Court File and Parties

Court File No.: FS-14-80001 Date: 2016-09-16

Superior Court of Justice – Ontario

Re: Margaret Perri v. Enzo Perri

Before: Barnes, J.

Counsel: Karen Cunningham, counsel for the Applicant Dominic Buffone, counsel for the Respondent

Heard: August 08, 2016

Reasons

Barnes, J.

Introduction

1The applicant (Margaret Perri) is married to the respondent (Enzo Perri). The issues to be resolved are divorce, spousal support, equalization of family property, child support, and an application for leave to amend pleadings to permit Margaret Perri to request that a charge be placed on the property owned by the respondent until he satisfies any applicable court orders.

2I have concluded that the parties shall be divorced. Margaret Perri’s application for leave to amend her pleadings is granted. Enzo Perri shall pay Margaret Perri spousal support. Enzo Perri shall pay Margaret Perri an equalization payment of $3294.30. No child support shall be paid.

3On August 8, 2016, I released handwritten endorsements in this matter. These reasons vary and supersede the August 8, 2016 endorsements.

Background Facts

4Margaret Perri (Ms. Perri) and Enzo Perri (Mr. Perri) were married on May 26, 1990. They separated on November 8, 2012.

5The parties have two children, Jessica Perri (Jessica), who is 24 years old and Matthew Perri (Matthew), who is 19 years old.

6Mr. Perri is in a new relationship with Lillian Da Silva (Ms. Da Silva). Ms. Da Silva has one under age son. Mr. Perri, Ms. Da Silva, Ms. Da Silva’s son and Matthew live together in a home Ms. Da Silva and Mr. Perri jointly own (the Arrowpoint property). Up until three weeks before this trial, Matthew resided with his mother.

7Ms. Perri and Mr. Perri have sold their matrimonial home and the real estate lawyers hold the proceeds of sale in trust.

8After separation, Ms. Perri resided in the matrimonial home with Jessica and Matthew until she purchased her current home on May 3, 2014 (the Voltarie property). Ms. Perri resides at the Voltarie property with Jessica and Jessica’s husband (Mr. Mongru).

Issues

9The issues raised at this trial are:

a) Should Ms. Perri’s motion for leave to amend her pleadings be granted?

b) Should the parties be divorced?

c) How should the parties’ property be equalized?

d) Should Mr. Perri pay Ms. Perri spousal support?

e) Should Ms. Perri pay Mr. Perri child support for Matthew?

Should Margaret Perri Be Granted Leave To Amend Her Pleadings?

10Ms. Perri requests leave to amend her pleadings to request a charging order against Mr. Perri’s home, 8 Arrowpoint Drive in Brampton, Ontario, in order to secure payment of any monies owing to her. Ms. Perri submits that this order is necessary because Mr. Perri cannot be trusted to obey court orders.

Ms.Perri also seeks an amendment to increase the amount of spousal support sort from $500 to $1500. Perri submits he will experience financial hardship if a charging order is made against his property or if the request for spousal support is increased from $500 to $1500.

Rule 11(3) of the Family Law Rules O. Reg. 114/99 states:

(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way which costs or an adjournment could not compensate.

11Rule 11(3) is mandatory. The expression of hardship Mr. Perri described is a consideration for the court in determining whether the order as requested will ultimately be granted. It does not address the issue of whether the amendment by itself will create a disadvantage to Mr. Perri, which cannot be compensated by an adjournment or a cost award: see Stefureak v. Chambers, 2005 ONSC 7890, [2005] O.J. No. 1086 (Ont S.C.), D’Souza v. D’Souza, 2016 ONSC 776, [2016] W.D.F.L. 2073 (Ont. S.C.), at paras. 15-18. I see no such disadvantage to Mr. Perri should I grant the order requested. Therefore, Ms. Perri is granted leave to amend her pleadings as described.

Should The Parties Be Divorced?

12The parties consent to a divorce. Section 8(1) of the Divorce Act, R.S.C., 1985, c. 3 authorizes a court of competent jurisdiction to grant a divorce to spouses on the grounds that there has been a breakdown of their marriage.

13One of the circumstances under which a breakdown of marriage can occur is when:

Divorce Act section 2 (a):

The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding. or…

14The parties have lived apart since November 8, 2012. Therefore, they have been separated for more than one year. Subsection 2 (a) has been satisfied. The spouses shall be divorced.

Should Enzo Perri pay Margaret Perri spousal support?

15I have concluded that Ms. Perri is entitled to spousal support on a compensatory basis. This arises from career opportunities Ms. Perri has forgone during the marriage. I have assessed the spousal support payable over two time periods: (a) the period from the date of the marriage breakdown to the date Ms. Perri purchased the Voltarie property and (b) the period after Ms. Perri left the matrimonial home to the present.

16As a result of the marriage breakdown, there is a great deal of animosity between Ms. Perri and Mr. Perri and his new partner Ms. Da Silva. Ms. Da Silva was Jessica’s friend. Jessica is not happy about her father’s new relationship and is not on speaking terms with either Mr. Perri or Ms. Da Silva. I approach the evidence of all these witnesses with caution.

17Mr. Perri withheld the disclosure of a $50,000 loan to Ms. Da Silva until trial. This calls into question the veracity of the said loan and leads me to have concerns about his credibility.

18Lolanda Perri is Mr. Perri’s mother. Domenica Campoeonico is Ms. Perri's mother. Despite their close familial relationship to the parties, these witnesses testified in a forthright manner to the best of their abilities.

