AMENDED - CITATION: Sarkozi v. Pereira, 2012 ONSC 4011
COURT FILE NO.: D853/09
DATE: 2012/07/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMEA SARKOZI
Applicant
– and –
PAUL PEREIRA
Respondent
Yolanta Lewis, for the Applicant
Self Represented
HEARD: October 24, 25, 26, 27, 28, 2012, December 19, 2011, January 10, 12, 13, March 1, 2, and March 23, 2012. Final written reply submissions of applicant received April 26, 2012.
TURNBULL, j.
Introduction
[1] The applicant and respondent are both 43 years of age. The parties began co-habiting in 2000 and were married June 16, 2001. It was the first marriage for both of them. They had two children during their marriage: Alexander was born May 23, 2004, and Miguel was born April 29, 2006.
[2] The children reside with the applicant and her new partner in the community of Aldershot, located in the most westerly part of Burlington. Fortunately for them, their parents have been able to work out an access plan which allows the boys to spend approximately 5 out of every 14 days with their father for overnight visits.
[3] I was advised at the outset of this trial that the issues for the court to consider are:
a. whether a divorce should be granted;
b. how the equalization of Net Family Property should be carried out;
c. what amount of retroactive and ongoing child support is due, if any;
d. what amount of retroactive and ongoing extraordinary expenses under s. 7 of the Federal Child Support Guidelines is due, if any;
e. whether the respondent’s claim under s. 9 of the Family Law Act on a retroactive basis can succeed;
f. whether the applicant should be obliged to contribute to the carrying costs of the matrimonial home; and
g. whether any disposition costs related to the sale of the respondent’s home (the former matrimonial home) should be taken into account.
Overview of the Facts
[4] Until the marriage unravelled, the applicant, the respondent, and their children were living in a home which the respondent had purchased around 1992. When the marriage fell apart, the applicant left that home and took Alex and Miguel with her. They moved in with her parents for a short time and then rented an apartment in the City of Hamilton. In August 2010, they moved to a residence in Burlington which she and her new partner had purchased.
[5] The applicant has worked most of her professional career as a financial planner. She became a Certified Financial Planner in 1998 and obtained her Canadian Securities designation in 1999. She worked with a number of firms in the 1990s until she opened her own business in 1999. She has worked from the same office in Burlington since that time pursuant to an Associate agreement (exhibit 5) with Donro Financial which has its head office located in St. Catharines Ontario. The applicant sells mutual funds, life and disability insurance products and securities in segregated funds.
[6] The applicant explained that in 1999, she bought a book of clients from Barrington Simon, a former colleague with her former firm, the Investment Tax Planning Group. The clients were all mutual fund account holders. She paid trailer fees to Mr. Simon for two years and a share of commission on any new business that arose from those clients for one year. She could not recall having generated any new business or referrals from Mr. Simon’s base of clients. Today, she estimated that she has kept about 10 per cent of those clients.
[7] The applicant explained that she had worked hard to build her business by upgrading her qualifications, networking, writing publications, and doing the multitude of things common to self promotion. She explained that when her son Alex was born in May 2004, she was off work until January 2005. She then restricted her return to work on a part-time basis because the respondent encouraged her to prioritize her family. She explained that she did not lose any clients in that period because she was fortunate to have an able assistant. Later in 2005, she became pregnant with Miguel and tried to work up to the time of his birth at the end of April 2006. However, she had to slow down considerably prior to his birth because of a difficult pregnancy. Once again, she was off work from May 2006 to December 31, 2006, due to her familial responsibilities. She maintained her book of clients but was unable to grow her business in that time.
[8] The applicant indicated that in 2007, she returned to work full time after the parties agreed to put the boys in daycare. Alex has been registered in Imagineers Daycare and Miguel initially received private day care. The applicant testified that she has paid the amounts shown in exhibits 13 for Imagineers’ daycare from January 2009 to August 27, 2010. That was not seriously contested and I accept her evidence. She has also summarized the payments to the YMCA after school daycare in Aldershot she has made and anticipates making from September 2011 to June 2012. I accept that evidence. After their separation, the applicant left the home. She then established a personal relationship with David Loveland and in July 2010, she and the children began residing with him in a home in Aldershot where they now reside. Since that time, the children have attended school near that residence. The home is well within the 25 km radius specified by the October 25, 2010, order. The respondent estimated that the distance from his home to that residence and/or their school is approximately 13 kilometers each way.
Employment History of the Respondent
[9] The respondent has considerable expertise in the IT field as it relates to the configuration and operation of computers and computer systems. When the parties met, he was employed by the Hamilton Separate school systems. He was downsized from his job in May 2004, 10 days before Alex’s birth. He remained out of work during the period that the applicant remained at home after Alex’s birth and took some courses to enhance his IT career. He was also able to earn some money from a side business in the IT field. In due course, after doing a contract job for a client, he was hired by the Canadian Society for Medical Laboratory Services. He worked for that company until his job was terminated in July 2010. He received Employment Insurance benefits and when they expired, he decided to return to school to upgrade his qualifications. He anticipates finishing his studies in September 2012 and testified that he hoped to procure a well paying job shortly thereafter. I find this course of action on his part to be reasonable and responsible and Ms. Lewis did not seriously dispute that in her very fair cross-examination of the respondent.
[10] The respondent’s financial statement dated October 3, 2011, stated that his monthly income was $1,980.33 and his monthly expenses were $2,058.83 without allowing anything for child support obligations. In his testimony, the respondent varied those figures slightly (as evidenced in exhibit 67, the affidavit of Lori Pealow) due to a reduction of benefits received in November 2011 According to the Federal Child Support Guidelines, this would place his annual income at the time he testified at about $14,000 per year.
