Court File and Parties

COURT FILE NO.: FS-19-96679 DATE: 2022 03 24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Piotr Jasiobedzki Applicant – and – Ewa Jasiobedzka Respondent

Counsel: Sasha Farone, for the Applicant Andrea Clarke, for the Respondent

HEARD: January 18, 19, 20 and 21, 2022

Chozik j.

[1] This trial comes six years after the parties separated. They were married for 38 years, since 1977. They separated on April 5, 2015. The Applicant (“Husband”) is 65 years old. The Respondent (“Wife”) is 66 years old.

[2] The main issues to be decided are the quantum and duration of ongoing spousal support, whether retroactive spousal support is owed by the Husband to the Wife and, if so, how much. The Husband also asks that his pension be divided upon his retirement, rather than the date of separation. He claims occupation rent.

[3] The parties agree, in an Agreed Statement of Facts, that they had a “conventional marriage”. The Husband was the main (if not only) financial earner for the household, while the Wife was responsible for running the household and carried the main family responsibilities.

[4] The Husband accepts that he has a spousal support obligation to the Wife.

[5] For the reasons that follow, I have decided that ongoing spousal support shall be in the Spousal Support Advisory Guidelines (“SSAG”) mid-range, in the amount of $5,979 per month. The Wife’s entitlement to spousal support is indefinite, but the quantum shall be subject to a review upon the Husband’s retirement. I find that the Husband owes the Wife a “catch up” of $36,433 for ongoing spousal support since January 7, 2020.

[6] I also find that the Husband owes retroactive spousal support going back to the fall of 2017. I direct the parties to discuss and try to agree on the quantum. In the event that they are unable to agree, I invite the parties to make brief written submissions as to the quantum and the tax consequences of both lump sum payments.

[7] The Husband’s pension shall be divided as of the date of separation. His claim for occupation rent shall be dismissed.

Background

[8] The parties met as teenagers and married on April 21, 1977 in Poland.

[9] Sometime in the late 1980s, the parties and their two children (now adults) emigrated from Poland to the United Kingdom (U.K.). There, the Wife worked part-time, while the Husband worked full-time at the University of Manchester. The Husband was then offered a position at the University of Toronto. In 1991, they immigrated to Canada.

[10] Prior to the family emigrating from Poland in the 1980s, the Wife worked as a primary school teacher. She has a Master’s degree in Chemistry. The Husband holds a Ph.D. in Mechatronics, Robotics and Automation Engineering from Warsaw University of Technology in Poland. Since 1995, he has worked for the same employer, a large aerospace company in Brampton, as a staff scientist.

[11] It is not disputed that the Husband was the sole income earner for the family for decades. Both during the marriage and post-separation, the Wife was completely dependent on the Husband financially.

[12] It is not disputed that in Canada the Wife had a very hard time finding a job. Two years after their arrival, the Wife secured part-time employment in a lab at the University of Toronto.

[13] Within a few months of starting her job, as a result of her mental health, the Wife could no longer work. She was under the care of a psychiatrist at a hospital for a time in 1993, and multiple times since then. She testified that she was diagnosed with Post Traumatic Stress Disorder, Major Depressive Disorder, and Generalized Anxiety Disorder. She has been treated as an in-patient and an out-patient at mental health facilities multiple times. Post-separation, she spent several months at an in-patient treatment facility.

[14] With the exception of a few months in 1993, the Wife has not worked in more than 30 years.

[15] The Husband was diagnosed with cancer in 2011. He underwent radical prostatectomy in March 2011, followed by adjuvant radiation therapy in 2012. I accept his evidence that, at times, he has been exhausted and found working difficult. He would like to retire soon but has not retired because of the financial uncertainty posed by the breakdown of the parties’ marriage.

[16] During the marriage, the parties had one joint chequing account and three joint credit cards for daily expenses. The Husband’s paycheque was automatically deposited into the joint bank account from which he paid all of the family’s expenses. The Husband was responsible for all of the parties’ financial decisions. He contributed to his and the Wife’s Registered Retirement Savings Plans (RRSPs) and made all other investment decisions. The parties lived frugally. Paying off the mortgage and paying for their children’s education were their priorities.