19Matthew recently moved from his mother’s home to live with his father. This occurred because of a disagreement with his mother and sister. However, Matthew testified in a forthright manner. Grace Miceli is Ms. Perri’s best friend. Despite her close relationship to Ms. Perri, she was a forthright witness. Peter Martin was an expert witness whose testimony was most helpful to the court.

Position of the Parties

20Ms. Perri submits that she is entitled to spousal support on both a compensatory and needs basis.

21Ms. Perri says she is entitled to $1,500 per month spousal support retroactive to the date of separation, which is November 8, 2012, and for an indefinite period. Ms. Perri submits that her entitlement stems from the duration of the marriage, which lasted some 22 years. She was the primary caregiver for the children during the marriage. She cared for Mr. Perri and the children, thus, enabling him to enhance his career and earning potential. He is currently earning $100,000 per annum. Mr. Perri lives with a new partner who earns $35,000 per year and contributes to his household expenses. Mr. Perri’s obligations to Ms. Perri must take precedence over his obligations to his new family. Ms. Perri’s standard of living since separation has deteriorated while Mr. Perri has maintained the same standard of living since separation.

22Ms. Perri says she had to find suitable accommodation for herself and Matthew, as well as Jessica and her husband, who are not self-supporting. She has been living in considerable debt since the separation. Her costs of living in the City of Mississauga is higher than if she lived in a small town. As a result of the separation, she is suffering financially and although she worked outside the home, she made career sacrifices in order to fulfill her role as the primary caregiver for the children.

23Mr. Perri submits that Ms. Perri is not entitled to spousal support. She did not make any career sacrifices to care for the children. He explains that Ms. Perri never expressed a desire to enhance her career prospects and was very comfortable with her career. Mr. Perri said they both contributed to childcare. He described the contributions as 50/50. Mr. Perri explained that his mother, Lolanda Perri, cared for the children on weekdays so that he and Ms. Perri could work. His mother also frequently prepared meals, which he took home for his family’s dinner.

24Mr. Perri submits that Ms. Perri is not entitled to spousal support on the basis of need because she has chosen to take on the basic day-to-day expenditures of their daughter Jessica and her husband. Jessica is no longer a “child of the marriage” under the Divorce Act. These expenses have contributed to Ms. Perri’s financial expenditures and shortfall. Ms. Perri has purchased a house bigger than what she needs in order to accommodate the needs of two adults who should be supporting themselves.

25Mr. Perri also encouraged the court not to award retroactive spousal support because Ms. Perri did not seek a temporary spousal support order. The court is asked to consider the fact that Ms. Perri resided in the matrimonial home rent free for one and a half years. Mr. Perri argues that if the court were to decide to make a spousal support order, it should be in the form of a lump sum award so that the parties can move on with their lives.

Discussion

26Section 15.2 of the Divorce Act sets out the statutory framework for spousal support orders. Subsections 15.2 (4), (5) and (6) set out the factors to consider in determining whether a spousal support order should issue:

15.2 (4): In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

a. the length of time the spouses cohabited;

b. the functions performed by each spouse during cohabitation; and

c. any order, agreement or arrangement relating to support of either spouse.

15.2 (5): In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

15.2 (6): An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

1997, c. 1, s. 2.

27Applicable principles gleaned from Moge and Bracklow are summarized in Yonathan v. Matrook, 2015 ONSC 1984, [2015] W.D.F.L. 2484 (Ont. S.C.), at paras. 86 & 87:

[ 86 ] D. A. Rollie Thompson aptly and succinctly summarised the main principles in Moge and Bracklaw, in his paper Ideas of Spousal Support Entitlement (2015), 34 Can.Fam.L.Q.I. For Moge Professor Thompson writes:

(7) Marriage per se does not automatically entitle a spouse to support and spousal support is “not a general tool of redistribution which is activated by the mere fact of marriage [para. 74]

(8) Spousal support ought to be based primarily upon a compensatory model [para 64-74, 78-85]

(9) This model compensates a spouse for the economic disadvantages and advantages that will result from the roles adopted during marriage [paras 65-74, 78-85]

(10) The compensatory model finds its legislative foundation in the broad language of s. 15.2(6) (a), (b) and (c) of the Divorce Act paras 68, 72,81 The primary source of these disadvantages is the disproportionate obligations of the past and future childcare borne by the spouse, but there are other compensatory reasons too [paras 79-81 and 82-83]

(12) Courts should be careful not to underestimate the depth and duration of the economic disadvantage experienced by the recipient spouse [paras 69-70]

(13) Courts should therefore be slow to grant time – limited orders in compensatory cases based upon “deemed” self-sufficiency [paras 54, 69, 71, 74]

(14) [G]reat disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role adopted by one party [para 84]

(15) As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution [para 84]

(16) The grounds for support are not exclusively compensatory, as is indicated by the language of s. 15.2(6)(c). Other considerations are not excluded, “particularly when dealing with sick or disabled spouses’ [para 75]

(17) [T]he real dilemma in most cases relates to the ability to pay of the debtor spouse [para 76]

[ 87 ] In the same article Professor Thompson provides this useful summary of the ratio from Bracklaw :

(1) Compensation is now “the main reason for support”, but not the sole basis for support. [para 49]

(2) There are three conceptual bases for entitlement to spousal support:

i. Compensatory.

ii. Contractual. and

iii. Non-compensatory [para 49]

(3) It is now well settled law that spouses must compensate each other for forgone careers and missed opportunities during the marriage prior to the break down of their union [para 1]

(4) Marriage per se does not create an obligation to pay spousal support, but the obligation may flow “from the marriage relationship itself” [para 44].