The Legal Proceedings
[11] After the separation of 2008, the parties had 22 mediation sessions from May 2008 to February 2009. The mediation report was entered as exhibit 71. Over the 22 mediation sessions, the parties were able to work out the details of time sharing for their holidays and many aspects of parenting. The terms in the mediation report were incorporated in the applicant’s offer to settle and ultimately, with minor changes, incorporated in the order of McLaren J. of October 22, 2010.
[12] The parties were unable to resolve the financial issues arising from the separation, which led to this protracted trial.The applicant started court proceedings in the spring of 2009 after the mediation broke down. Between March 2008 and September 2009 when the case conference took place, the respondent paid $300 per month in child support. This sum is rather lean in view of the fact that in 2008 and 2009, the applicant’s daycare costs alone came to about $1,100 per month.
[13] The first order in this matter was made on consent at the case conference of September 22, 2009, where the respondent agreed to begin to pay guideline child support commencing October 1, 2009, in the amount of $1,037 per month. He paid the $1,037 per month until September 2010. In July 2010, the respondent became unemployed and began receiving Employment Insurance benefits. The amount he contributed for child support was subsequently reduced to $664 per month for September through November, and $359 per month thereafter. This was due to informal arrangements agreed to by the parties. The September 22, 2009, court order was never varied.
[14] The order of September 22, 2009, also required the respondent to pay an additional $300 per month towards s. 7 expenses. The applicant has very fairly restricted the s. 7 expenses for which she is seeking contribution to daycare and after school care. The order provided that the sum could be paid directly to the child care provider, Imagineers Daycare Center. The respondent has contributed some funds, for which I have given him credit, but has failed to reach the $300 threshold required by the order in the fall of 2009 and in 2010.
[15] There is a significant sum of arrears payable to the applicant relative the proportional share of the daycare expenses for which the respondent is responsible. He argued that an order to pay these arrears would impose a significant financial strain on him due to the fact that he is retraining at Trios College. However, a payor parent cannot simply ignore the obligations established by the Child Support Guidelines, and then expect the court to “waive” those obligations due to financial problems encountered at a later date. The applicant has prepared a detailed summary of the sums payable.
[16] It is also of note that correspondence between Ms. Lewis and the respondent’s former lawyers, entered as exhibits 19, 20 and 21, contains a letter dated May 11, 2010, in which Ms. Mendes da Costa, the respondent’s lawyer at that time, acknowledged the child care costs should be claimed by the applicant in her tax returns and that the amount payable by the respondent relating to the daycare costs under s. 7 of the Child Support Guidelines should be based on their respective incomes. That never occurred. Ms. Mendes da Costa was removed as solicitor of record in September 2010 and since that time, the respondent has been self-represented.
[17] Settlement conferences were held in January and May of 2010. The matter was put on the trial list for cases to be heard in late November 2010. The matter was removed from the trial list in November when the respondent disclosed for the first time that he had been able to obtain information from a back up disk relative to the business records of the applicant at the time of marriage. These were important as the value of her business at the date of marriage was relevant to the equalization of family property. There were two further attendances before Pazaratz J. before the matter was restored to the trial list in March 2011. The respondent was ordered to serve his valuator’s report by March 23, 2011 (exhibit 76 is the transcript where this was ordered by Pazaratz J in February 2011). The trial commenced October 24, 2011, and continued over a disjointed period of 9 and one- half days thereafter.
Evidence of the Parties
[18] In my view, the applicant’s evidence demonstrated a well recollected and accurate version of events that stood strong in the face of a lengthy cross examination. On the other hand, I found that the respondent’s evidence was less clear and in flux on certain issues. For example, the respondent stated in his examination-in-chief that it was in September 2010 that he first discovered that he had the computer records relating to the applicant’s financial planning practice, but he later claimed to have made that discovery on November 20, 2010. Then in cross-examination he said he had found the records three to four weeks before the November 20, 2010, date provided. He also agreed that he did not disclose that the information was in his possession until November 29, 2010, before Pazaratz J. An email dated November 20, 2010, (exhibit 86) sent from the respondent to his business valuator assists the court on this point. One can infer from it that the respondent was trying to adjourn the trial, and it shows that the he had more information in his possession than what he indicated to Pazaratz J. The respondent said he would look for the November 20, 2010, email during a break in his cross-examination, but it was only produced during the testimony of his expert witness Mr. Marino. I have no doubt that he had the document in his possession the entire time and simply chose not to produce it.
[19] In considering the credibility of the respondent, I have noted the submissions made on the appearance before Pazaratz J. The respondent told the court he had retained a business valuator but that representation was not borne out by the evidence. While Mr. Marino was not exact on the date he was retained, he recollected that it was in December 2010 at the earliest. The report and the time it took to produce it suggest that Mr. Marino did not actually begin the assignment until February 2011.
[20] I have also considered the number of times that the respondent had not provided accurate and complete information in the financial statements he filed during the course of these lengthy proceedings. For example, the September 22, 2009, order of Mazza J. was based on outdated and incorrect information relative to the respondent’s actual income. During his cross-examination on his net family property statements filed in this matter, there were significant variations in the value he placed on the applicant’s business from time to time. Finally, once he retained a business valuator, a further final change of value was submitted.
Child Support
[21] There are a number of issues for the court to determine under this heading.
Retroactive Child Support
[22] The applicant has sought an order for retroactive child support from March 2008 to December 2011. The respondent also claims retroactive child support. He contends that the children have spent at least 40 per cent of their time with him each year since the separation and hence, pursuant to s. 9 of the Child Support Guidelines, no child support was payable by him. He contends that the applicant should instead be required to repay him his overpayment of child support. For the reasons which follow, I disagree with the respondent’s submissions and find that he did have an obligation to pay child support and to contribute to s. 7 expenses from the date of separation.