[17] The parties separated on April 5, 2015. The Husband left the matrimonial home and moved into a motel, then rented accommodations. After the separation, he continued to have his paycheque automatically deposited to the parties’ joint bank account. He paid for his expenses and expenditures, including credit card bills, from the joint account. He also paid any expenses incurred by the Wife. He continued to pay the household expenses, including property taxes, insurance, and utilities for the matrimonial home (approximately $1,104.33 per month). He paid for maintenance and repairs to the house.

[18] This financial arrangement continued for five years post-separation, until March 2020.

[19] In the post-separation period from April 9, 2015 until February 20, 2020, the Husband deposited $470,467.75 net after tax into the joint bank account.

[20] In anticipation of this trial, the Husband and Wife each analysed the various bank and credit card statements over the five years since their separation. According to the Husband, of the $407,467.75 deposited into the joint account, $310,742.67 was used for his benefit and $159,725.08 was used for the Wife’s benefit in lieu of formal spousal support. According to the Wife, the amount used for her benefit was $144,609.

[21] Both parties testified that they did not discuss the use of the joint account or credit cards after their separation. They first spoke about formalizing their separation in the fall of 2017. It is not disputed that during that conversation, they agreed they had to “move on”, that they did not plan to get back together, and that ‘moving on’ included a plan to sell the house, put a separation agreement in place, and divorce. No specific timelines were discussed. Though spousal support was not expressly discussed, the Husband testified he understood that spousal support would be paid once the separation was formalized.

[22] The next time the parties discussed formalizing their separation was in the spring of 2019. The Husband raised the topic again, and the Wife asked the Husband to make her a proposal. The Wife then retained a lawyer to assist her with a separation agreement. Emails were exchanged, including an email the Husband sent to the Wife’s lawyer on April 11, 2019. In that email, he proposed specific terms for a separation agreement including quantum and duration of spousal support.

[23] In the fall of 2019, the Husband pressed for the sale of the matrimonial home. Both parties retained lawyers.

[24] On December 4, 2019, the Husband filed the Application, seeking a divorce, equalization, and an Order for partition and sale. The Wife filed her Answer on January 7, 2020, in which she makes a claim for ongoing and retroactive spousal support. A case conference was held on February 28, 2020. The parties entered into Minutes of Settlement following the case conference that, amongst other things, provided for the Husband to pay $5,000 per month in interim spousal support commencing March 10, 2020 and on the first of every month thereafter. He has paid this support without fail.

Analysis

Ongoing Spousal Support: Quantum and Duration

Positions of the Parties:

[25] It is agreed by the parties that the Wife is entitled to spousal support. The parties agree that for support purposes, the Husband’s income is calculated based on his line 150 income set out in his Notices of Assessment, less deductions for his Registered Pension Plan (“RPP”) and Union/Professional Dues, which appear on his T4s. They do not agree on duration or quantum, or whether income should be imputed to the Wife.

[26] The Husband argues that support should be fixed at the mid-range SSAG calculation. He also asks that an income of $9,516 be imputed to the Wife because she could be receiving Canada Pension Plan (“CPP”) and Old Age Security (“OAS”), but has chosen not to apply. Based on these figures, the Husband argues that mid-range spousal support would be not more than $5,632 per month.

[27] The Husband argues that spousal support should terminate when he retires. He intends to retire as soon as possible. He takes the position that, once his pension is divided, ongoing support should terminate because the Wife will have half of his pension, RRSPs, and her share of the proceeds from the sale of the matrimonial home (approximately $191,000), plus any income from CPP and OAS to sustain her.

[28] The Wife argues that spousal support should be in the high range, set at $6,802 per month, and that it should be indefinite. She disputes that any income should be imputed to her. The Wife submits that there ought to be a review of the quantum of support once the Husband retires and both parties’ retirement incomes are known.

Entitlement:

[29] Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of an order for spousal support, which, according to s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), are to:

a. Recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown; b. Apportion between the spouses any financial consequences arising from the care of any child over and above any obligation for the support of any child; c. Relieve economic hardship of the spouses arising from the breakdown of the marriage; and d. Promote economic self-sufficiency of each spouse within a reasonable period of time.

