder loans.

[18]

The trial judge found that the respondent, on the other hand, had to significantly
    adjust her lifestyle after separation.  She could no longer afford to travel,
    eat out, attend sporting events and concerts, or take vacations unless they were
    paid for by others.  Her major asset was the matrimonial home which, the record
    shows, was subject to lines of credit of approximately $300,000.  Approximately
    two-thirds of the debt owed on the lines of credit related to the appellants
    business expenses.

[19]

The trial judge also found that the respondent had acted responsibly in
    pursuing employment opportunities after separation.  She worked part-time in
    retail clothing sales and took a course in victim services that led to a
    volunteer position.  The respondent did not wish  and the trial judge found
    that it could not be expected of her  to renew her career in real estate.

[20]

The parties went to trial to determine issues of spousal support,
    retroactive spousal support, and equalization.  The value of the appellants
    businesses was a key issue for equalization purposes.

[21]

While there was no dispute that the respondent was entitled to spousal
    support, the quantum of that support was hotly contested.  The amount of the
    appellants income was critical to that determination.  Because of the
    complexity of the appellants involvement in various businesses, it was very difficult
    to determine the appellants income for support purposes.

[22]

The appellant owned 100% of the shares in HA.  HA owns shares in HC
    Matcon Inc. (Matcon), an Ontario corporation, and in HCM Contractors Inc.
    (HCM), an Alberta corporation.  At all material times, the appellant was the
    president of the corporations.

[23]

For the purposes of this appeal, there is no need to go through the
    various other companies in which the appellant held shares and/or operated.

[24]

Some further details about Matcon and HCM are, however, relevant.  A man
    named Ron Amos, or his holding companies, had a shareholder interest in Matcon
    and HCM equal to that of HA.  In addition, HA held a minority shareholder
    interest in RWH Engineering (RWH).

[25]

The appellants income was generally earned from the operations of
    Matcon and HCM, which paid consulting fees and dividends to HA. Dividends to HA
    were converted to shareholder loans. In turn, HA paid management fees and
    dividends to the appellant.

[26]

At the time of trial, HA held the following minority shareholder
    interests:

Matcon    44%;

HCM       39.9%;
    and

RWH       30%.

[27]

At trial, the appellants expert on the value of the companies was Mr.
    Ross.  The respondents expert was Mr. Sciannella.

THE TRIAL DECISION

[28]

The parties evidence about their respective roles in the business
    ventures conflicted.  The trial judge found that the businesses were not joint
    family ventures.  He found that the respondent did some administrative and
    bookkeeping work for the companies for which she was compensated.  He further
    found that she was limited in what she could do because of the extensive role she
    played in caring for the two children, in managing their active extracurricular
    schedules, and in managing the household in general.

[29]

In the trial judges view, an equitable sharing of the economic
    consequences of the marriage could and should be achieved through the proper
    calculation of the equalization payment under the FLA, and an order for spousal
    support characterized by both compensatory and needs based within the context
    of their standard of living.

The Value of the Companies and Equalization

[30]

The trial judge identified four main differences in the expert
    valuators approaches to valuation:

1.  their
    approach (capitalized cash flow versus EBITDA
[2]
);

2.  their
    choice of multiple;

3.  their
    treatment of the White Mud project; and

4.  the
    appellants experts deduction of $1.6 million in the 2008 income.

[31]

The trial judge identified the main operating companies as Matcon and
    HCM. He noted that the values that the two experts had applied to the
    appellants other companies were similar so it was not necessary to spend time
    on that analysis.  He also noted that the largest difference between the two experts
    was in the values each placed on HCM.

[32]

The trial judge gave extensive reasons for preferring Mr. Sciannellas
    approach to the valuation of Matcon and HCM over that of Mr. Ross.  Those reasons
    included:

1. the capitalization rate
    that Mr. Sciannella applied was more appropriate;

2. Mr. Ross relied on
    comparables that were not proper comparables.  He compared Matcon and HCM with public
    companies that were substantially larger, with gross income levels far in
    excess of those of Matcom and HCM. Further, they did not do similar work to
    that of Matcon and HCM;

3. finding that Mr. Ross
    choice of a multiple could not be justified on the evidence before the court;
    and,

4. Mr. Sciannellas analysis was
    far more reasonable relative to the length of time a potential investor would look
    to in order to get a return on investment. Mr. Sciannella chose of a period of
    approximately two years, whereas Mr. Ross chose a period of two to four months.
    The trial judge found that, by choosing an unreasonable period, Mr. Ross had
    artificially lowered the value of the companies.

[33]

The trial judge explained that it was not reasonable to use very
    different multiples for Matcon and HCM, as the appellants expert had, because
    the two companies are in the same business, have the same management team and
    expertise, and use the same engineers.  Matcon had developed the expertise and
    infrastructure and transferred that to the benefit of HCM.  Further, there was
    no start-up period for HCM because it was able to use Matcons experience and
    infrastructure.  The trial judge also noted that in its first year, HCM had
    sales of over $15 million.

[34]

When Mr. Ross calculated HCMs value using the same multiple as that
    which he used for Matcon, he arrived at a figure of $2.5 million. That figure
    was very close to Mr. Sciannellas value for HCM of between $2.6 and $2.8
    million.

[35]

The trial judge accepted Mr. Sciannellas opinion of the value of HCM,
    subject to making a necessary adjustment for the White Mud project. In his
    view, Mr. Sciannella improperly included a significant sum of money that HCM
    received for the White Mud project in 2013. The work had been completed in or
    about 2008.  At the time of separation, there was only litigation that had been
    initiated by HCM, a process that took over four years. Although HCM was
    ultimately successful, there was no evidence before the court as to the
    reasonableness of success at the time of separation. The trial judge said that
    it was not proper to use hindsight to determine value. In his view, the White
    Mud income that was eventually received could not be used to determine future
    maintainable cash flow.