[23] The applicant is seeking 18 months of retroactive child support payments from March 2008 to September 2009. To determine the monthly amount due, the applicant applied the Child Support Guidelines to the respondent’s 2009 income, pegged at $69,668. She has calculated that the 18 months of retroactive child support should be payable at a rate of $1,039 per month for a total of $18,702.
[24] There is evidence that the respondent was well aware of the nature and extent of his child support obligation at an early date, but simply did not step up to the plate. The applicant said that she mailed her husband the Child Support Guidelines table after the parties separated, and he was enraged by the sum he had to pay.. This is confirmed by the email exchange which occurred between the parties in early April 2008, when the parties had been separated for less than a month.[^1] The applicant’s first email included a link to the Child Support Guidelines, which prompted the respondent to exclaim “those tables are unfair. What a joke on the person paying child support? So those are the numbers you want?” The applicant indicated that those were the numbers.
[25] Shortly after that, the respondent sent the applicant an email dated April 7, 2008 (exhibit 39). In it, he indicated he would like to have the children spend equal time with each of their parents. In exhibit 27, Ms. Sarkozi noted her surprise when he indicated he wanted “equal time” with the children.
The 40% Threshold Issue
[26] The threshold issue is whether the respondent has had a right of access to or physical custody of the children for more than 40 per cent of the time for all or any of the years since the date of separation. Section 9 of the Child Support Guidelines is operative “over the course of the year”. In determining this issue I have carefully considered the detailed evidence provided by the respondent, including exhibits 50, 69 and 70.
[27] The respondent’s calculations of time to reach the 40% threshold was largely based on two major assumptions:
A. he treated the time the children were in school as “neutral” time.
B. He treated the time the children were in his care under the “first right of refusal” clause as “his time”.
[28] The respondent went to great length to summarize the time he has spent with the children in 2008, 2009, 2010 and thereafter. In exhibit 70, which underlies the respondent’s claims for retroactive child support, the respondent acknowledged that he did not keep records and was relying on his recollection for the year 2008. He also stated that his 2008 calculation was based on the parties separating on April 8, 2008,but that does not appear to be the case. At p. 1 of his schedule, he claimed to have had the children with him 105 out of 265 days since the time of separation, based on a 42 week span of separation in 2008. The figures provided establish that the respondent used a separation date of March 5, 2008, to ground his calculations, though he suggested in his testimony that the parties separated in April 2008. I find that the parties actually separated on March 5, 2008.
[29] It is clear from the evidence that timesharing was not very extensive in March and April 2008. In the exchange of emails of April 3, 2008, in exhibit 22, the applicant wrote “I hope you can find the solution to having the children spending more time with you.” This supports the applicant’s evidence with respect to the limited time the respondent was spending with the children in the initial period following the separation.
[30] The applicant’s evidence about the timesharing was very clear. She testified that the respondent saw the children on one day of each weekend and his first full weekend was on the mother’s day weekend of 2008 in early May.
[31] That arrangement remained in place until the September 22, 2009, order of Mazza J. [^2] The order was issued pursuant to Minutes of Settlement filed by the parties. According to the order, the children were to continue to reside with the applicant pending an investigation and possible report from the Office of the Children’s Lawyer. The order also required the respondent to pay $1,037 per month in child support, which is significant to the 40 per cent issue because the respondent was represented by counsel when the order was made, and counsel would have undoubtedly considered the issue of timesharing and the obligation to pay child support based on the facts at the time.
[32] The order of Mazza J. created an access schedule in para. 7 which made it impossible for the respondent to meet the 40 per cent threshold mark. The only variation to that schedule was made by the order of McLaren J., who simply fixed the respondent’s midweek visit on Thursdays and provided an additional three hour visit for him on Mondays after the weekends the children were with the applicant.
[33] The applicant testified that they implemented a timesharing regime of every other weekend and an overnight on Monday or Thursday in the other week. Based on that, the schedule set out by the respondent in the box at p. 1 of exhibit 70 is inaccurate. In 2008, the respondent has had a right of access to or physical custody of the children for four and one-half days every fourteen days plus an additional three hours on alternating weeks, which comes to 35.71 per cent of access or custody. This is well below the 40 per cent threshold required to engage s. 9 and eliminate or reduce the respondent’s child support obligations.
[34] In contrast to the 2008 schedule, the respondent testified that the schedules for 2009 and 2010 found in exhibit 70 documented every day he had the children. In looking at the schedules, I am satisfied that the respondent has still not met the 40 per cent threshold required by the Child Support Guidelines.
First Right of Refusal Argument
[35] As stated, the respondent’s 40% claim was partially based upon the “first right of refusal” provision contained in para. 29 of the October 22, 2010, consent order, which states: :
- This Court orders that should either parent require an alternate caregiver for the children, the other parent shall be offered the right of first refusal to care for the children without it being considered “traded” or extra time.
[36] In my view, the respondent’s interpretation of para. 29 of the October 22, 2010, consent order is incorrect for the following reasons.
[37] The final order of McLaren J. dated October 22, 2010, [^3] was made on consent at a time when the respondent was represented by experienced family law counsel. The order provided that the parties would have joint custody of the children, who would continue to make the applicant’s home their primary residence. The order has extensive provisions related to timesharing but failed to mention whether any “credits” should be applied to impact the 40 per cent threshold determination when the parties abided by the first right of refusal provisions.
[38] That is important because the primary focus must at all times be on the best interests of the children and not the desire to have visitation with the children in order to reduce or eliminate child support obligations. In the arrangement that the parties negotiated in this matter, I have been impressed with the efforts of the applicant to encourage the children to spend as much time as possible with their father rather than “farming them out” to babysitters or other family members to maintain her entitlement to receive child support.