This is consistent with the concept of marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support: Bracklow v. Bracklow, [1999] 1 S.C.R 420, at para. 20.

[30] It is critical for the court to determine all grounds for entitlement because the basis for entitlement may significantly impact quantum and duration of spousal support: see e.g., Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81, at para. 64. A strong compensatory claim will be a factor for a higher SSAG range: s. 9.1 of the SSAG; see also Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84, at para 54.

[31] Compensatory support is premised on a marriage being a joint endeavor. It seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage: Poirier v. Poirier, 2010 ONSC 920, 81 R.F.L. (6th) 161, at para. 47.

[32] Having regard to all the circumstances of these parties, I am of the view that the Wife has a compensatory claim for spousal support. Although the Husband supported the Wife, in this ‘conventional’ marriage, her education, career development, and earning potential were impeded as a result of the marriage (in part) because she withdrew from the workforce to provide care for the children and family. Her career development was negatively affected by the move from the U.K. (where she was working) to Canada (where she had a hard time finding a job) in order for the Husband to work at the University of Toronto.

[33] A support obligation may also arise when a spouse is unable to become self-sufficient. Entitlement can be based on need, where a spouse experiences economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. Needs-based support could, therefore, consider the recipient’s inability to become self-sufficient for reasons such as health.

[34] In my view, the Wife also has a significant needs-based claim for support because she is not able to become self-sufficient due to her age and health. For more than half of her life, the Wife was entirely financially dependent on the Husband. She has not worked in three decades. I find that in her circumstances, and with her significant mental health concerns, it is not reasonable to expect that the Wife will become self-sufficient.

Quantum:

[35] Because this is a long-term marriage, the goal in setting the quantum of ongoing spousal support is to arrive at a roughly equal distribution of net disposable income (“NDI”) between the parties.

[36] The Husband’s income for support purposes in 2020 is agreed to be $156,255. Based on the Wife’s income of $0, SSAG mid-range support is $5,979 per month, resulting in a NDI split of 52.3% for the Husband and 47.7% for the Wife. SSAG high range support is $6,802, with a corresponding NDI split of 46.8% to the Husband and 53.2% to the Wife.

[37] In my view, monthly spousal support ought to be in the mid-range, at $5,979 per month.

[38] The only reason articulated on behalf of the Wife for high level support was that she has ongoing costs of medication for her anxiety and depression. However, no evidence was put forward by her as to what those costs are.

[39] Evidence as to the costs of the Wife’s medication came from the Husband. He testified he looked up on his insurance plan what medications the Wife was taking, based on her submissions to the plan. He then looked up whether those medications were covered by the Ontario Drug Benefit Plan (“ODBP”). Most of them were. He testified that the annual cost of the ODBP is $100 and $6 for each eligible prescription. His evidence on this point was not challenged. Given that she could join the ODBP, I find that the cost of the Wife’s medications is not so significant as to justify high range support. She adduced no evidence as to her medical expenses.

[40] I have also considered that the Husband incurred considerable costs for cancer treatment in the past and may face those costs in the future as he pursues various treatment options.

[41] An award in the high range of SSAG would result in the Wife getting more than half of the net disposable income. In my view, she has not established a principled or practical reason to justify this.

[42] I decline to impute income to the Wife for support purposes. The Wife acknowledged in her evidence that she is eligible for CPP and OAS. She testified that she has not applied for those benefits because she was advised by a financial planner that it is financially advantageous to her to delay receiving that income until a future date. I accept her evidence in this regard. It was unchallenged.

[43] No authority was put forward by the Husband for the proposition that the Wife is obliged to claim those benefits just because she is eligible, especially when it would be a financial disadvantage to her. I see no principled reason to impute this income to her now, though at some point there may be.

[44] In all the circumstances, mid-range ongoing support of $5,979 is fair, based on the Husband’s 2020 income of $156,255 and the Wife’s income of $0.

Duration:

[45] As set out above, the Husband argues that spousal support should terminate when he retires. I disagree.

[46] This is clearly a case where the Wife is entitled to support indefinitely. This was a 38 year conventional marriage, where the Wife was entirely financially dependent on the Husband. The SSAG ‘Rule of 65’ applies where the total years of cohabitation plus the recipient’s age totals 65 or more. If this rule is satisfied, the SSAGs provide for indefinite support (if the marriage is five years or longer).

