How has the court considered the tax implications of lump sum payments of spousal support compared to periodic payments of periodic payments?

Although the trial judge was entitled to consider the tax consequences of lump-sum support relative to that of periodic payments, a review of the record reveals the issue was not squarely before him. Nor does it appear that any evidence was called with respect to the marginal tax rate to be utilized by the judge. The issue was not addressed in the appellant’s pre-trial brief. Without commenting on whether using an arbitrary determination of tax rates is acceptable, and since we are allergic to arbitrary findings and arbitrary decision-making, it is preferable that this issue be argued with some degree of clarity before a judge so that he/she can exercise judicial discretion properly. I am not persuaded on the facts of this case that because the trial judge ignored the tax implications of the retroactive order of spousal support that the award is clearly wrong: Hickey v. Hickey, at para. 11.