[39] Ms. Lewis also submitted that the court should reject the applicant’s interpretation and attempted retroactive application of the “right of first refusal” clause. I agree that the applicant should not be counting the days when she agreed to have the respondent look after the children as additional access times in light of paragraph 1.1.3.4 of the mediation agreement (p. 8 of the report) and para. 29 of the October 22, 2010, order. Moreover, it is important to note that the terms negotiated in the mediation agreement and the order recognized a significant sharing of holidays as well as P.A. days. Despite the extra holiday time the respondent had with the children, the underlying expectation was that the holidays would be divided equally. Finally, the respondent’s refusal to allow the applicant to have an additional two weeks of summer vacation with the children in 2010 should not permit him bring himself up over the threshold.
School Time
[40] To a large extent, the respondent’s calculations in support of his argument are prefaced on the idea that the time the children spent at school was neutral time that should not be included in favour of either parent.
[41] In the case of Evans v. Gravely, 2000 CarswellOnt 4781 (S.C.), Benotto J. dealt with a similar issue relating to the 40 per cent threshold. In my view, the learned judge applied the appropriate basis for calculating time sharing. At para. 15 of her judgment, she wrote:
There are different methods of calculating whether a person reaches the 40% threshold. I prefer not to exclude the time spent sleeping, in daycare or in school. During those hours, one of the parents has primary responsibility and related expense for the child. The Court should start with the presumption that the primary residential parent has the child for 100% of the time. In this case, that is clearly the mother. Then the parent asserting the 40% rule (in this case, the father) must demonstrate that he has physical custody for 40% of the total custodial time. Using these criteria, the father has the child for 28% of the time.
[42] In my view, that is a clear expression of the law as it exists today and as it existed at the time that the parties negotiated the consent orders of September 2009 and October 2010.
[43] The respondent has relied on the case of Barnes v. Carmount, 2011 ONSC 3925, as authority for his proposition that school time should be treated as “neutral time” when dealing with the 40 per cent calculation. However, it is clear that the presiding judge, Sloan J., made that finding on the facts of that particular case and the terms of the very detailed parenting plan entered into by the parties. That is quite distinguishable from the case at bar.
[44] I find as a fact that at no time since the parties separated on March 5, 2008, has the respondent exercised a right of access or had physical custody of either or both of the children more than 40 per cent of the time over the course of a year so as to trigger the shared parenting provisions under s. 9 of the Federal Child Support Guidelines.
[45] In the context of s. 9(b) of the Guidelines, Benotto J. also spoke of the increased cost of the timesharing arrangements. The respondent has not led evidence that he has had increased costs of any significance due to the timesharing arrangements except for the fact that the children have clothing in both of the homes. He has paid for such programs as Imagineers, a soccer day camp in 2010, and YMCA Daycare in 2011 and has been given credit for those payments in the applicant’s calculation of retroactive child support.[^4] I have considered the respondent’s evidence on the issue of increased costs of the child sharing arrangement and the amounts stated in his financial statements. The amounts are not at all significant. In October 2011, he identified an additional cost of $32 per month. While that may be somewhat low relative to actual costs, the costs are not sufficient to cause the court to invoke the provisions of s. 9(b) even if s. 9 was applicable to this matter.
[46] The court did hear evidence from the respondent about the increased gas and automobile costs he has incurred due to the applicant moving her residence to the Aldershot area. Her residence is about 13 kilometres from the former matrimonial home where the respondent has continued to reside. While this has increased the costs associated with picking up and dropping off the children, the applicant has not moved outside the 25 kilometre radius negotiated by the parties and incorporated into para. 23 of the consent order of October 22, 2010. The respondent also provided evidence from “gas buddy” with respect to his gas expenses but in my view, those increases are more attributable to industry wide increases in gas prices rather than the increased distances he has to travel for pick-up and drop-off of his sons. Finally, the issue of transportation costs was negotiated by the parties and reflected in the consent order of October 22, 2010, at para. 21. He has not made a claim for those expenses in his pleadings in these proceedings.
[47] As noted above, the respondent claimed retroactive child support and particularized his claim in exhibit 55. However, in the case of Contino v Leonelli-Contino, [2005] S.C.J. No. 65, 2005 SCC 63, the court held that s. 9 of the Child Support Guidelines expressly provides for a particular regime in cases of shared custody, and this implies a departure from the payor/recipient model that comes under s. 3. Section 9 requires a court to determine the amount of child support in accordance with the three listed factors once the 40 per cent threshold is met. However, I find that the 40 per cent threshold has not been met in this case and therefore, the respondent’s claim for retroactive child support must be dismissed.
[48] I must say that if I am wrong with respect to my determination relative to the 40 per cent threshold, I have considered the Supreme Court’s comments at paras. 41 and 49-55 of the Contino decision. There, the court stated that there is no automatic set off when there is a shared parenting arrangement under s. 9. The third part of the test with respect to the conditions, means and other circumstances of each spouse must be applied. I am satisfied that the current disparity in the parties’ income is a temporary one. Historically, the respondent earned more income than the applicant and only since 2011 has her income exceeded his. In my view, it would be unreasonable for her to have to assume the lion’s share of s. 7 expenses (as she has done) and to also have to pay child support to the respondent.
Incomes of the Parties for Child Support Calculation Purposes
[49] I impute $2,500 of additional income to the applicant on the basis of car and cell phone expenses which would be partially personal and not business related. She has already attributed a portion of these expenses as personal and so it is not reasonable to impute as much as the respondent would ask me to do.