[47] The Husband intends to retire as soon as possible. Given his age, health, and length of employment, it is not unreasonable for him to retire. But given the length of the marriage, the overwhelming strength of the Wife’s spousal support entitlement, her complete life-long financial dependence on the Husband, and her age, mental health concerns and inability to become self-sufficient, the Wife is entitled to ongoing support after he retires. The quantum of support may change based on their retirement incomes, but her entitlement does not.

[48] Retirement is anticipated, and soon. The parties did not adduce any evidence as to their anticipated retirement incomes at this trial. I am of the view that the quantum of spousal support ought to be subject to a review once the Husband retires and the parties’ post-retirement incomes are known. A review would take into account the Husband’s income based on his pension, RRSPs, and any other income available to him. It would also take into account the Wife’s income based on her share of the Husband’s pension, her RRSP income, CPP, OAS, and any other sources of income available to her at that time. Frankly, this evidence should have been adduced at this trial to save the parties having to engage in another proceeding.

[49] On the review, neither party need establish a material change.

[50] In conclusion, I find that the Wife has a strong compensatory and needs-based entitlement to spousal support. I find that ongoing spousal support should be at the SSAG mid-range of $5,979 per month, commencing on January 7, 2020 (the date the Answer was filed). The ongoing spousal support shall be indefinite, subject to a review of the quantum upon the Husband’s retirement.

[51] Pursuant to Minutes of Settlement entered into by the parties on February 28, 2020, the Husband has paid $5,000 per month in spousal support since March 10, 2020. From March 10, 2020 until March 31, 2022, a total of 25 months, he will have paid a total of $125,000. He ought to have paid $5,979 for 27 months, or a total of $161,433 (the additional two months arising between the time the Answer was filed and the time Minutes of Settlement were entered into). Therefore, he owes the Wife $36,433 as ongoing support for the period of January 7, 2020 to March 31, 2022. This is a “catch up” amount that reflects the monthly support he should have paid as of March 10, 2020.

[52] There may be tax consequences as a result of this finding that a lump sum “catch up” amount is owing. I direct counsel to communicate with each other to see if they can agree on the net amount that should be paid bearing in mind those tax consequences. If they are unable to agree, I am prepared to receive written submissions as directed below with respect to the tax consequences of this lump sum payment and the net amount that should be paid.

Retroactive Support:

Positions of the Parties:

[53] The Wife claims spousal support retroactive to the date of separation on April 5, 2015. The Husband argues that no retroactive support is owing for any time prior to the Answer being filed because (a) he had no notice of a spousal support claim until then and (b) he paid for the Wife’s expenses and the carrying costs of the matrimonial home (approximately $1,104.33 per month) and other expenses for five years post-separation. He argues that the money used for the Wife’s benefit from the joint bank account was in lieu of spousal support.

[54] The parties agree that if a retroactive award is made, it ought to be offset by the amount the Wife already received during the separation.

Applicable Principles:

[55] The start date for support is ordinarily the date “formal notice” of the claim is given, unless there is reason to order otherwise: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 207-12; Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, at para. 114 (c). Formal notice is the date a claim is issued.

[56] The start date can also be when “effective notice” of a claim for support is given. Effective notice is any indication by the recipient that support should be paid, or if it already is, that the current amount needs to be renegotiated. For effective notice, all that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 5 and 121; Colucci, at para. 114.

[57] An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given: D.B.S., at para. 123; Colucci, at para. 93.

[58] The legal principles in respect of retroactive claims for child support are applied and modified as necessary in cases of spousal support: Kerr v. Baranow, at para. 207; D.B.S., at para. 76. The factors to be considered are similar in both types of claims. These factors include the needs of the recipient, conduct of the payor, reason for the delay in seeking support, and any hardship on the payor: Kerr v. Baranow, at para. 207; Bremer v. Bremer (2005), 13 R.F.L. (6th) 89 (Ont. C.A.), at para. 9; Colucci, at paras. 113-14.