[36]

With the necessary modifications, the trial judge found that HCM had a
    low value of $2.35 million and a high value of $2.5 million. The resulting
    adjustment to HA led to a low value of $5.7 million and a high value of $5.9
    million. Considering the contingencies the trial judge had alluded to, relative
    to capitalization and changes in the market, for net family property (NFP) purposes,
    he used the low value for each value and for the notional tax.

[37]

The trial judge then explained why he would not use Mr. Ross tax
    calculations. He accepted the tax calculations provided by the respondent.

[38]

The trial judge found that the appellants NFP was $6,491,129.11 and the
    respondents NFP was $555,375.50.

Spousal Support

[39]

The trial judge began by setting out the legal principles underlying
    spousal support in
Moge v. Moge
, [1992] 3 S.C.R. 813. He also noted the
    factors and objectives that he had to consider in determining spousal support, according
    to the
Divorce Act
, R.S.C. 1985 c. 3 (2
nd
Supp.).

[40]

He referred to the Spousal Support Advisory Guidelines (Ottawa:  Department
    of Justice, 2008) (SSAGs) for the proposition that applying these principles
    is highly individual and discretionary.

[41]

He concluded this section of his reasons by stating that he next had to
    determine a fair and reasonable level of income for the appellant, given the
    fairly complex labyrinth of corporate structure that [the appellant] has
    created.

The Appellants Income

[42]

In assessing the amount of the appellants income potentially available
    for support, the trial judge began by referring to s. 16 of the
Child
    Support Guidelines
, O. Reg. 391/97 (CSGs) for the general rule that
    income is determined using the sources of income set out under the heading
    Total income in the T1 General form issued by the Canada Revenue Agency
    (line 150 income):

16. Subject to sections 17 to 20, a parents or spouses annual
    income is determined using the sources of income set out under the heading
    Total income in the T1 General form issued by the Canada Revenue Agency and
    is adjusted in accordance with Schedule III.

[43]

The trial judge then invoked ss.17(1) and (2) and s.19 of the CSGs to
    consider the appellants income over the previous three years and to impute
    income in order to arrive at a fair assessment of the appellants actual
    available income.

[44]

The trial judge relied upon s. 19(1)(g) of the CSGs for the power to
    impute income to a spouse who unreasonably deducts expenses from income. The
    trial judge acknowledged that a corporations retained earnings are not
    necessarily money that the shareholder can take out as income. He addressed
    this point in some detail, noting that a failure to appreciate it might undermine
    the operation of the corporation and that corporations have legitimate business
    reasons to accumulate retained earnings.

[45]

However, the trial judge noted, taking money out of a company is a
    matter of choice made by the directors and shareholders and the court must look
    at those choices, in determining income for support purposes, with a discerning
    eye that balances factors that include sometimes complicated considerations of
    business viability with a payors duty to maximize available income for support
    purposes.

[46]

With respect to business viability, the court must look at such things
    as company banking covenants, economic upturns and downturns, the degree of
    capitalization that a particular company requires, and future growth. He noted
    that the experts agree that there is often a significant element of
    subjectivity when determining the impact of these considerations on either
    income analysis or the valuation of the company.

[47]

Both parties presented expert analyses of the appellants income. The
    following chart summarizes the experts positions and the trial judges
    determination of the appellants average income for the three-year period prior
    to trial.

The Appellants Average Annual Income in the Last Three Years



Appellants Expert:

Mr. Ross

Respondents Expert:

Mr. Sciannella

Trial Judges Determination



$882,730
per annum

$1,251,156.67
per annum

$1,000,925.34
per annum



Analysis
: only attributed income to HA from the companies of which the
          appellant was a majority shareholder

Analysis
:

attributed income from all of the companies, including the
          non-majority operating companies, to HA, then attributed its income to the
          appellant

Analysis
: accepted the respondents calculation, including income from
          non-majority companies, but reduced the respondents figure by
20%
to
          account for, among other things:  the appellants lack of majority
          shareholding in some of the companies; Mr. Amos shareholder loans; required
          capital expenditures; banking covenants; and future growth.



Exclusions
: $1.6 million in dividends from Matcon due to a restructuring in 2012 as
          it was non-recurring



Exclusions
: rejected the appellants exclusion of the non-recurring dividends



HCM
:
          its operations are subject to the boom and bust of the oil and gas industry



HCM
:
          agreed with the appellant that it was subject to boom and bust cycles



[48]

The trial judge did not agree with the appellants expert that for the
    purpose of income analysis, the $1,600,000 of dividends paid in 2012 should be
    treated as a one-time non-recurring capital payment and therefore excluded from
    available income. He also rejected the submission that the income from only
    some of the companies in which the appellant had an interest should be
    considered.

[49]

Both experts agreed that there was significant income available in 2012
    and 2013. The trial judge accepted most of the respondents experts
    assessments about income but agreed with the appellants expert that a
    realistic amount to fund future capital expenditures would be higher than the
    20% allowed for by the respondents expert. Accordingly, he reduced the
    respondents experts assessment by an additional 20% to reflect what he saw as
    a more reasonable retention of corporate income having regard to capitalization
    requirements, the appellants minority shareholding positions and economic
    variables.

[50]

He assessed the appellants income as follows:

2009  -  $882,209.60

2010  -  $366,450.40

2011  -  $462,431.20

2012  -  $602,661.60

2013  -  $1,819,607.20

[51]

The trial judge found that the average over the last three years (i.e.
    2013-15) was $1,000,925.34, taking into account the respondents experts
    assessment, discounted by a further 20%.

Income over $350K

[52]

The trial judge noted that for a payor spouse with an income above the
    SSAGs ceiling of $350,000: the ceiling does not operate as a hard cap; the
    formulas give way to discretion; the analysis is fact-specific; and the SSAGs
    ranges remain relevant. He quoted from jurisprudence which says that in
    balancing the factors in a long-term marriage, where the payors income is
    above $350,000, the SSAGs recommendation is that the payment of spousal support
    range between 37.5% and 50% of the gross income difference between the spouses.

Application of the SSAGs Formula

[53]

Based on the amounts the trial judge determined to be the appellants income,
    and imputing no income to the respondent, the SSAGs formula generates a
    mid-range support figure of $35,052 per month and a low-end figure of $30,028
    per month. The trial judge noted that the lower figure of $30,028 would result
    in a net disposable income to the respondent of 36% (leaving the appellant with
    64%).