(5) “But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role”, revived from its underlying “dormant state” [para 49].

(6) Section 15.2 (6) (c) of the Divorce Act refers to economic hardship . . . arising from the breakdown of the marriage”, which is capable of encompassing “the mere fact that a person who formerly enjoyed inter-spousal entitlement to support now finds herself or himself without it [para 41]. “Need alone may be enough” to establish entitlement to support [para 43].

(7) A spouse’s lack of self-sufficiency may be related to compensatory disadvantage, or it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its break down) or, as in this case, ill-health [para 42]

(8) “The same factors that go to entitlement have an impact on quantum” which includes both amount and duration: [para. 50].

(9) “it does not follow from the fact that need serves as the predicate for support that the amount of the support must always equal the amount of the need”. Amount and duration can be inter-related, with a modest amount for an indefinite duration or a substantial lump sum payment [para 54].

(10) “Marriage, while it may not prove to be ‘till death do us part’ is a serious commitment not to be under taken lightly. It involves the potential for life long obligation. There are no magical cut-off dates para 57.

28During their marriage, Ms. Perri and Mr. Perri received financial support from family members. The bulk of the money came from Mr. Perri’s mother, Lolanda Perri, and his father. Mr. Perri’s father is now deceased.

29At an early stage of their relationship, Ms. Perri’s grandfather lent them $5,000.00. The couple used this money as a down payment in purchasing a condo. They rented out the condo and moved into Mr. Perri’s parents’ home. They lived with Mr. Perri’s parents for one and a half years. Subsequently, they purchased a semi-detached home and lived in that home for four years. The couple sold this home and the condo. They used the proceeds to purchase the matrimonial home where they lived for 16 years.

30Lolanda Perri lent the couple various sums of money over the years. She lent them $25,000 to purchase a Honda Civic. The couple made monthly payments for the vehicle of $300 per month. The couple eventually paid this loan off. Ms. Perri currently has this vehicle.

31Lolanda Perri lent the couple $149,000. The couple used this money to pay off the mortgage on the matrimonial home and paid Lolanda Perri back at the rate of $1,000 per month. The couple made these payments until they had paid back $100,000. At this point, Lolanda Perri forgave the loan and the couple saved the monthly payment of $1,000 each month.

32Lolanda Perri gave Mr. Perri $10,000 for a business that was unsuccessful.

33The matrimonial home purchased was a new builder’s home. It had a two-car garage, four bedrooms, and modern kitchen. The matrimonial home was a renovated, modern, and comfortable home.

34Jessica and Matthew said their needs were fully satisfied by their parents. Despite their personal problems, the parties were and still remain good parents. There was a clear demarcation of parental roles during the marriage.

35During their marriage, Mr. Perri and Ms. Perri took leisure trips, some with the children and others by themselves. They travelled to holiday destinations such as Puerto Vallarta on three occasions, Cancun, Jamaica, Los Cabos, and Italy.

36Ms. Perri worked as a legal assistant during the marriage and at the time of the trial. She has worked as a legal assistant for 30 years. Between 2010 and 2015, Ms. Perri’s income ranged from $58,354 to $67,668.10.

37Ms. Perri testified that she had always wanted to enhance her earning potential by becoming a paralegal and also by doing something in business and law. She explained that her duties to her family came first.

38Ms. Perri explained that she gave up opportunities to earn more as a legal secretary. She explained that she works at a small law firm and has forgone benefits and a pension because of her family. Ms. Perri said she always had the option of working at a bigger law firm downtown where she would receive more income and benefits. For example, Ms. Perri said she left her position in Etobicoke and took a position with a smaller firm in Mississauga in order to carry out her responsibilities as the primary caregiver for her children and husband.

39During the course of the marriage, the couple supported each other in various forms as they tried to make a life together. I have already described their joint venture in securing the matrimonial home. For example, Ms. Perri was bedridden for a time when Jessica was born. Mr. Perri nursed and cared for Ms. Perri and a newborn Jessica.

40Furthermore, at some point while the couple lived with Mr. Perri’s parents, he was unemployed and Ms. Perri worked to help support him. The couple did not have to pay for food or shelter during that period.

41During the marriage, Mr. Perri’s career improved. He was promoted from accounting supervisor to manager of purchasing and facilities and is currently the director of purchasing and facilities. His income ranged from $93,830.70 in 2010 to $100,941.74 in 2015.

42There is disagreement between the parents as to who was the primary caregiver of the children. Ms. Perri stressed that she did all the cooking and cleaning for Mr. Perri and the children. She said she was the only person who helped the children with their homework. Mr. Perri said it was a 50/50 split as he helped with cleaning and cooking. His mother supplied meals on many occasions. Mr. Perri said many times that Ms. Perri would get home in time to watch a television program Young and the Restless and did not cook or clean much. If she did, she shared responsibilities with him.

43There is little disagreement that on weekdays from 9 a.m. to 5 p.m. Lolanda Perri cared for the children. This enabled Ms. Perri and Mr. Perri to work. On weekends, the couple made their own childcare arrangements. On some infrequent occasions during the weekend, Domenica Campoeonico would care for the children.