[59] Concerns about notice, delay, and misconduct generally carry more weight in relation to claims for spousal support than child support: Kerr v. Baranow, para. 208. This is because spousal support has a different legal foundation than child support. There is no fiduciary relationship of presumed dependency in a spousal relationship. Unlike child support, entitlement to spousal support is not “automatic”. Unlike child support cases, where the “payor parent is or should be aware of the obligation to provide support commensurate with his or her income”, separated spouses are not obliged to look after the other’s legal interests: Kerr v. Baranow, para. 208.

[60] Delay does not bar a claim for spousal support provided there is a reason for the delay and the events that have transpired since the delay: Walker v. Greer (2003), 44 R.F.L. (5th) 257 (Ont. S.C.), at para. 35.

[61] Extreme delay in claiming support can diminish or defeat a claim. It may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse. The longer the delay, the greater the need to offer a compelling explanation for the delay because of the increasing presumption of financial independence and clean break. It may also affect quantum of support: Karlovic v. Karlovic, 2018 ONSC 4233, 12 R.F.L. (8th) 325, at para. 70.

[62] Courts are obliged to examine whether the reason for delay in bringing the claim is understandable, not whether there was a reasonable excuse for the delay: Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, at para. 111; McIntyre v. Garcia, 2021 ONCJ 29, at para. 35. A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice a claim for retroactive support: Michel, at para. 113; McIntyre, at para. 36.

[63] The ultimate decision to order retroactive support is discretionary. A court may depart from the presumptive date to prevent unfairness: Colucci, at para. 114 (d). In Kerr v. Baranow, at para. 211, the court said that the decision to order a retroactive award should be “the product of the exercise of judicial discretion in light of the particular circumstances.”

Application:

[64] Ultimately, the decision to order retroactive support is concerned with fairness. In determining whether to award retroactive spousal support, I must consider what is fair to the Husband and what is fair to the Wife. In this case, I find that the Wife was clearly entitled to support from the date of separation. The Husband supported her informally, by paying the bills and her expenses as he had during the marriage. However, the quantum that she ultimately received was a fraction of what she was entitled to. I find that she lived in poverty, afraid to ask for more.

[65] I find that the Husband knew he was obliged to support the Wife, but had no indication from her that she was dissatisfied with their informal arrangement or the quantum she was receiving.

[66] The Wife did not give formal notice of her claim for support until January 7, 2020, when the Answer was issued. In deciding whether retroactive support is owing, I must determine whether there was an earlier effective date of notice.

[67] I find that there was. When the parties discussed formalizing their separation in the fall of 2017, they had “broached” the subject of support indirectly. From that conversation, the Husband knew the Wife had a claim to spousal support. His email to her lawyer, albeit more than 18 months later, confirms he knew she had a claim to spousal support.

[68] The Wife argues that retroactive support should date back to the date of separation. But at the time of the separation, there was no indication whatsoever that the Wife claimed spousal support (though her entitlement was obvious). The law is clear: entitlement alone is not sufficient notice of a claim: Kerr v. Baranow, at para. 208. There has to be something more to make out effective notice.

[69] Effective notice came in the fall 2017 conversation. The Husband testified he thought spousal support was part of the package of selling the house, dividing the assets, and getting a divorce. The Husband testified that it was “obvious” to both him and the Wife when they first started talking about the separation and signing an agreement, that support was payable once she moved out of the house. This conversation first occurred, according to both the Husband and the Wife, in the fall of 2017. Based on that conversation, I find that the Husband had effective notice of the Wife’s claim for spousal support as of the fall of 2017.

[70] I find that the Husband’s lack of understanding of the law around spousal support does not mitigate his obligation to pay or his effective notice of the claim. There are any number of reasons people have incorrect impressions or assumptions of family law. Ignorantia juris non excusat - ignorance of the law excused not. What is critical is that the subject of spousal support was broached indirectly, and that the Husband had effective notice that the Wife had a claim to spousal support as of that date. Likewise, the Wife’s ignorance of the law is not an excuse for not having given notice of her claim earlier.

[71] There was considerable delay between the formal notice and the effective notice of the claim. I have examined the reasons for the delay and considered whether the delay is understandable. I am satisfied that the Wife has explained the delay. She lacked the emotional means to make the claim for support.