[54]

The trial judge ordered $30,028 per month payable retroactive to the
    date of the Application. The trial judge imputed employment income of $35,000
    per year to the respondent with a start date of January 1, 2016. As of that
    date, he reduced the quantum of spousal support to $28,978 per month, amounting
    to what he said was 38.1% of the net disposable income.

[55]

The trial judge noted the appellants submission that he would receive
    $1.2 million in net taxable capital gains (of which $321,000 would be refunded
    to HA) at age 65. He did not give details of the respondents tax calculations
    but preferred the respondents view that the appellant would continue his
    investments to take advantage of tax planning opportunities.

The Double Recovery Issue

[56]

The trial judge noted the general rule against double recovery, an issue
    that arises most often when a pension has been equalized. In
Boston v.
    Boston
, 2001 SCC 43, [2001] 2 S.C.R. 413, the Supreme Court held, at para.
    64, To avoid double recovery, the court should, where practicable, focus on
    that portion of the payors income and assets that have not been part of the
    equalization or division of matrimonial assets when the payee spouses
    continuing need for support is shown. In
Boston
, that meant focussing
    on the portion of the pension that was earned following the date of separation
    and, as such, was not included in the equalization of NFP that had already
    occurred.

[57]

This was not a case in which a pension had been equalized. The trial
    judge distinguished a pension from business assets that continue to produce
    income without devaluing the assets themselves. This is particularly true with
    after-acquired capital assets that continue to produce income. The pension
    analogy does not apply to cases in which the payor would not have to liquidate assets
    to pay ongoing support. The trial judge held that it was not proper to consider
    double recovery when dealing with assets that are not liquidating assets or
    special assets of the nature of a pension.

[58]

In his view, there was no double recovery in this case.

THE ISSUES

[59]

The appellant submits that the trial judge erred in his determination of
    equalization in:

1.  his acceptance of a
    similar multiple for HCM as Matcon in assessing the income approach to its
    value; and

2. valuing the various assets
    in accordance with the respondents position without any explanation.

[60]

The appellant submits that the trial judge erred in his determination of
    the quantum of spousal support in:

3. imputing
    income to him of $1 million per year;

4. his application of the
    SSAGs to the extent that the appellants income exceeded its $350,000 ceiling;

5. taking the three-year
    average unadjusted for one extraordinary year (2013); and

6. failing to apply the
    principle of double dipping to the appellants business income, having regard
    to the equalization payment derived from the business.

[61]

As I find that the trial judge did err in principle in his determination
    of the quantum of spousal support, the quantum of spousal support becomes a
    further issue to be decided.

ANALYSIS

TWO PRELIMINARY MATTERS

[62]

Before turning to these issues, two preliminary matters warrant comment:
    (1) the trial judges analysis relating to joint family venture; and (2) the
    appellants complaint about several of the trial judges findings of fact.

1. Joint Family Venture

[63]

The trial judge ultimately resolved the financial issues that divided
    the parties based on the provisions of the FLA.  In my view, he was correct in
    so doing.

[64]

However, before turning to those provisions, the trial judge first
    determined whether the businesses amounted to a joint family venture, as that
    term is used in
Kerr v. Baranow
, 2010 SCC 10, [2011] 1 S.C.R. 269. In
Kerr
    v. Baranow
, the Supreme Court used the concept of joint family venture to
    quantify a monetary award to remedy unjust enrichment arising from the separation
    of non-married couples who do not enjoy the protective provisions of Part 1 of the
FLA
.

[65]

The trial judge recognized that
Kerr v. Baranow

was
    decided within the context of common-law relationships.  He also knew that, in
    the present case, the parties had been married. Nonetheless, he understood that
    this courts decision in
Martin v. Sansome
, 2014 ONCA 14, 118 O.R.
    (3d) 522, mandates that such an approach be followed for married couples, as
    well as those in common-law relationships. At para. 44 of his reasons, the
    trial judge states, the first step must be the determination of whether or not
    the elements of a joint family venture exist and then determine whether or not
    there is fair compensation after reviewing the calculations in accordance with
    the scheme set out in the FLA for equalization of property.

[66]

In my view, the trial judge erred by beginning his analysis with the
    question of joint family venture. He should simply have had recourse to the FLA.
    This courts decision in
Martin
does not suggest otherwise.

[67]

In
Martin
, the trial judge concluded that the farm business was
    a joint family venture and awarded the wife a constructive trust interest in it.
    This court set aside the trial judges determination and replaced it with a
    calculation of the wifes entitlement under the equalization provisions of the
    FLA.

[68]

At para. 63 of
Martin
, Hoy A.C.J.O., writing for the court, explains
    that s. 5(7) of the FLA makes it clear that the express purpose of the FLA equalization
    provisions is to address the unjust enrichment that would otherwise arise on
    marriage breakdown.

[69]

She then refers to para. 66 of
McNamee v. McNamee
, 2011 ONCA
    533, 106 O.R. (3d) 401, in which this court stated that, in the vast majority
    of cases, any unjust enrichment that arises as the result of a marriage will be
    fully addressed through the operation of the equalization provisions under the
    [FLA].

[70]

At para. 66 of
Martin
,
Hoy A.C.J.O. concludes,

if unjust enrichment as the result of a marriage has been
    found, and it has been determined that monetary damages can suffice, the
    aggrieved partys entitlement under the equalization provisions of the FLA
    should first be calculated.

[71]

For these reasons, it was an error for the trial judge to begin his analysis
    by considering the possible existence of a joint family venture. For married
    couples, application of the FLA equalization provisions is the starting point
    for addressing inequities arising from marriage breakdown.

2. Impugned Findings of Fact

[72]

The appellant takes issue with several of the trial judges findings,
    including that: the appellants credibility fell when he failed to disclose
    certain companies and property during his direct examination and to his own
    valuation expert before the trial began; post-separation, the appellant
    continued to enjoy a lavish lifestyle; and, the appellants attitude
    post-separation was that he alone could dictate his wifes lifestyle during
    separation.