44Lolanda Perri demonstrated significant generosity toward Mr. Perri and Ms. Perri in the years she provided childcare. The question is whether Ms. Perri nevertheless remained the primary caregiver. Lolanda Perri says Ms. Perri did not have to rush home from work because the 5 p.m. pick-up time was not firm. It could extend as far as 7 p.m. However, despite her generosity, she set some reasonable limits. For example, she would not watch the children on the weekends. Within that context and despite her assertions to the contrary, I am satisfied that Mr. or Ms. Perri could not pick-up the children from her home at any time they wished. I find Ms. Perri’s assertions that she had to rush home to prepare supper for the children and her husband to be reasonable and I accept it.

45Mr. Perri said one of the things Ms. Perri did was watch Young and The Restless when she got home. Ms. Perri said she did so while cooking or cleaning. Mr. Perri’s reference to Young and the Restless is intended to bolster his evidence that Ms. Perri did not have primary responsibility for caregiving and did not carry out this function effectively. This assertion is contradicted by an e-mail Mr. Perri sent to Ms. Perri after separation. In the email, he acknowledged her positive contributions to the marriage and the family. I do not accept Mr. Perri’s explanation that the e-mail was fabricated on the advice of his therapist to make Ms. Perri feel better. This e-mail is, however, not determinative. There is other evidence that contradicts Mr. Perri’s description of the parties’ roles within the marriage.

46Lolanda Perri was most helpful. She babysat the children. She ironed and repaired clothing for the family. She provided snacks and meals as required. Lolanda Perri was a good and supportive grandmother; however, she lived in a different home. Jessica and Matthew said that their mother was the primary caregiver. She did the cleaning, cooking, prepared meals including lunch and dinner, and took care of them on weekends. Grace Miceli, Ms. Perri’s best friend, and Domenica Campoeonico also confirmed this.

47This does not in any way diminish the important role Mr. Perri played in the family. Mr. Perri primarily took care of the outdoor work and took Matthew to sporting activities. There is no indication that he was a bad father and it is unreasonable to believe that he never contributed to indoor household activities. However, the evidence does not support his assertion that he contributed to primary care activities on a 50/50 basis.

48Furthermore, there is no evidence that Mr. Perri suffered any economic disadvantage from the marriage or his contributions to the activities of the household. On the contrary, his career thrived during the marriage. Mr. Perri’s work hours fit nicely with the family’s schedule and lifestyle.

49Ms. Perri, on the other hand, agreed to take on a job that was closer to home so that she could carry out her family responsibilities. She did not seek better paying jobs because they would take her further from her home and hamper her ability to meet her family responsibilities effectively. The result is that Jessica and Matthew felt that she was a good mother.

50Ms. Perri and Mr. Perri are good parents to Jessica and Matthew. They both are 49 years of age and both have a college level education. Mr. Perri’s career has had an upward trajectory; there is no evidence of any adverse career effects resulting from his family responsibilities. Ms. Perri’s career has remained stagnant; she gave up better paying employment opportunities for the sake of her family.

51The fact that a spouse is prepared to forgo better employment opportunities for the benefit of their family does not in any way detract from the fact that he or she has suffered an economic disadvantage as a result of the marriage.

52Once the marriage broke down, Mr. Perri moved out. He rented an apartment for a period on his own, shared a rental accommodation with Ms. Da Silva, and now owns a home with Ms. Da Silva as tenants in common. This home is very similar to that which Mr. Perri once shared with Ms. Perri.

53Mr. Perri has an annual income of almost $100,000. Ms. Da Silva has an annual income of approximately $35,000. Ms. Da Silva has a young son. Mr. Perri has indicated a desire to adopt this child. However, at the current time, the child’s biological father is obliged under a court order to make monthly child support payments of $1,012 dollars each month to Ms. Da Silva. Ms. Da Silva asserts that her son’s father has not been honouring the court ordered support obligations.

54The objective evidence before this court is that Ms. Da Silva’s son’s biological father is obligated to pay child support. The child support payable is additional financial resources for the partnership with Mr. Perri. Mr. Perri has taken no steps to adopt Ms. Da Silva’s son and is under no legal obligation to provide financial support for this child at the current time.

55Matthew is 19 years of age. He is attending George Brown College and is enrolled in a three-year program. The issue of child support for Matthew was a late breaking issue, which arose after he suddenly changed residence from his mother’s to his father’s home, and therefore, there remain many unanswered questions such as how Matthew is paying for his education, whether his parents are contributing, if he is going to be working during school, whether he is paying for his education from savings or student loan; and if he still needs financial support from his parents, et cetera.

56The court must consider whether Matthew is still a “child of the marriage” as described under the Divorce Act such as to be entitled to child support from his parents. Given the state of the record, I conclude that Matthew is an adult not entitled to child support. This finding is without prejudice; the issue may be revived with a proper evidentiary record. Therefore, I do not assess the financial consequences of Matthew living with Mr. Perri and Ms. Da Silva as significant.

57Mr. Perri and Ms. Da Silva explain that each of them contributes to their family’s financial expenses. Mr. Perri takes care of the bulk of the expenses and Ms. Da Silva contributes as required.

58Mr. Perri and Ms. Perri were the benefactors of loans from family members, especially from Lolanda Perri. Lolanda Perri lent the couple $149,000 dollars to pay off their mortgage. This did not mean, however, that the couple could use the money that would have been directed to their mortgage in any manner they wished. The couple still had to pay $1,000 a month to Lolanda Perri in repayment of the loan. Mr. and Ms. Perri repaid up to $100,000. At that point, Lolanda Perri forgave the remaining $49,000. This allowed Mr. and Ms. Perri to redirect the $1,000 per month to other purposes.

