“The Trial Judge found that “the parties both agreed to raise their family in Canada making many important decisions and personal sacrifices in furtherance of this plan.” Notwithstanding this finding, the trial judge dismissed the claim for compensatory spousal support because (a) at the time of the marriage, both parties were employed on a full-time basis earning similar incomes, (b) the Appellant did not meaningfully contribute to the Respondent’s MBA and there is no evidence that her degree impacted appreciably on her career or that any contributions he did make diminished his earning capacity, (c) although the Appellant was out of the workforce for a number of years, he used this time to further his education and did not primarily care for the children or perform household tasks beyond grocery shopping, (d) the Respondent did not demand that the Appellant leave his job in Saudi Arabia and join her in Canada, and (e) the trial judge did not accept the Appellant’s evidence as to why he was unable to find employment or did not complete the required third level of his CPA course of study.
The reasons given at (a) to (d) are not a sufficient basis in law to dismiss a claim for compensatory support because they inform the narrative of the relationship, not the economic consequences to the spouses upon its dissolution. The reasons do not consider the overall objectives of an award for spousal support or the compensatory basis for spousal support that is incorporated within the SSAG “with child support” formula, as explained in chapter eight of the SSAG Revised User Guide.
As Justice McLachlin (as she then was) specifically explained in her concurring reasons in Moge at paragraph 119,
A formalistic view of causation can work injustice in the context of s. [15.2(6) and] 17(7) [of the Divorce Act], as elsewhere. The question under [s. 15.2(6)(a) and] s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under [s. 15.2(6)(c) and] s.17(7)(c) whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant.
The trial judge may have been led into error by the Respondent’s focus on the parties’ choices during the marriage, specifically, whether the Appellant should bear the consequences of having chosen to immigrate to Canada.
A claim for spousal support is not a claim in tort. Using a “but for” analysis to assess compensatory support claims is inconsistent with the Supreme Court’s determination in Moge that, when dealing with spousal support claims, the court must consider what actually happened in the relationship, and not what might have happened had the spouses made different choices.
The goal of compensatory support is to ensure that the post separation economic consequences of the roles adopted by spouses during a relationship are not disproportionately borne by one spouse alone, but instead, are shared equitably.
Nor is reason (e) – alone or balanced with the other reasons – a sufficient basis to dismiss a claim for compensatory support. The remedy for not accepting the Appellant’s explanations as to why he was unemployed or had not completed his CFA designation is to impute his income for support purposes in the same manner as income is imputed for child support purposes under s. 19(1)(a) of the Federal Child Support Guidelines: see Perino v. Perino 2007 CanLII 46919 (ON SC), [2007] O.J. No. 4298 (SCJ). That is, the remedy is to impute income to the Appellant on a finding that he was intentionally unemployed, or underemployed.
The error in dismissing the claim for compensatory spousal support resulted in the SSAG range not reflecting the Respondent’s post separation increases in income. Instead of using the findings of the Respondent’s income from 2017 to 2022, the trial judge used only the Respondent’s 2016 income of $83,000 and the Appellant’s imputed income of $25,000.
The error was then compounded by the limited duration of support. The result was that the Appellant, with one child in his primary care from 2017 to 2021, received only set off child support and no spousal support to balance the parents’ net disposable incomes.”