[73]

It is trite law that this court owes deference to a trial judges
    factual findings and is not to disturb them absent palpable and overriding
    error. Despite having questioned the validity of these findings, at para. 124
    of his factum, the appellant states that the findings were not relevant to any
    of the issues decided on the Application below. In light of that concession,
    such findings cannot be overriding.

An
overriding
error is an error
    that is sufficiently significant to vitiate the challenged finding of
    fact.  The appellant must demonstrate that the error goes to the root of
    the challenged finding of fact such that the fact cannot safely stand in the
    face of that error:
Waxman v. Waxman

(2004),
44 B.L.R. (3d) 165 (Ont. C.A.), at para. 297,
citing
Schwartz
    v. Canada
,
[1996] 1 S.C.R. 254,
at p. 281
.  Consequently, nothing more need be said
    about the impugned findings.

ISSUE 1:     DID
    THE TRIAL JUDGE ERR IN HIS DETERMINATION OF EQUALIZATION?

[74]

The appellant takes issue with the equalization order based on two
    alleged errors. First, he says that it was unreasonable for the trial judge to
    have used a similar multiple for HCM as for Matcon when assessing HCMs value.
    Second, he says that the trial judge erred by valuing the various assets in
    accordance with the respondents position without any explanation.

[75]

I do not agree.

1.

Using a Similar
    Multiple

[76]

The appellants complaint that it was unreasonable for the trial judge
    to have used a similar multiple for HCM as for Matcon is simply not borne out.

[77]

The trial judge rejected Mr. Ross choice of a multiple because it could
    not be justified on the evidence before the court. The trial judge found that Mr.
    Ross had not provided a reasonable explanation for the multiple that he chose. He
    noted that Mr. Ross chose a multiple based on companies which the trial judge
    resoundingly rejected as being comparable to Matcon and HCM. I will not repeat
    the reasons given by the trial judge on that matter. Suffice to say, the
    so-called comparables were public companies, substantially larger than HCM and
    Matcon, and that they perform different work than HCM and Matcon, which are
    very specialized excavating shoring operations.

[78]

Further, as the trial judge explained at paras. 52-53 of his reasons, it
    was not reasonable to use very different multiples for HCM and Matcon, as Mr.
    Ross did in his valuation. Matcon and HCM were in the same business, had the
    same management team and expertise, and used the same engineers. Matcon
    developed the experience, expertise and infrastructure and transferred all of that
    to the benefit of HCM, with the result that there was no start-up period for
    HCM. This is borne out, as the trial judge noted, by the fact that in its first
    year, HCM had sales of over $15 million.

[79]

Far from being unreasonable, the trial judges reasons for using a
    similar multiple for HCM as for Matcon are compelling.

2.

Valuing Assets

[80]

The appellant also complains that the trial judge erred by valuing
    various assets based on the respondents position without explanation.

[81]

Again, this complaint is unfounded. It is essentially an attack on the
    trial judges acceptance of the respondents expert valuation and his rejection
    of the valuation prepared by the appellants expert. This was not, as the
    appellant contends, a situation in which the trial judge faced conflicting
    evidence and merely adopted the position of the respondent without explanation.
    The trial judge gave compelling reasons for preferring Mr. Sciannellas
    valuation of the assets and for rejecting that of Mr. Ross.

[82]

I begin by noting, as the trial judge did at para. 47 of his reasons, that
    the values given by the two experts in respect of all of the companies except
    HCM and Matcon were similar. In light of that, there can be no quarrel with the
    values attributed to the companies apart from HMC and Matcon.

[83]

The biggest difference between the experts was in respect of the value each
    placed on HCM. I will not repeat the explanation I have just given as to why the
    trial judge valued HCM using a similar multiple as for Matcon.

[84]

Moreover, the trial judge gave reasons for rejecting the EBITDA approach
    that Mr. Ross had followed, explaining that it was not reliable. As discussed
    above, the trial judge also rejected Mr. Ross reliance on what he had offered
    as comparables. Again, I will not repeat the many convincing reasons given by
    the trial judge for why the comparables were not, in fact, comparable to HCM
    and Matcon. In addition to rejecting the capitalization rate that Mr. Ross used
    and accepting that which Mr. Sciannella had used because it was more
    appropriate, the trial judge found that Mr. Sciannella had chosen a far more
    reasonable length of time of two years as the period that a potential investor
    would look to in order to get a return on investment. Mr. Ross had chosen a substantially
    lower period, approaching as few as two months, which the trial judge found was
    not only unreasonable but also resulted in an artificial lowering of the value
    of the companies.

[85]

I would simply conclude by noting that the trial judge did not blindly
    adopt Mr. Sciannellas approach.  In this regard, it will be recalled that the
    trial judge found that Mr. Sciannellas value of HCM improperly included, in
    his calculation of maintainable cash flow, a significant amount of money that
    HCM received for the White Mud project. He deducted the White Mud cash from the
    calculation of value.

[86]

Accordingly, I would dismiss the appeal as against the equalization
    order.

ISSUE 2:     DID
    THE TRIAL JUDGE ERR IN THE SPOUSAL SUPPORT AWARD?

[87]

The appellant contests virtually every aspect of the trial judges
    approach to determining the quantum of spousal support. Before turning to the
    specific issues that he raises, it is important to recall the standard of
    appellate review on support issues and the relevant provisions for determining
    income for spousal support purposes.

1. Standard of Review

[88]

The standard of review on all matters relating to support is highly
    deferential.  Appellate courts should not interfere with support orders unless
    the reasons disclose an error in principle, a significant misapprehension of
    the evidence, or the award is clearly wrong:
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
    at paras. 11-12.

[89]

In this case, it is undisputed that the respondent is entitled to
    continuing spousal support. The dispute between the parties is limited to the
    assessment of the quantum of that support. Specifically, the dispute turns on
    what is a fair assessment of the appellants means for the purposes of support,
    the proper approach to quantifying the amount of support based on those means,
    and a fair assessment of the respondents means.