59I have outlined the type of financial contributions family members made to Mr. and Ms. Perri. However, the benefits of these contributions were ancillary. Mr. Perri and Ms. Perri established their standard of life on the basis of joint financial planning and the strength of their combined incomes.

60Upon the breakdown of the marriage, Mr. Perri still has a career with an upward trajectory unencumbered during the marriage or by the marriage breakdown. His lifestyle with Ms. Da Silva is similar to that which he had with Ms. Perri before the marriage breakdown. I note that Ms. Da Silva has a lower annual income than Ms. Perri; however, she is entitled to a monthly financial infusion of $1,020 in child support from the father of her son. Mr. Perri continues to have relatively the same standard of living as he did during the marriage. I have taken into account Mr. Perri’s standard of living trajectory since separation. This included living alone in rental accommodation, living with Ms. Da Silva and her son in rental accommodation, and now, his current living arrangements.

61Upon the breakdown of the marriage, Ms. Perri stayed in the matrimonial home with the children. Jessica was about 19 years old at that time and Matthew about 15 years old. There was some agreement as to how child support was to be paid. During this period, although some of the expenses of the home were divided between the couple, Ms. Perri remained responsible for the primary care of the children without the full benefit of Mr. Perri’s income.

62I conclude Ms. Perri suffered economic hardship as a result of the breakdown of the marriage. She was employed at the time of the marriage breakdown and remains employed. However, her decision to put the needs of the children first impacted the selection of the type of organisation where she could work, effectively stifling her upward mobility and corresponding ability to increase her earnings.

63On a needs and compensatory basis, Ms. Perri is entitled to spousal support from the date of separation, November 8, 2012, until May 3, 2014 when she purchased the Voltaire property. Ms. Perri shall receive spousal support either at the midrange of the spousal support guidelines for an indefinite period or at the top of the range for a fixed duration.

64I find Mr. Perri’s 2015 income to be $100,610 and the corresponding income for Ms. Perri to be $63,303. The top range of guideline spousal support payable as per the Divorce Mate software calculation is $1,364 monthly. At this rate, retroactive spousal support to cover the 17 month period from November 8, 2012 to May 3, 2014 is $23,188. This is the period from the date of the marriage breakdown to the date Ms. Perri purchased the Voltarie property.

65Mr. Perri’s submits that Ms. Perri’s request for retroactive spousal support is not timely. Ms. Perri did not seek an order for temporary spousal support. This was a 22-year marriage during which time Ms. Perri made sacrifices beneficial to the family but detrimental to her career. Mr. Perri has not advanced any reason why a retroactive spousal support order will cause him financial hardship nor does the record before me reveal any such hardship.

66Mr. Perri shall pay Ms. Perri $23,188 in retroactive spousal support. This amount shall be adjusted to take into account any tax consequences. The circumstances surrounding the end of the parties marriage is such that there is great animosity between the parties. Ms. Perri and Jessica are estranged from Mr. Perri and a lump sum payment can assist in reducing their further contact with each other. For all these reasons, Mr. Perri shall pay Ms. Perri $ 23,188, in retroactive spousal support within 30 days from the date of this order. This figure shall be adjusted to account for any tax implications.

67Ms. Perri purchased the Voltarie property on May 3, 2014 and by that time, Jessica was married. She was no longer a “child of the marriage” entitled to child support under the Divorce Act. By the time of the trial, Matthew no longer lived with Ms. Perri.

68The Voltarie property is a semi-detached home with four bedrooms in a less affluent neighbourhood than the matrimonial home. It is a 30-year-old home in need of extensive renovation and is comparatively less modern and in worse condition than the matrimonial home.

69The matrimonial home was a four bedroom two-storey home with a two-car garage. The Voltarie property has a hole in the back yard where a defunct swimming pool is located and the kitchen needs updating. Ms. Perri called the Voltarie property a fixer upper.

70Finding suitable accommodation that could house herself, Matthew, as well as Jessica and her husband was a priority for Ms. Perri. Ms. Perri did not consider renting. She borrowed some money from her mother to help raise the down payment required for the Voltarie property.

71Ms. Perri’s decision to provide free accommodation for her adult daughter Jessica and her husband is quite understandable. Ms. Perri wanted to help them until their finances had improved to the point where they could be self-sufficient. In addition, Ms. Perri explained how Mr. Perri’s parents had allowed her and Mr. Perri to live with them rent free for a time while she and Mr. Perri were getting on their feet financially. Eventually, Mr. Perri and Ms. Perri were able to purchase a matrimonial home.

72Ms. Perri’s motives and reasoning are reasonable and admirable. However, on a dispassionate analysis of her financial circumstances, I conclude that Ms. Perri’s current monthly deficit of $1,500 is due in large part to her decision to take on a large mortgage for more house than she needed. She has purchased a larger place to accommodate two adults who strictly speaking should be expected to fend for themselves financially at this time. This fact is especially more significant since Ms. Perri has lost the benefit of Mr. Perri’s $100,000 income.

73In other words, Ms. Perri elected to assume higher living costs, including a higher mortgage in order to provide free food and lodging for two adults who are not “children of the marriage” under the Divorce Act and are not entitled to financial support from her under any applicable family law legislation.