[72] As per Michel, at paras. 85-86, “lack of emotional means” to make a formal claim for support is a relevant consideration when examining reasons for delay in bringing a child support claim. Lack of emotional means is no less relevant in this case to bring a spousal support claim.

[73] In this case, the Wife was in a mental health facility as an in-patient twice post-separation. Her mother died and she then spent six months in Poland as a result. Her emotional fragility was obvious when she testified before me. The Husband testified that, after their separation, the Wife continued to rely on him for practical assistance with life events such dealing with home repairs, minor fender benders, and paying bills. The parties had also pursued a resolution of their financial issues with a separation agreement. This out of court resolution also took time.

[74] While I do not find any blameworthy conduct by the Husband, the delay in proceeding with formalizing the separation arrangements lies with him as well. He was clearly content to maintain the status quo for many years. It was cheaper for him to do it that way, rather than pay the Wife half of his net disposable income.

[75] The Husband argues that the Wife had no need for retroactive support. He testified the Wife could use whatever money she wanted. He testified they both had “equal rights” to access the joint account where his salary was deposited. I do not accept his evidence in this regard.

[76] It is clear from the bank records that money was used by the Husband to pay the joint credit card bills and other expenses. Sometimes, after these expenses were paid, there was little money left for the Wife to access. Most of the money was spent by the Husband on himself. Even by his calculations, he used $310,742.67 of the $407,467.75, or 76% of the money deposited into the joint account. Of the monthly amount that remained for the Wife, $66,259.80 (or almost half) went towards expenses associated with the matrimonial home (property tax and insurance, averaging $1,104.33 x 60 months). Ultimately, the Husband got some value from those expenditures: the property increased in value and he shared in the equity.

[77] The Wife testified she was very frugal and afraid to use the money in the joint account. She testified that she worried that if she took too much, the Husband would cut off her access to the funds and she would end up homeless. The Wife’s friend, Louvette Linda Lownds, testified and confirmed that the Wife had conveyed to her that she had this fear. Ms. Lownds also testified the Wife lived very frugally. I accept this evidence as the accounting done by the parties shows that she had very little to live on.

[78] I find that the Wife has established that she had significant need for support even though she did not ask for more at the time or access any capital from the sale of the matrimonial home. Why she did not ask for more money is readily apparent from the evidence: she lacked the emotional means to do so and had no idea as to her entitlement to support. I accept her evidence that her fear of being “cut off” from financial support and becoming homeless was genuinely held by her.

[79] I conclude that the Wife is entitled to retroactive spousal support. The Husband had effective notice of the claim in the fall of 2017, when they first talked about formalizing their separation. The effective notice date falls within the three year rule for retroactive claims.

[80] The parties did not specify a date when this conversation occurred. I direct the parties to communicate and try to agree on when this conversation took place. If they are unable to agree, I invite the parties to file brief affidavits on this point only or make written submissions, as directed below.

Credit for Informal Support Paid:

[81] The parties agree that the Husband should be credited with the amount used by the Wife from the joint bank account.

[82] The Wife calculated that, of the $407,467.75 deposited into the joint bank account, $144,609 (not $159,725.08 as calculated by the Husband) was for her benefit. She testified that the main difference between her calculations and the Husband’s calculations arose from:

(a) Assignment of her expenses for March 1 to 10, 2020. Minutes of Settlement entered into by the parties on February 28, 2020 required the Husband to pay those expenses, but he had not, so she assigned those expenses to him in her calculations. The Husband did not challenge her evidence on this point. (b) Assignment of the household and other expenses. The Husband had assigned all of the Bell, Netflix, house repairs, and other household expenses including property taxes and insurance for the matrimonial home to the Wife. The Wife’s calculation reapportioned the Husband’s share of some of these expenses. (c) The Wife’s calculations take into account reimbursement the Husband received from his insurance plan for some of the Wife’s medical expenses.

[83] I accept the Wife’s calculations of the amount that was used for her benefit and find that this amount was $144,609.

[84] I direct counsel to recalculate the amount of retroactive support owing from the date of the fall 2017 conversation to January 7, 2020, based on the evidence submitted at trial of the Husband’s annual income for 2017, 2018, and 2019 using mid-range SSAG calculations.