2. The Relevant Provisions for Determining
    Income

[90]

The starting point for determining income under the SSAGs is the
    definition of income under the
Federal Child Support Guidelines
(SSAGs,
    s. 3.3.2). Those guidelines and the CSGs are virtually identical: see
Mason v. Mason
,
    2016 ONCA 725, 132 O.R. (3d) 641, at para. 53.

[91]

Section 16 of the CSGs sets out the general rule that income is
    determined using the sources of income set out under the heading Total income
    in the T1 General form issued by the Canada Revenue Agency (line 150 income):

16. Subject to sections 17 to 20, a parents or spouses annual
    income is determined using the sources of income set out under the heading
    Total income in the T1 General form issued by the Canada Revenue Agency and
    is adjusted in accordance with Schedule III.

[92]

Sections 17 and 18 permit a court to depart from line 150 income where
    the court is of the opinion that the determination of the spouses line 150
    income would not be the fairest determination of income.

[93]


Section
    17(1) allows a court to consider patterns or fluctuations in a spouses income
    over the last three years:

17. (1) If the court is of the opinion that the determination
    of a  spouses annual income under section 16 would not be the fairest
    determination of that income, the court may have regard to the  spouses
    income over the last three years and determine an amount that is fair and
    reasonable in light of any pattern of income, fluctuation in income or receipt
    of a non-recurring amount during those years.

[94]

Section 18 allows the court to add all or part of the pre-tax corporate
    income for the most recent taxation year to a corporation of which a spouse is
    a shareholder to that spouses income:

18. (1) Where a  spouse is a shareholder, director
    or officer of a corporation and the court is of the opinion that the amount of
    the  spouses annual income as determined under section 16 does not fairly
    reflect all the money available to the  spouse for the payment of child
    support, the court may consider the situations described in section 17 and determine
    the  spouses annual income to include,

(a) all or part of the pre-tax income of the
    corporation, and of any corporation that is related to that corporation, for
    the most recent taxation year.

[95]

Section 19 addresses imputing income to a spouse and sets out a
    non-exhaustive list of circumstances in which income may be imputed:

19. (1) the court may impute such amount of income
    to a spouse as it considers appropriate in the circumstances, which
    circumstances include,

(g) the spouse unreasonably deducts expenses from
    income.

3. The Amount of Income Imputed to
    the Appellant

[96]

The appellant argues that the trial judge unreasonably imputed income to
    him of $1,000,000 for each of 2014 and 2015 because the trial judge failed to
    explain how he applied certain factors and because, while appearing to
    acknowledge other constraints (e.g. banking covenants, cash flow, the cyclical
    nature of HCMs business), he failed to give any express weight to any of
    these or other factors. He says that it was unreasonable for the trial judge to
    have relied on the respondents experts evidence in light of:

1.

the respondents
    experts assumption that the appellant had significant influence or control
    over distribution of retained earnings without regard to the wishes of the
    majority shareholders;

2.

the fact that the
    respondents experts approach would place both operating companies in breach
    of their banking covenants yearly (except for HCM in 2013);

3.

the respondents
    experts significant understatement of the cost to replace capital equipment
    when compared with actual expenditures; and

4.

the evidence of
    historic, negative bank balances for the companies that had drawn down into
    their line of credit.

[97]

The appellant further contends that it was an error in principle to
    apply an entirely subjective and arbitrary 20% global reduction to the
    respondents experts income estimate and to fail to give weight to
    uncontradicted evidence of other significant factors limiting the money
    actually available.

[98]

I would not give effect to this ground of appeal. In essence, the
    appellant is attempting to reargue, on appeal, his position at trial. The
    expert evidence that the appellant put forward at trial emphasized the various
    factors he now relies upon in support of his contention that less money should
    be imputed to him. The trial judge rejected that expert evidence, which he was
    entitled to do.

[99]

Where the court considers that s. 16 income (line 150 income) under the CSGs
    does not provide the fairest determination of income, s. 17 of the CSGs allows
    the court to consider the pattern of income of the payor over the last three
    years.  Section 19(1)(g) of the CSGs permits the court to impute such amount
    of income to a parent or spouse as it considers appropriate where the parent
    or spouse unreasonably deducts expenses from income. As the trial judge noted,
    s. 19(1)(g) does not require establishing that the spouse acted improperly or
    outside the norm in deducting expenses. Such deductions may be permissible from
    a tax perspective.

[100]

There was ample
    evidence at trial that the appellant had personal expenses that were paid by his
    businesses, including for vehicles, travel, renovations to his property, credit
    cards, and legal fees.  There is no question that the trial judge was entitled
    to impute some additional income to the appellant pursuant to s. 19(1)(g).  The
    only question was how much.

[101]

The trial judge
    preferred much of the respondents experts evidence and gave reasons for that
    preference. He explained that the major difference between the two experts
    approaches to income analysis was that the respondents expert attributed
    income from each of the companies to HA and then attributed the income from HA to
    the appellant. The appellants expert, on the other hand, attributed income to
    the appellant only from a subset of the companies  he did not attribute any
    income from Matcon, HCM or RWH. As the appellants expert put it, he attributed
    income only from majority companies. The trial judge rejected this approach.

[102]

The trial judge
    accepted the respondents experts evidence that the businesses were profitable
    and growing  Matcon and HCM had increased in value significantly since
    separation. He also noted that the appellant was able to continue to fund an
    extravagant lifestyle and had sufficient monies to purchase additional
    properties within his corporations and to expand his new business ventures.

[103]

The trial judge
    noted that both experts agreed that there was significant income available in
    2012 and 2013 and that the appellant himself gave evidence that he had access
    to $1.3 million in 2013. He found that evidence to be more consistent with the
    respondents expert opinion as expressed in his evidence and his report.

[104]

And, while the
    trial judge accepted most of the respondents experts assumptions, he took the
    appellants experts point that more money should be allowed for capital
    requirements and growth in a competitive and fluctuating market. To this end,
    he applied a discount of 20% to the respondents experts estimate and arrived
    at a number that was squarely between the two experts assessments.