[50] The respondent has added the Child Care benefit to his calculations of imputed income to the applicant in exhibit 55. That is incorrect as Schedule 3 of the Child Support Guidelines specifically legislates that this sum should not be added to income for child support calculations.
[51] In looking at the applicant’s calculation in exhibit 90, almost all of it accrued in 2008 and 2009 when the respondent was gainfully employed and earning more than what he swore in his financial statements and more than what he represented at the time the first temporary order was made. There were opportunities to correct the information and make the disclosure, but he did not do so.
Retroactive Child Support and Extraordinary Expenses under s. 7 of the Federal Child Support Guidelines
[52] The applicant seeks an order that the respondent pay his proportional share of the daycare expenses that she has incurred since the date of separation. She is agreeable that the respondent should be entitled to credit for the sum he paid for after school daycare at the St. Peter and Paul parish.
[53] During her testimony, the applicant outlined her claim for Retroactive Child Support from March 2008 to December 31, 2011. The claim is found at exhibit 90 and, after giving the respondent credit for the payments he has made, comes to $17,885. Subject to one minor correction, I accept the income figures she has provided and find that she is entitled to payment for retroactive child support near the sum of her calculations. The only point I took issue with was that I found the 2009 Child Support Guidelines amount to be overstated by $6 per month, meaning the total payable should be reduced by $72. As a result, retroactive child support is allowed in the amount of $17,813 to and including December 31, 2011.
[54] The reason I would permit retroactive child support arrears to go as far back as 2008 and 2009 is that exhibit 90 clearly shows that most of the arrears accumulated in those two years. Failing to award the applicant for that time would reward the respondent for his delay and penalize the applicant for her reasonableness. I say so because I find that the applicant acted reasonably by engaging in protracted mediation and only commencing this action to resolve the financial issues when the mediation failed. I also note that she had to encroach on her RRSP in 2009 while the respondent continued through that year with his savings intact and enough money left over to pay down his mortgage.
[55] The respondent made a claim summarized in exhibit 55 for retroactive child support. It is based on the proposition that s. 9 is applicable and that a set off is appropriate in accordance with the provisions of that section. For the reasons already articulated, that submission is rejected and the claim is dismissed.
[56] In the calculation of the applicant’s claim for retroactive child support found in exhibit 90, the actual payments made by the respondent on account of child support, childcare and health related expenses are recognized as follows:
a. The costs paid by the respondent directly to St. Peter and Paul School for the After School Program, are included in schedules 1, 2 and 3 to that document. The DivorceMate schedules are based on the proportionate sharing of the net s. 7 expenses, after giving the respondent credit for the expenses he paid directly.
b. The childcare expenses for the Imagineers Daycare Centre are treated as the applicant’s s. 7 expenses because she has claimed the expenses on her income tax return. Former counsel for the respondent had previously acknowledged in exhibit 21 that this was the appropriate way of treating the daycare costs. I concur.
c. The calculation under exhibit 90 gives the respondent credit for the daycare costs he paid directly to the Imagineers and YMCA Daycare Centres, as well as the amount he paid for the soccer day camp.
[57] I find that the registration fees paid by the respondent for soccer and swimming lessons are not a proper s. 7 expense as they were not “extraordinary” expenses, based on the test in s. 7 (1.1) of the Child Support Guidelines. In my view, these were costs that the respondent could reasonably cover based on his income and their amount.
[58] I am satisfied that under schedule 1 of exhibit 90, the respondent has been given credit for the $285 he paid for the After School Program and this in turn reduces the net amount of s. 7 expenses to $338 per month. With respect to the year 2010, schedule 3 of exhibit 92, the s. 7 expenses for the After School Program ($767), dental expenses and soccer are included in the calculations in Schedule 3. The s. 7 amount shown at $167 per month is the net amount payable by the respondent.
[59] The applicant has indicated that the income amounts for the respondent in 2011 (set out in Schedule 4 of exhibit 90) are based on his evidence as to the amounts he received from Employment Insurance and social assistance. However, the respondent did not provide the income tax slips at trial to substantiate those sums. Again, the amount actually paid by the respondent for dental expenses is included in Schedule 4. However, I agree with the applicant’s position that the soccer registration fees should not be considered a s. 7 expense. Similarly, the soccer day camp should not be considered a s. 7 expense. It is also relevant to this decision that during the summer of 2011, the respondent was not employed or attending school, and therefore, is not in law entitled to claim the day camp fee as a s. 7 expense.
Child Support from January 1, 2012
[60] The applicant has asked and it is ordered that the respondent pay child support in accordance with the Federal Child Support Guidelines commencing January 1, 2012, and on the first day of each month thereafter in the amount of $162 per month. According to the Child Support Guidelines, this would be based on an annual income of $12,400. This sum seems reasonable despite the fact that the respondent’s income in 2011 was expected to be $21,634, because the respondent testified that his Employment Insurance benefits were reduced late in the year, leaving him to pay $220 per month in accordance with the Child Support Guidelines. A payment of $220 per month in child support would mean his income was approximately $14,000, which seems in line with the current figures.
[61] In any event, the parties will be able to adjust for the proper amounts payable in 2012 when the respondent’s 2012 income is known and when he has found a proper paying job. In the meantime, I am satisfied that the children will not suffer if their father pays a little less child support each month during this transitional period while he seeks to upgrade his IT credentials, especially considering that both the applicant and her partner each earn income exceeding $100,000 per year.
[62] It is further ordered that commencing January 1, 2012 the respondent shall pay his proportional share of s. 7 expenses for the children based upon the self-employed net income of the applicant of $102,548.99 (as found in the Divorcemate calculation dated January 11, 2012, affixed to exhibit 90) and his imputed income of $12,400.