[85] There may be tax consequences as a result of the finding that a lump sum retroactive award is owing. As with the lump sum “catch up” payment, I direct counsel to communicate with each other to see if they can agree on the net amount that should be paid bearing in mind those tax consequences.

[86] If the parties are unable to agree on any of the outstanding issues, I am prepared to receive written submissions not exceeding five double-spaced pages. The written submissions are to be exchanged by the parties, served and filed no later than April 14, 2022.

Division of the Husband’s Pension:

[87] The parties agree that the Family Law Value of the Husband’s pension is $157,988.14. They agree that the pension must be divided. The Husband argues the pension ought to be divided as of the date of his retirement. The Wife argues it should be divided as of the date of separation, as it normally is.

[88] The Husband has not provided any evidence, substantive submissions, or legal authority for the proposition that the pension should be divided as of the date of his retirement. This would be a significant departure from how assets, including pensions, are dealt with under the Divorce Act. I see no justification for this. Section 8(2) of the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II, specifies that the period of division relates to the period the couple co-habited. Therefore, the Family Law Value of the pension shall be divided equally as of the date of separation, April 5, 2015.

Occupation Rent:

[89] The Husband claims he is entitled to occupation rent in the amount of $87,457. He calculated this amount based on the following: average rent for accommodations comparable to the three-bedroom matrimonial home ($2,691 per month), shared equally by the parties for 65 months (April 2015 to September 2020).

[90] A claim for occupation rent is brought under s. 122(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states:

An action for an accounting may be brought by a joint tenant or tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant’s just share.

[91] In Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49, the Ontario Court of Appeal set out the factors used to determine occupation rent in a family law context:

a. The timing of the claim for occupation rent; b. The duration of the occupancy; c. The inability of the non-resident spouse to realize on his or her equity in the property; d. Any reasonable credits to be set off against occupation rent; and e. Any other competing claims in the litigation.

[92] In Higgins v. Higgins (2001), 9 R.F.L. (5th) 300 (Ont. S.C.), at para. 53, this court identified the following relevant factors:

a. The conduct of the non-occupying spouse, including the failure to pay support; b. The conduct of the occupying spouse, including the failure to pay support; c. Delay in making the claim; d. The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home; e. Whether the non-occupying spouse moved for the sale of the home, and if not, why not; f. Whether the occupying spouse paid the mortgage and other carrying charges of the home; g. Whether children resided with the occupying spouse, and if so, whether the non-occupying spouse paid, or was able to pay, child support; h. Whether the occupying spouse has increased the selling value of the property.

[93] Where the property is a matrimonial home, a claim for occupation rent by one spouse against the other will only be granted in exceptional cases. To qualify, the spouse not in possession must show that the remedies to gain possession of the property, to receive payment from the spouse in possession, or support from him or her under the FLA, are either not available or insufficient to render justice between the parties: Fofffano v. Foffano (1996), 24 R.F.L. (4th) 398, at para. 26.

[94] In this case, the Husband’s claim for occupation rent must fail. First, he failed to pay spousal support. While he provided for some of the Wife’s living expenses informally, I accept her evidence that she was living very frugally, anxious about her financial situation, and did not access funds deposited by him into the joint account freely because she worried that his support could end if she took too much. She had no choice but to remain in the home until she started receiving spousal support.

[95] Second, the Husband contributed to the delay in listing and selling the home. He moved out of the home in April 2015. It is not disputed that the first time he spoke to the Wife about the possibility of selling the home was in the fall of 2017. He telephoned the Wife and told her he had met someone else, and that he would like to formalize their separation. There was some vague indication during that conversation that he would like to move forward with a divorce and the sale of the home and other things. She did not disagree. He then did nothing.

[96] The next time he raised selling the home was two years later.

[97] In December 2019, the Husband started this Application. He made a claim for occupation rent in his Application, but his claim only dated to October 2019. In my view, this confirms that his intention to sell the matrimonial home did not crystalize until October 2019.

[98] I do not accept the Husband’s claim that the Wife unreasonably delayed the sale of the home. At a case conference on February 28, 2020, the parties entered into Minutes of Settlement which provided for the selection of a listing agent and then a schedule for the sale of the home. The Wife did delay the selection of the listing agent, but ultimately one was selected, and the home was listed in July 2020. It sold within a week and the sale closed in September 2020.