[105]

In my view, the
    trial judges approach to imputing income cannot be faulted.

4. Application of the SSAGs formula to
    income above the ceiling

[106]

The appellant
    contests the trial judges use of the SSAGs formula to fix a spousal support
    amount of $29,000-30,000 per month based on his imputed income of $1,000,000.
    He argues that while the trial judge recognized that for income above $350,000,
    an individualized, fact-specific analysis is required, he failed to undertake
    such an analysis.

[107]

I agree. An
    individualized, fact-specific analysis requires a consideration of the effects
    of the equalization payment. The trial judge failed to fully consider the effects
    of the equalization payment, beginning with the question of entitlement.  In so
    doing, he erred in principle.

Entitlement

[108]

The application
    of the SSAGs formulas, whether under or above the ceiling, requires a
    preliminary consideration of entitlement. The entitlement question then informs
    the approach to be taken in applying the SSAGs.

[109]

As stated at s. 3.2.2.
    of the SSAGs:

The Advisory Guidelines do
not
deal with entitlement.  
    The Advisory Guidelines were drafted on the assumption that the current law of
    spousal support, post-
Bracklow
, continues to offer a very expansive
    basis for entitlement to spousal support.  Effectively any significant income
    disparity generates an entitlement to some support, leaving amount and duration
    as the main issues to be determined in spousal support cases.  The basis of
    entitlement is important, not only as a threshold issue, but also to determine
    location within the formula ranges or to justify departure from the ranges as
    an exception. [Emphasis in original.]

[110]

It is important
    to note that s. 3.2.2 recognizes that entitlement plays two different important
    roles in determining spousal support. First, entitlement is a threshold issue.
    Second, entitlement determines location within the formula ranges or to justify
    departure from the ranges.

Entitlement  the Threshold Question

[111]

In the present
    case, the trial judge addressed entitlement as a threshold issue at para. 45 of
    his reasons. After concluding that the businesses did not qualify as joint
    family ventures, the trial judge stated:

An equitable sharing of the economic consequences of this long
    term marriage should be achieved in this case.  I am of the view that such an
    equitable distribution can be achieved by the proper calculation of the
    equalization payment and by an order of spousal support characterized by both
    compensatory and needs based within the context of their standard of living.

[112]

Reading this
    paragraph in conjunction with the balance of the trial judges reasons, it is
    clear that he addressed the threshold question of entitlement and concluded
    that despite the sizeable equalization payment, the respondent was entitled to
    spousal support.

[113]

Residual
    entitlement to spousal support in this case could be compensatory,
    non-compensatory or some combination of the two (there was no issue of
    contractual entitlement here):
Bracklow v. Bracklow
, [1999] 1 S.C.R.
    420, at para. 49.

[114]

On the findings
    of the trial judge, I understand him to have determined that entitlement to a
    spousal support order, in addition to the equalization order, was both
    compensatory and non-compensatory. The trial judge found that the respondent
    had a strong claim to compensation based on the role she played in the marriage
    and in supporting the appellants advancement. They were equal partners he
    pursuing his business and she managing the home and the businesses thrived. She
    was clearly entitled to share in that success after the marriage was over, not
    just through equalization but also by means of spousal support. The trial judge
    also found that: the appellant had the means to pay spousal support; the
    respondents lifestyle had significantly decreased after separation; and, there
    was a great disparity in the standards of living that each enjoyed
    post-separation.

Entitlement Application of the SSAGs Formula

[115]

However, as I
    have noted, entitlement considerations must also inform the application of the
    SSAGs formula. The trial judge did not do this. After quoting relevant case law
    and legislative provisions about entitlement to spousal support, the trial
    judge determined the appellants imputed income. He addressed certain issues
    raised by the parties  such as double dipping  but he undertook no analysis
    of entitlement in this section of his reasons. After acknowledging the
    existence of the $350,000 ceiling, the trial judge chose to apply the SSAGs
    formula based on the full amount of the appellants imputed income.

[116]

The effects of the
    equalization payment had to inform the trial judges approach to income levels in
    this case.  Above the $350,000 ceiling, an additional formula range is created:
    appropriate income inputs range anywhere from $350,000 to the full income
    amount. Entitlement is important to determine location within that range.

[117]

The SSAGs
    provide at s.11.1 that after the payors gross income reaches the ceiling of
    $350,000, the formulas can no longer be applied automatically.  At the same
    time, they make clear that $350,000 is not a cap and spousal support can, and
    often will, increase for income above that ceiling. The SSAGs provide the
    following example at s. 11.3:

If the payor earned more, say $500,000, a court could leave
    spousal support in that same range [the one for $350,000] or, in its
    discretion, a court might go higher, but no formula would push the court or the
    parties to do so and it would be an individualized decision.  If the formula
    were to be applied for an income of $500,000, the support would rise to $15,625
    to $20,833monthly.  Or the court or the parties might settle upon an amount
    somewhere in between these two ranges.  These are large numbers for support in
    this case, but keep in mind that this is the very top end of the formula, with
    a long marriage, a high payor income and no income for the recipient.

[118]

I note that the
    SSAGs example uses an income of $500,000, half the amount attributed to the
    payor in this case, and still suggests that spousal support might be left in
    the same range as for an income of $350,000.

[119]

In a recent
    decision of this court,
Slongo v. Slongo
, 2017 ONCA 272, this court did
    apply the SSAGs formula to the full amount of a payors income that exceeded
    $350,000. However, it is important to appreciate the facts in
Slongo
. In
    that case, the payor husband resigned from his employment and elected to
    receive the commuted value of his pension, totalling $1.9 million, payable in
    six installments. Soon afterwards, the husband began working as a consultant
    for his former employer. As I have noted, this court held that the SSAGs
    formula should apply, based on the full amount that the payor was to receive. However,
    at para. 134 of the reasons, the court explains, Given the lump-sum nature of
    this pension payout, intended to compensate the husband for what would
    otherwise have been smaller annual payments, it seems appropriate here for the
    wife to benefit from the application of the formula to the full amount.