Valuation of the Applicant’s Business
[63] Each of the parties called expert witnesses to provide the court with their opinions of the value of the applicant’s business, Sarkozi & Associates, at the date of marriage and the date of separation. Both experts were well qualified to offer such testimony and the parties had no serious objection to the qualifications of either expert. The real issue lay in their respective findings.
[64] The applicant stated in her financial statement sworn September 30, 2011, [^5] that the value of her financial planning business was $44,000 on the date of marriage and $54,000 on the date of separation. She attributed the lack of growth in the value of the business to the fact that she took a lot of time away from the business when her children were born in order to concentrate on the children during their formative years.
[65] The applicant testified that the figures she provided were based on the report of the valuator she retained, Robert Hehl of BDO Dunwoody. Mr. Hehl has been a Chartered Business Valuator since obtaining that designation in 2006.
[66] Mr. Hehl’s report and reply reports were entered as exhibits. His first report, dated June 17, 2010, was co-authored with one of his colleagues and entered as exhibit 42. It notes that the applicant had asked him to provide an opinion of value of her business as of the date of marriage being June 16, 2001, and the date of separation being March 5, 2008.
[67] Jeff Marino was retained by the respondent as an expert to critique Mr. Hehl’s valuation of the applicant’s business. Mr. Marino prepared a critique report dated March 23, 2011, which was entered as exhibit 84. He later prepared a valuation report dated October 24, 2011.[^6]
[68] The fair market value of the applicant’s Financial Planning Practice (the practice) on the valuation dates as determined by BDO was as follows:
a. On the Date of Marriage June 16, 2001:
Low High
Fair Market Value of Practice $37,000 $45,000
Less: Income Taxes ($11,000) ($13,000)
Net Value: $26,000 $32,000
b. On the Date of Separation March 5, 2008:
Low High
Fair Market Value of Practice $45,000 $58,000
Less: Income Taxes ($13,000) ($17,000)
Net Value: $32,000 $41,000
[69] The analysis of the value of the practice undertaken by Mr. Marino resulted in a significantly higher valuation of the business as of the date of separation. The fair market value of the applicant’s practice was estimated by Mr. Marino as follows:
a. On the Date of Marriage June 16, 2001: $36,000 to $39,000.
b. On the Date of Separation March 5, 2008: $78,000 to $87,000.
[70] Mr. Marino noted that BDO initially applied a marginal income tax rate of 29 per cent which was deducted from the estimated sale price of the practice. He did not follow that approach and submitted that the income taxes payable from the eventual sale of the practice should reflect the actual holding period of the asset. There was no evidence that the applicant will not remain in the industry for many years to come as it is her sole source of income. She is evidently very successful in her profession, largely due to her strong work ethic and personal discipline. Hence, Mr. Marino felt that it was appropriate to discount the contingent taxes by an after-tax, low risk investment discount rate. He applied after-tax rates of 3.3 per cent as at June 16, 2001, and 2.1 per cent as at March 5, 2008. He then discounted the rates for expected holding periods of 20 years (date of separation value) and 26 years for the date of marriage value. In his re-examination, Mr. Hehl adopted the approach recommended by Mr. Marino after the two experts had an opportunity prior to trial to discuss the differences in their reports and results. I concur with that approach and find it is more appropriate than the approach adopted by BDO in its initial report.
[71] The applicant signed an Associate Agreement with Donro Financial Limited dated January 25, 2005 (“the Associate Agreement”). The Associate Agreement outlines the obligations and responsibilities of both parties. It states that upon termination of the relationship, Donro Financial Limited will assume the existing client list from the applicant in exchange for two years of commission on all trailer fees and additional compensation for new business accrued during the first year of transition.
[72] Donro Financial Limited provides back office and compliance services to the applicant’s practice in exchange for a percentage of the gross commissions on the sale of products and services. The applicant employs part-time staff responsible for client services and administration.
[73] Despite some initial disagreement, it appears that the parties have come to agree that on the date of marriage, the applicant’s business had approximately 120 clients with $6,100,000 in assets under her management. On the date of separation, there were approximately 160 clients in the business with assets under management of approximately $12,000,000.
[74] Both valuators used a market approach to valuation as their primary valuation methodology. Using this methodology, the compensation or value for the practice was based on a multiple of service fees as outlined in the Associate Agreement. These are commonly referred to as “trailer fees.”
[75] Mr. Marino relied on the figures, which the respondent provided from the database program known as Conceptual Database software (CCD). This database and inputting of information was done by the respondent on behalf of the applicant during the period of time they were cohabiting and married. The applicant did not seriously challenge the figures as presented by the respondent but in fairness to her, it would have been difficult for her to remember the customers, the volume of commissions earned, etc.
[76] Mr. Marino determined that the actual data for the 12 months preceding the date of sale should be used in determining trailers in accordance with the Associate Agreement. I concur, and find that Mr. Hehl did not take this information into account despite the fact that the respondent produced it and provided Mr. Hehl with several months to vary his report or include it in his Critique Report.
[77] Both appraisers used a different attrition rate in undertaking their valuations. An attrition rate relates to the loss of client base when one advisor transfers his practice to another. BDO applied attrition rates of 30 to 45 per cent per annum on the notional sale of the practice. This was largely based on a letter dated September 29, 2009, to Sarkozi & Associates from Mr. Don Robertson of Donro Financial Limited. That letter was entered as exhibit 45 during this trial. In that letter, Mr. Robertson suggested that
[T]he purchase value of your clients would be approximately two years trailers at your 80 percent commission rate discounted by 45 percent, which would be the expected level of attrition since your office is at a distance from our head office. This level of attrition is based on experience from other advisors.