[99] While the listing and sale could have proceeded faster, just over four months to list and sell a home is not an unreasonable timeframe. This had been the family home for decades. It was the parties most significant asset. A delay of four months to list and sell a matrimonial home is not atypical in family law cases. It is a reasonable time frame.

[100] I find that the delay from 2015 to 2019 cannot be attributed to the Wife alone. The Husband acquiesced to the delay.

[101] I accept his evidence that from 2017 to 2019, he did not force the issue, at least in part, out of compassion for the Wife. At the same time, he cannot sit on his hands, do nothing to move the sale of the home forward and then claim occupation rent. His failure to pay spousal support, so the Wife had no choice but to stay in the matrimonial home, also weighs the equities heavily against his claim for occupation rent.

[102] Ultimately, I am not satisfied the Wife received more than her “just share”: s. 122(2) of the Courts of Justice Act. The proceeds from the sale of the home will be shared equally between the parties, subject to adjustments. The Husband got the benefit of the increase in value of the home from the date of the separation in 2015 to the sale of the home in 2020. His contribution to the upkeep of the home was minimal: he paid property taxes and insurance. The mortgage was paid off prior to separation. In the calculation of the retroactive support owing, half of the expenses (property tax and insurance) were apportioned to the Wife. Occupation rent in addition to this would be unfair.

[103] The Husband complains that the proceeds from the sale are held in a non-interest bearing account and that both parties are “losing money” as a result of the Wife’s refusal to agree to release the funds. I give no effect to this complaint. Equalization was settled on the eve of this trial. There is a retroactive spousal support award owing by the Husband to the Wife, which is to be paid out of those proceeds. I find that there were good reasons to hold that money in trust until all of the financial issues between the parties were finalized.

[104] Lastly, even if occupation rent was owing, I do not accept the Husband’s calculation of the amount. The comparable rent rate he used was for a three-bedroom home, like the matrimonial home. Had the Wife received spousal support, and the matrimonial home been sold earlier, she would not have been living in a three-bedroom home. She now lives in a room in a friends’ home for which she pays rent of $500.

[105] His claim for occupation rent, as set out in his Application, was retroactive to October 2019, not April 2015. If any occupation rent were owing, it would only be to October 2019. It would be much less than the $87,457 he calculated retroactive to April 2015.

[106] For these reasons, the Husband’s claim for occupation rent is dismissed.

Conclusion – Order to Issue:

[107] In conclusion, the following shall be incorporated into an Order:

a. The Husband shall pay monthly ongoing spousal support of $5,979 per month commencing January 7, 2020; b. The Husband shall pay to the Wife $36,433 for ongoing “catch up” support owing for the period of January 7, 2020 to March 31, 2022, subject to adjustment to account for taxes as agreed to by the parties or directed by the court; c. The quantum of the ongoing spousal support obligation may be reviewed at the request of either party upon the Husband’s retirement without the requirement to show a material change in circumstances; d. The Husband shall pay to the Wife retroactive spousal support, retroactive to a date in the fall of 2017 to be agreed upon by the parties or set by the court, in SSAG mid-range amount based on his annual line 150 income, less $144,609, subject to adjustment for taxes as agreed to by the parties or directed by the court; e. If the parties are unable to agree on any of the outstanding issues, they shall prepare, serve and file written submission, not longer than five double spaced pages, by April 14, 2022; f. The amounts owing by the Husband to the Wife, plus any costs award, shall be deducted from the Husband’s share of the net proceeds of sale of the matrimonial home, which may be released to the parties; g. The Husband’s pension, having a Family Law Value of $157,988.14 as of the date of separation, shall be divided as of the date of separation (April 5, 2015); h. The Husband’s claim for occupation rent is dismissed.

Costs:

[108] The parties are encouraged to agree upon appropriate costs for this Application. If the parties are not able to agree on costs, each may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs) by 4:30 pm on April 22, 2022.

[109] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

[110] If I have not received submissions by 4:30 pm on April 22, 2022 from either party, I will infer that the party who did not submit does not wish to make submissions and I will decide on the basis of the material that I have.

E. Chozik Electronic signature of Chozik J. Released: March 24, 2022