74Matthew was not an adult at the time of Ms. Perri’s purchase of the Voltarie property and was still entitled, under the applicable legislation, to receive financial support from both parents. It was reasonable for Ms. Perri to consider him when finding appropriate post-separation accommodation.

75Simply put, the factors I have outlined and other financial considerations, including a monthly deficit of $1,500, suggest that Ms. Perri did not require a four-bedroom house and the attendant carrying costs. In addition, Matthew’s decision to live with Mr. Perri supports the financial reality that Ms. Perri should be looking for suitable accommodation for herself only.

76It is entirely Ms. Perri’s prerogative to decide where she wants to live, who she wants to live with, and how large her living space should be. The factors I have outlined above are only relevant in my determination of whether Ms. Perri continues to be entitled to spousal support and the quantum of such an award.

77I have explained that Ms. Perri has suffered economic hardship arising from the breakdown of the marriage. She has lost the intra spousal financial and other support she enjoyed during the marriage. Her standard of living has deteriorated as a result of the marriage breakdown.

78Ms. Perri argues that she is entitled to spousal support on the basis of need. She points to her $1,500 monthly deficit. An analysis of this deficit from a strictly economic perspective reveals that there are several ways in which it can be reduced without financial support from Mr. Perri.

79Jessica and Matthew are currently not “children of the marriage” as defined under the Divorce Act. The children are technically not entitled to financial support from their parents at this time. Thus, accommodation and other living costs can be reduced by, for example, living in accommodation with lesser carrying costs and/or asking Jessica and her spouse to contribute financially to the current accommodation and living costs.

80Ms. Perri is a legal assistant with 30 years of experience. One would expect such a high level of experience to be valued in the job market. Currently, Ms. Perri is free to explore what that job market will pay for her expertise, and she can decide at her discretion what employment steps she wishes to take to alleviate her financial shortfall.

81I make this observation in recognition of the fact that Ms. Perri is 49 years old. As a result of her primary care responsibilities during the marriage, she has given up several years of career advancement and income growth. This fact did not lead to economic hardship for Ms. Perri during the marriage because she had intra spousal financial and other support from Mr. Perri.

82The fact that Ms. Perri sacrificed her ability to earn a higher income was mitigated by the financial support and contributions of Mr. Perri. The marriage breakdown has left Ms. Perri without access to that support. Hence, her reduced earning potential has become a liability. She has suffered economic hardship from the breakdown of the marriage. In these circumstances, Ms. Perri’s entitlement to ongoing spousal support arises on a compensatory basis.

83Ms. Perri’s prospects for reducing or eliminating her economic hardship by increasing her future income potential and/or reducing her expenses are some of the many factors I have considered in determining the spousal support amount, the duration of support, and whether this support should be monthly or provided in a lump sum payment.

84Given the 22 year duration of the marriage, the parties 2015 income, Ms. Perri’s current employment and freedom to explore higher paying employment, her ability to mitigate her current financial deficit as I have described, and the possibility that her income levels may change in the coming years, I have reconsidered my initial decision to award Ms. Perri spousal support at the top of the guideline support range for the period of separation after May 2014. Instead, I award Ms. Perri mid-range spousal support in the amount of $1,194 (Divorce Mate calculation) effective retroactively to June 1, 2014 and ongoing from that date.

85I now consider whether this award should be for an indefinite or fixed duration, and if for a fixed duration, whether it should be paid in the form of a lump sum payment. Factors to consider in making this determination include whether the payor has the ability to make a lump sum payment of spousal support, if there is an entitlement to an equalization payment which will be sufficient to obviate any need for transitional spousal support, whether it is beneficial to hasten the complete termination of contact between the parties, if there is a risk of non-payment of periodic spousal support and whether the needs and means of the parties will change over time. Each case is fact-specific and a court must consider the advantages and disadvantages of making a lump sum support payment order: Davis v. Crawford, 2011 ONCA 294, [2011] O.J. No. 1719.

86Ms. Perri is in the middle phase of her life. However, her children are adults, and her role as primary caregiver for the children is at an end. Ms. Perri will have the opportunity to explore other employment opportunities, which will increase her income and benefits. This does not, however, diminish the many years of career sacrifice she has made in order to carry out her role as primary caregiver successfully.

87Given Ms. Perri’s current employment, freedom to explore higher paying employment, her ability to mitigate her current financial deficit as I have described and the possibility that both parties income levels may change over the coming years, a spousal award of indefinite duration would be favourable. However, the high degree of animosity between the parties demonstrates the desirability of a “clean break.” Mr. Perri’s assertion of preference for a lump sum award to facilitate a clean break between the parties is an implied assertion of an ability to pay a lump sum award. Ms. Perri has also asserted a preference for a lump sum award, although such preference was based on the condition of monthly spousal support ordered at the top of the range.

88After weighing all the applicable factors, I conclude that a lump sum award will be preferable. Therefore, I order Mr. Perri to pay Ms. Perri lump sum spousal support of $143,280. This represents $1,194 monthly spousal support over a 10-year period. This figure shall be adjusted to reflect tax consequences. Payment shall be made within 90 days of this order.

89Mr. Perri shall also designate Ms. Perri as an irrevocable beneficiary on his life insurance policy.

How should the parties’ property be equalized?