[78] The attrition rate of 45 per cent described by Mr. Robertson is equivalent to the attrition rate used by BDO in their low estimated value. Its application is seen in Schedule 1 to his report entered as exhibit 42. I am mindful of the limited utility of Mr. Robertson’s evidence on this point. Mr. Robertson was not called as a witness in this trial. Mr. Hehl did not speak to him. He relied upon that letter as a basis upon which an attrition rate should be applied. On the other hand, the applicant provided written authorization to permit the respondent’s business valuator to communicate with Donro Financial, which Mr. Marino chose not to do. Mr. Marino also failed to ask the applicant questions about her financial planning business.
[79] I therefore ascribe some evidentiary value to this letter from Mr. Robertson, but I ultimately disagree with the attrition rate of 45 per cent he considers reasonable when I consider the facts of the present case. In his letter, Mr. Robertson based his 45 per cent attrition rate figure on the distance from the applicant’s business to the company’s head office. However, the extent to which distance plays a role in that equation is unclear. The onus is on the applicant to establish the reasonableness of her figures on a balance of probabilities. Since the qualifications of Mr. Robertson and the reliability of the sources of his information were not put before the court, I can only put limited reliance on his assessment.
[80] While the applicant encouraged the court to adopt an attrition rate of 45 per cent when evaluating the applicant’s practice, the respondent’s expert believed an attrition rate between 15 to 25 per cent would be more reasonable. Mr. Marino dismissed the impact that distance from head office would have on the attrition rate, and I would agree that given the state of modern communications, the distance between the office of Donro Financial Limited in St. Catharines, Ontario and the office of the applicant in Burlington, Ontario is not substantial. I also agree with Mr. Marino that as the eventual purchaser of the practice is likely to retain its location nearby, thereby rendering this discussion moot. The Associate Agreement permits the applicant to assist in deciding which associate would provide service to her client base upon her termination or retirement. Mr. Marino, relying on a book entitled “Buying and Selling a Book of Business” by Sandra E. Foster suggested that any transaction where the buyer is able to retain more than 75 per cent of the client assets over a three year period adjusted for market performance had experienced good client retention. Based on information obtained from the respondent, the applicant appears to have retained approximately 73 per cent of her client base over a two year period from her acquisition of the book of business from Barrington Simon between July 21, 1999, and June 30, 2001.
[81] I therefore find that the attrition rate to be applied should be 20 per cent per annum of trailer fees. This means that the figure applied by BDO was too high. This is just one of a number of reasons why I would reject the applicant’s calculations in relation to the business valuation. There is also the fact that Mr. Hehl failed to consult with Mr. Robertson as to how the attrition rate should be applied. Mr. Hehl assumed the attrition rate should be applied to the value of the business on an annual basis, leading him to discount 45 per cent in the first year and then another 45 per cent in the second year. He agreed that he did not know if the 45 per cent referred to by Mr. Robertson was over one or two years. Obviously, this was of greater benefit to the applicant who had retained him but it does not give me any confidence that this court can therefore rely on his calculations. Mr. Hehl also applied a more conservative 30 per cent annual attrition rate in Schedule 3 of his report at exhibit 42.
[82] I also reject the calculations undertaken by Mr. Hehl because he has acknowledged that they are theoretical. He explained that the notion is that the client base generates the trailer fees. As clients leave, the trailer fees disappear. His theory assumes that each client has the same portfolio. However, he did not receive a copy of the applicant’s book of business for September 24, 2001, though it should have been available to him. He never asked the applicant for the trailer fee print outs for the period of July 1999 to June 2001. He never got a summary of the service fees from the applicant or a 2001 transaction listing from the applicant for her business. He agreed in cross-examination that the applicant had not provided him with any of those items despite having access to them.
[83] In order to determine the reasonableness of the conclusion reached by his primary valuation method, Mr. Marino adopted a valuation approach called Assets under Management. By this approach a multiple or percentage is applied to the assets under management to generate a potential fair market value. To test the reasonableness of his conclusion under the market approach, Mr. Marino applied a 1.0 per cent factor to the assets under management on the date of marriage value and on the date of separation value. Using the Assets under Management valuation approach, he determined that the date of marriage value would be $61,000 and the date of separation value would be $120,000. He argued that this further supported his conclusion under the market value approach where the date of separation value was approximately 2.4 times the size of the date of marriage value.
[84] However, Mr. Hehl has pointed out that the use of the one per cent factor adopted by Mr. Marino has been selected without any supporting rationale. Mr. Hehl noted that in Schedule 3 of the Mr. Marino’s report, the pre-tax value of the financial planning practice is in the range of $33,633 to $37,577 or a midpoint of $35,620. However Mr. Marino did not provide an explanation regarding the difference of a market conclusion and the assets under management. The difference in conclusions of $35,620 and $61,000 is approximately 71 per cent. Mr. Hehl has also noted that the date of separation values can range widely, depending on the factor applied. For instance, based on a date of separation asset base of $12,000,000, a two percent factor would mean a valuation of $240,000 for the business, whereas a 0.5 percent factor would mean a valuation of $60,500. I concur with Mr. Hehl that it is inappropriate to conclude that the quantum of difference in the conclusions reached by the two approaches at the date of separation (22 per cent) is appropriate, while the difference at the date of marriage (71 per cent) is left unexplained.
[85] I find that the assets under management backup approach undertaken by Mr. Marino does not confirm the figures that he would suggest to the court and tends to overstate the value of the applicant’s business on the date of separation.
[86] With respect to the issue of attrition, Mr. Marino used information provided by the respondent with respect to the Barrington Simon book of business. However, Mr. Hehl, at page five of his Critique Report dated December 8, 2011, (exhibit 87) noted the following:
Assets under Management at June 30, 2000 $3,293,757
Assets under Management at June 30, 2001 $2,119,283
Attrition and Book Value in Year preceding valuation date 36 per cent
Mr. Hehl also noted that two clients with holdings of approximately $920,000 as at June 30, 2000, were no longer clients as at June 30, 2001. Hence, Mr. Hehl felt there was significant risk of client departure related to this specific book of business of Barrington Simon, and he did not believe that a market based attrition rate was appropriate in the circumstances.