[120]

As stated at s. 11.3
    of the SSAGs, What is clear is that the larger stakes at these income levels
    [above $350,000] and the complexities of the individual cases mean that the
    Advisory Guidelines will have less significance to the outcomes above the
    ceiling, whether negotiated or litigated.

[121]

The presence of
    a ceiling is also meant to address circumstances of high property awards. At s.
    12.6.2, the SSAGs state that the Advisory Guidelines can already accommodate
    these high property concerns since many high property cases are also
    high-income cases, bringing into play the ceiling above which the formula will
    not necessarily apply.

[122]

Thus, while the
    trial judge was fully justified in making an award of spousal support that was
    both compensatory and non-compensatory, in setting the quantum, he needed to
    take into consideration the fact that the equalization payment went some
    considerable distance towards satisfying both bases for the award. As he did
    not, in my view, the use of the full $1,000,000 as an income input  in other
    words, the choice of an income input at the highest point within the suggested income
    range  was an error in principle. I will say more about this below, when
    determining an appropriate spousal support order.

5. Taking the Three-Year Average

[123]

In the
    appellants view, the trial judges application of a three-year average to
    produce an annual income of $1,000,000 unfairly overstated his income. As
    articulated by his expert, there was a single lucrative contract in 2013 that
    resulted in non-recurring income of $1,600,000. The appellant says that including
    this amount in the average resulted in unfairness.

[124]

I would not
    agree.

[125]

Section 17(1) of
    the CSGs allows a court to consider patterns or fluctuations in a spouses
    income over the last three years. Where the spouse is a corporate shareholder,
    s. 18(1)(a) permits the court to consider whether all or part of the pre-tax
    income of the corporation should be included in the spouses annual income. In
Mason
,
    at paras. 159-169, this court held that the three-year review of a spouses
    income is not limited to line 150 income but can also capture corporate income.

[126]

Since it was
    open to the trial judge to consider income over the last three years, the
    question then becomes whether the trial judge erred in doing so in this case.

[127]

I am not at all
    persuaded that he did. It is true that the appellants experts evidence was
    that the income from 2013 was unrepresentative. However, the trial judge
    accepted the respondents experts evidence that the businesses were profitable
    and growing. There was no evidence that large jobs such as the one that made
    2013 a success would not continue to arise.

[128]

Where a spouses
    income fluctuates significantly due to the inherent unpredictability of income
    from business interests, the averaging approach can certainly be appropriate. In
Mason
, this court concluded that it would be appropriate to average the
    husbands income over the last three years.

[129]

In all of the
    circumstances, I see no error in the trial judge having averaged the
    appellants last three years of income.

6. Double Dipping (Recovery)

[130]

Lastly, the
    appellant argues that given the equalization award of over $3,000,000, any
    income attributed to already-equalized assets should be excluded from income
    for the purpose of calculating spousal support. Relatedly, he argues that
    potential investment income available on the $3,000,000 equalization payment should
    be attributed to the respondent over and above the imputed income of $35,000
    from 2016 onwards.

[131]

I would give
    effect to this ground of appeal only as it relates to imputing investment
    income on the equalization payment once it is received.

[132]

The trial judge
    considered the issue of so-called double-dipping and the Supreme Courts
    statement in
Boston v. Boston
, 2001 SSC 43, [2001] 2 S.C.R. 413 that
    where practicable, the court should focus on the portion of the payors income
    and assets which have not been a part of the equalization or division of
    matrimonial assets when the payee spouses continuing need for support is
    shown.  In
Boston
, that meant focussing on the portion of the pension
    that was earned following the date of separation and not included in the
    equalization of net family property (at para. 64).

[133]

However, as the
    trial judge noted, at para. 57 of
Boston
, the Supreme Court differentiates
    pension income from business income or income from an investment:

Pension income is obviously different from business income or
    income from an investment.  See T. Walker, Double Dipping:  Can a Pension Be
    Both Property and Income?, in Best of Money & Family Law, vol. 9, No. 12,
    1994, in which the author argues that pensions should not be treated as other
    assets subject to equalization consideration.  When a pension produces income
    the asset is being liquidated. The same capital that was equalized is being
    converted into an income stream.  By contrast, when a business or investment is
    producing income, that income can be spent without affecting the asset itself. 
    In fact, the business or asset may continue to increase in value.  The value of
    the business or investment can be equalized, but neither is depleted solely by
    producing income.

[134]

In my view, the
    trial judge correctly held that double recovery of the kind contemplated in
Boston
is not a concern in a case such as this where the assets involved in the
    equalization are not liquidating assets or special assets of the nature of a
    pension.

[135]

At the same
    time, I agree with the appellant that investment income on the equalization
    payment of $3,000,000 should be attributed to the respondent once it is in her
    hands.

[136]

The trial judge
    did not attribute such investment income up to the date of the trial because, with
    the exception of the small advances used for legal and accounting fees, none of
    the equalization payment had been paid to her.  I understand that this state of
    affairs has continued. It is self-evident that the appellant cannot get the
    benefit of attributing investment income to the respondent when the equalization
    monies are still in his hands.

[137]

However, since
    the trial judges order provides for equalization payments to be made from
    2016-2020, investment income on the equalization payments should be attributed
    to the respondent in assessing the appropriate quantum of support.

[138]

I turn to
    consider what rate of return should be applied for imputing investment income
    to the respondent in the context of a determination of spousal support. In
Greenglass
    v. Greenglass
, 2010 ONCA 675, 99 R.F.L. (6th) 271, when asked to determine
    such a rate, this court stated, at para. 60, that it should look at what is a
    reasonable rate a prudent investor might be able to earn at the relevant time.
Greenglass

was decided in 2010. In it, this court applied a 2%
    rate of return to both the payor and support recipient. In
Converti v.
    Escobedo
,
2011 ONCJ 627, at para. 27, the court accepted evidence
    in support of applying an annual interest rate of 3% to a capital asset of
    $500,000.