90Section 4 and 5 of the Family Law Act, R.S.O., 1990, c. F.3 outlines the statutory framework for settling property issues between married persons. The steps involved in this framework are summarised in Berdette v. Berdette, 1991 ONCA 7061, [1991] 3 O.R. (3d) 513 (Ont. C.A.):

Step 1: Determine the net family property of each spouse under section 4. To determine the net family property these questions must be answered:

• What property did each spouse own on valuation day?

• What is the value of that property after making deductions and allowing exemptions permitted under section 4?

Step 2: Determine whether one spouse’s net family property is greater than the other. Under section 5(1) this difference is equalised by ordering that one half of the difference must be paid to the spouse with the lower net family property. This is subject to Step 3

Step 3: Before making an order under Step 2, the court must determine whether it will be unconscionable to equalize the net family properties. Considerations to consider in making this determination are listed in section 5(6)

91Section 4(c) of the Family Law Act list a series of events the earliest of which will constitute the “valuation date” under the Family Law Act. The valuation date is “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” In this case, the valuation date is November 8, 2012.

92Ms. Perri filed an amended net family property statement dated January 19, 2016, in which she calculates that Mr. Perri owes her an equalization payment of $18,792.65. Mr. Perri filed two net family property statements. He relies on his net family statement dated January 11, 2016, in which he calculates that Ms. Perri must pay him an equalization payment of $7855.83. There are a few areas of contention in the net family property statements, which I address below.

Household Chattels

93Ms. Perri testified that the household property has already been divided. She explains that she has had to buy some new furniture to furnish her new residence. Mr. Perri submits that Ms. Perri kept most of the household chattels and he only retained a pool table and couch.

94Ms. Perri’s mother, Domineca Campoeonico, testified that she saw some of the matrimonial home property at Ms. Perri’s Voltarie residence. This is the list: a broken chair and couch in the basement, the dining room table, a hutch, outdoor patio furniture, the flat screen television, framed art, a “broken” espresso maker, silver and gold plates, crystals, Raptors bar table and stools, blue leather chairs, fireplace mantle and insert, silver TV stand, Lazy Susan, cast iron table and chairs, love seat, front porch chairs and table, and a barbecue.

95I am satisfied that Ms. Perri took the bulk of the matrimonial home contents. Some of the furniture was not in good condition. The parties disagree about the value of the items including some framed art, which Ms. Perri has. Mr. Perri estimated the value of the items kept by Ms. Perri at $12,200. Mr. Perri retained only the pool table and couch. He estimated the value of these items to be $1,500.

96No credible evidence has been filed to either refute or support these estimates. These used items have some value. I find that some of the furniture was not in good condition. I will accept Mr. Perri’s estimated value of the pool table and couch at $1,500 and the value of the items Ms. Perri retained is set at $8,000.

Registered Retirement Savings Plan

97At the valuation date, Mr. Perri had some RRSPs. Peter Martin, a tax expert and expert in the calculation of notional disposition rates for RRSPs, testified that if Mr. Perri disposed of his RRSP after separation, the tax rate will be 33.15 percent. If he cashed in his RRSP at the time of retirement, estimated to be 65 years of age, his tax rate would be 10 percent. The tax rates are used to calculate the disposition costs at the time the RRSP is cashed in. Mr. Martin explained that these tax rates determined the RRSP disposition costs.

98When the disposition costs of an asset is inherent in the “value” of the asset, the “value” of the asset must be discounted by those costs: see Sengmueller v. Sengmueller, 1994 ONCA 8711, [1994] 17 O.R. (3d) 208 (Ont. C.A.). The disposition cost of an RRSP is “inherent” in the value of the RRSP and therefore the “value” of the RRSP must be discounted by those costs.

99Mr. Perri testified that he intends to dispose of his RRSP prior to retirement. However, his exact date of disposition is unclear and because of this uncertainty, I will accept Mr. Perri’s proposed disposition rate of 25%. I also accept the RRSP values listed in Mr. Perri’s net family statement dated January 11, 2016. I calculate the total value of Mr. Perri’s RRSP’s at the valuation date to be $62,079.97. Therefore, Mr. Perri’s disposition costs will be $15,519.99 (25% of $62,079.97).

Enzo Perri’s Infinity Vehicle

100Section 4(2) and (1) of the Family Law Act excludes from the recipient spouses net family property any “property, other than the matrimonial home, that was acquired by gift or inheritance from a third party after the date of the marriage.”

101Mr. Perri testified that his mother approached him with the idea of buying a condominium for him and his sister. Mr. Perri said he spoke to Ms. Perri about the idea and Ms. Perri said she did not think it was a good idea. Instead, he and Ms. Perri agreed that the money his mother money was to give him for the condominium purchase should be used to purchase a car. Mr. Perri said he would not have purchased the Infinity vehicle had his mother not gifted him the money to buy it.

102Lolanda Perri’s version of events is that she intended to purchase a cottage with herself, Mr. Perri, and his sister as joint owners. This idea fell through. In the end, she purchased the cottage with herself and her daughter as co-owners. She explained that as part of this transaction, her daughter received $100,000.

103Lolanda Perri explained that she forgave the remaining $49,000 from the $149,000 loan she had given Mr. Perri and Ms. Perri to cover their mortgage. Iolanda Perri said she gave Mr. Perri $60,000 in cash. In effect, each of Lolanda Perri’s children received a gift of $100,000.

104Lolanda Perri said Mr. Perri told her he wanted to purchase a car and so she told him to use the money for that purpose. According to Ms. Perri, she and Mr. Perri agreed that the money received from Iolanda Perri was intended to help the couple reduce their debts and not to purchase the car. She explained that the car was purchased from their joint line of credit.

105I find the sequence of events to have been as follows: the Infinity was purchased from the couple’s joint line of credit. The money from Iolanda Perri was received after this purchase and applied to the joint line of credit. In effect, Mr. Perri wishes to retrospectively trace the money he received from his mother and link it to the purchase of the car.

106Tracing applies prospectively and not retrospectively: see Fotheringham v. Fotheringham, 2004 ONSC 5049, [2004] 2 R.F.L. (6th) 288 (Ont. S.C.). In Fotheringham, one spouse purchased a vehicle from the couple’s joint line of credit. She then paid off the balance of the line of credit from money received from a personal injury settlement.

107The receipt spouse in Fotheringham sought to trace the funds retrospectively and argued that the value of the car should be excluded from of her net family property. Mackenzie J. in Fotheringham at paras. 61 and 62 wrote:

As noted, the purchase price of the car was derived through use of a joint line of credit six months before the receipt of the personal injury settlement funds. Counsel for the husband submits that the wife is seeking to invoke the equitable doctrine of tracing but points out that tracing is a prospective tool and not a retrospective tool. In support of this contention, counsel cites the case of Rosenthal v. Rosenthal [1986], O.J. No. 2520 (H.C.J.) and Addario v. Addario, [1989] O.J. No. 62 (D.C.O).

I am persuaded that the foregoing authorities and the general law respecting the equitable doctrine of tracing prevent the wife from linking the purchase price of the vehicle to her personal injury settlement payment. In the result, the value of the wife’s car at the date of separation in the amount of $12,500.00 is not exempt from inclusion in her net family property.

108I agree with the reasoning in Fotheringham. Mr. Perri cannot reach back retrospectively to attribute the funds used to purchase the Infinity vehicle to the money received from Lolanda Perri. Therefore, the value of that vehicle will not be excluded from his net family property calculation.

Wedding and Engagement Rings

109Ms. Perri is in possession of wedding and engagement rings with a documented appraised value ranging from $1,100 to $1,200. Mr. Perri challenges this appraisal on the basis that the appraiser is the employer of Ms. Perri’s mother. Mr. Perri submits that the value of the rings should be $5000 but has filed no documentation in support of this claim. I will fix the value of these rings at $1,150 and include them in Ms. Perri’s net family property calculation.

110Ms. Perri has assigned a value of $2000.00 to Mr. Perri’s wedding ring. It is unlikely that Mr. Perri’s wedding ring will be more expensive than Ms. Perri’s engagement and wedding rings combined. No documentary evidence in favour of this value was provided. Given the state of the record, I assign a value of $800.00 to Mr. Perri’s wedding ring.

Equalization Payment Calculation

111Apart from the values attributed above, I accept the figures as stated in the net family property statements of the parties. Where there is a disagreement on the value of shares owned by Mr. Perri, I accept the value of said shares as described by Mr. Perri.

112Applying the statutory framework for equalizing property between spouses as set out in Section 4 and 5 of the Family Law Act and summarised in Berdette:

a) Value of assets owned on valuation date:

i. Total value of assets for Margaret Perri: 535,008.40

ii. Total value of assets for Enzo Perri: 434,017.79

b) Value of debts and liabilities on valuation date:

i. Margaret Perri: $275.35

ii. Enzo Perri: $17,695.80 (includes notional RRSP disposition costs at 25% ($15,519.99,))

c) Value of exempted property:

i. Margaret Perri: $125,000.00 (percentage share of property to be inherited from her mother)

ii. Net family property of Margaret Perri: $535,008.40 – [275.35+125,000.00] = $409,733.05

iii. Net family property of Enzo Perri: $434,017.79 17695.80 = $416,321.99

d) Difference in net family property values: $416,321.99 – $409,733.05 = $6,588.94

e) Equalisation payment. Section 5(6) of the Family Law Act (unconscionable considerations do not apply): ½ of 6588.94 = 3294.47.

113Mr. Perri shall pay Ms. Perri $3,294.47 dollars in equalization payment within 30 days.

Insurance and other costs

114Mr. Perri submits that between the dates of separation and when Ms. Perri moved into her new home, he incurred expenses such as home insurance costs for the matrimonial home and cellphone costs for Ms. Perri, Jessica and Matthew. Mr. Perri did not reside at the matrimonial home at that time. Ms. Perri resided in the home with Matthew and Jessica.

115Mr. Perri estimated the total cost of these expenses amounted to between $10,000 and $12,000.

116Ms. Perri paid for the taxes and utilities for the matrimonial home. She lived in the home with the children. The amount of child support to be paid at that time was in flux. I find that after separation both Mr. Perri and Ms. Perri made payments that in effect preserved their matrimonial home as a joint asset, provided safe accommodation for the children and contributed to the children’s up keep. Under these circumstances neither party shall receive credit for the amounts they paid to achieve these mutually beneficial objectives.

Charging Order

117Ms. Perri requests a charging order on the Arrowpoint property until Mr. Perri complies with the orders of this court. While I have expressed concerns about Mr. Perri’s credibility on certain matters there is no basis for this court to conclude that he will not comply with the orders of this court. In addition, Mr. Perri asserts that such an order will cause him financial hardship. Therefore, Ms. Perri’s request for a charging order is denied.

Costs

118The parties shall serve and file a two-page cost outline within 15 days.

Barnes, J.

Released: September 16, 2016