[139]

In ordering the appellant
    to make the equalization payment over five years, the trial judge required the
    appellant to pay post-judgment interest at the rate of 3% per annum. In my
    view, 3% is also a reasonable rate of return to attribute to the equalization
    payments.

ISSUE 3:     DETERMINING SPOUSAL SUPPORT AFRESH

[140]

As I have
    explained, in my view, the trial judge committed two errors in principle in
    determining the quantum of spousal support, both of which relate to the effect
    of the equalization payment. First, he failed to consider the significant
    effect that the equalization payment will have on the respondents entitlement,
    both compensatory and non-compensatory (namely, means and needs). Second, he
    failed to impute investment income to the respondent based on her receipt of the
    equalization payment.

The Equalization Payment

[141]

In my view, the
    equalization payment which exceeds $3,000,000 should be viewed as going some
    distance towards addressing the respondents compensatory basis for
    entitlement. Further, the respondents needs and means must also be viewed in
    light of the equalization payment.

[142]

The trial judge
    focussed on the respondents significantly diminished standard of living after
    marriage breakdown. However, that reflected her financial status before any
    payment of equalization. After receipt of the equalization payment, the
    respondents means will be substantially increased and her need will be
    substantially decreased.

[143]

And, while the
    appellants means are considerable, they will be affected both by the
    requirement that he make the equalization payment (over five years) and also by
    the fact that significant additional income has been imputed to him.

Investment Income

[144]

There are two
    types of income that must be attributed to the respondent, in addition to her
    imputed employment income:  post-judgment interest on the unpaid equalization
    payments, and investment income on the equalization payments as the respondent
    receives them.  As has been noted, the trial judge recognized the former but
    erred by failing to take into consideration the latter.

Calculating Spousal Support

[145]

When calculating
    spousal support, one possible approach to dealing with these sources of
    additional income to the respondent would be to adjust the spousal support
    amount for each of the five years of the phased payout. Such an approach could
    take into account changes in investment rates, the increasing amounts of
    capital in the respondents hands and, arguably, questions such as whether and
    how to treat the compounding of interest.  In my view, the complexities of such
    an approach tell against it. It would virtually inevitably invite more
    litigation.

[146]

Instead, I would
    establish a flat spousal support rate that itself takes into consideration the
    various effects of the equalization payment. This approach promotes finality
    for the parties, a value that cannot be overstated, particularly at this stage
    of intense and protracted litigation.

[147]

It is not
    possible to precisely assess the effects of any of these factors.  However, they
    can and must be accounted for in the quantum of spousal support awarded. In my
    view, the preferable approach for doing that is to depart from the strict
    application of the SSAGs to the full $1,000,000 of imputed income to the
    appellant.

[148]

I would account
    for the effects of the equalization payment on entitlement, as well as the
    necessary attribution of investment income to the respondent, by applying the
    SSAGs formula instead to an income of $675,000. This amount is half-way between
    the ceiling and the imputed income of $1,000,000: an approach suggested as a
    reasonable mid-point by the SSAGs, in discussing incomes over $350,000.

[149]

In my view,
    attributing income of $675,000 a figure at the mid-point between the $350,000 ceiling
    and the full imputed income amount and maintaining the low-point of the range
    generated by this income (as the trial judge did), fairly achieves the desired
    effect of providing both compensatory and non-compensatory aspects of support.

[150]

The SSAGs range
    for support outputs is based on 1.5-2% of the difference between the spouses
    gross income for each year to a maximum range of 37.5-50% for marriages of 25
    years or longer. I would apply the low end of this range, namely 37.5%, to the
    gross income difference from January 2016 forward, when the trial judge imputed
    $35,000 of employment income to the respondent. This results in 37.5% x $640,000
    = $240,000 annually or $20,000/month. As I have explained above, the respondent
    will have additional interest income from the date of the Order forward. However,
    for the reasons already given, I consider these additional income sources to
    have been accounted for in the application of the SSAGs to a reduced income of
    $675,000, rather than the full $1,000,000 of income imputed to the appellant.

[151]

From the date of
    the Application until January 2016, the trial judge did not impute any
    employment income to the respondent. Applying 37.5% to a gross income
    difference of $675,000 results in a figure of $253,125 per year or $21,094/month
    of spousal support. As the foregoing explains, all of the figures used are
    approximations, for this reason, I would round the figure to $21,000/month.

DISPOSITION

[152]

Accordingly, I
    would allow the appeal in part and vary the Order as follows:

1. para. 2 shall be varied to
    provide that the first equalization payment shall be made on May 31, 2017 and
    the remaining four equalization payments shall be made on January 1 of each of
    the following four years, commencing January 1, 2018;

2. para. 4 shall be varied by substituting
    the figure of $20,000 per month for spousal support commencing January 1, 2016;

3. para. 5 shall be varied by substituting
    the figure of $21,000 per month for retroactive spousal support from the date
    of commencement of the Application. The resulting arrears from the date of
    commencement of the Application (March 4, 2011) to January 1, 2016, shall be
    calculated accordingly and substituted for the figure of $1,106,887.85, which currently
    appears in para. 5. I would also order that the date fixed in para. 5 by which
    the resulting arrears are to be paid be varied to May 31, 2017. I would leave
    unchanged the other terms of para. 5.

[153]

In terms of
    costs, it is necessary to consider not only costs of the appeal but also
    because the appellant has achieved some success on the appeal the costs award
    below, which is reflected in para. 8 of the Order. If the parties are unable to
    resolve the matter of costs both on appeal and below, they may make brief
    written submissions to a maximum of 4 pages, such submissions to be filed
    within 14 days of the date of release of these reasons.

Released: E.E.G. May 2, 2017

Eileen. E. Gillese J.A.

I agree. S.E. Pepall J.A.

I agree. L.B. Roberts J.A.





[1]

The original order was dated January 8, 2016.  A cross-appeal
    was brought in this matter but the trial judge resolved the issues it raised
    before the appeal was heard.  The resolution of the cross-appeal is reflected
    in the Order. This explains why the Order has two dates.



[2]

Earnings before interest, taxes, depreciation and
    amortization.