[87] Mr. Marino submitted that the volume of assets under management in the applicant’s practice of the applicant increased 215 per cent in value from the date of marriage to the date of separation. Hence, he submitted it reflected a significant growth in the value of her practice. I reject that finding because the practice was generating lower revenues and lower net income. The applicant filed her income tax returns, which were not seriously disputed, except for some minor expenses she deducted. Those income tax returns showed the following:
2000 Gross Business Revenues $ 96,859
2000 Net Business Income $ 44,187
2001 Gross Business Revenues $ 96.228
2001 Net Business Income $ 42,198
2007 Gross Business Revenues $ 90,954
2007 Net Business Income $ 41,392
2008 Gross Business Revenues $113,114
2008 Net Business Income $ 66,650
[88] I find the actual computer data produced by the respondent was not challenged in any way leading up to the trial or in any significant way during the trial. Ignoring this data accounts for more than 75 per cent of the difference between the valuation conclusions reached by Mr. Marino and Mr. Hehl. In that respect, I prefer the evidence of Mr. Marino. I am also concerned that Mr. Hehl’s report did not stand up to cross-examination by the applicant. Mr. Hehl was not able to reproduce the amounts in the schedules to his report when he was asked to under cross-examination. Mr. Marino was not able to recreate Mr. Hehl’s figures in his report.
[89] The order made by Pazaratz J. on November 29, 2010, required the respondent to produce all records in his possession relating to the applicant’s financial planning practice (exhibit 74, para. 5). The respondent testified that he provided the records he thought were relevant. Mr. Marino only relied on the records provided by the respondent. The applicant argues that in contrast, Mr. Hehl’s calculations were supported by a review of the applicant’s actual income tax returns in income tax sources for the years prior to the date of marriage and the date of separation.
[90] I find that the value of the applicant’s financial planning practice on the date of marriage of June 16, 2011, was $36,000. I find that a potential purchaser of the business would purchase the existing practice based several factors including the income generated from trailer fees, the nature of the clients making up the client base, the size of the book of business, the gross commissions on a repeating basis and the potential for growth of the business with full time effort being applied to it. On the entirety of the evidence before this court, I find that the value of the practice on the date of separation, March 5, 2008, was $70,000.
Disposition Costs of the Respondent’s Home
[91] The matrimonial home was purchased by the respondent long before the parties married. They resided in that residence for the 7 years of their marriage. They have not disputed its value for equalization purposes. The only issue in dispute related to whether the respondent should be able to deduct anticipated disposition costs in calculating his net family equalization figure.
[92] The respondent did not testify that he had any intention of disposing of the residence. I find on the evidence before the court, he will probably not be disposing of the residence for the foreseeable future. He indicated that he has kept the house because it is ideal for accommodating the children during access visits. He has sufficient equity in it that when he is able to obtain another job, he should be able to refinance it to make the equalization payment to the applicant. If this is the case, the disposition costs need not be shared. However, if he is not able to refinance it and he is required to sell the house (which appears to be the only realistic source of funds for him to make the equalization payment), the disposition costs should be shared between the parties. In coming to this conclusion, I have considered the case of Sengmueller v Sengmueller (1994), 1994 CanLII 8711 (ON CA), O.J. 276 (C.A.), in which the court held that disposition costs should be shared if there is evidence of a likely disposition date and if the costs will be inevitable. The principles to be applied in such a case were articulated at para. 33 as follows:
a. Apply the overriding principle of fairness, i.e., that costs of disposition as well as benefits should be shared equally;
b. Deal with each case on its own facts, considering the nature of the assets involved, evidence as to the probable timing of their disposition, and the probable tax and other costs of disposition at that time, discounted as of valuation day; and
c. Deduct disposition costs before arriving at the equalization payment, except in the situation where "it is not clear when, if ever" there will be a realization of the property
[93] Because it is ordered that the equalization payment owing to the applicant shall be made on or before December 31, 2012, and that such equalization payment is subject to pre-judgment interest, I am satisfied that the date of possible disposition is reasonably foreseeable. [^7] If the respondent has to sell, there is no question that disposition costs will be incurred. In that event, the disposition costs should be equally borne. If he is able to refinance, the applicant should not be liable for notional disposition costs. I find that this approach creates the fairest resolution of this issue on the facts of this case in accordance with the principles articulated in Sengmueller.
[94] It is ordered that the applicant fully co-operate with the respondent if he chooses to re-finance his residence to make the equalization payment owing to the applicant but that is not to be construed as obliging her to guarantee or otherwise be liable for any payments due under such mortgage.
Should the Applicant be Required to Contribute to the Carrying Costs of the Respondent’s Home?
[95] The respondent has enjoyed rent free occupation of the matrimonial home since the date of separation. That residence is registered solely in the respondent’s name. No evidence was led by the respondent to justify an order requiring the applicant to contribute to the carrying costs of the respondent’s home from the date of separation. Even if there had been some evidence to that effect, it would not have offset the benefit he has enjoyed of rent free living. He has paid the mortgage down since separation from approximately $34,829 to $17,499.63.[^8] In one sense, that has benefited the applicant in calculating the equalization of family property. On the other hand, the respondent has benefited from having increased equity in his property instead of paying at least $1,000 per month of rent to find equivalent accommodation.
[96] The applicant is not ordered to contribute anything to the carrying costs of the respondent’s home from the date of separation.
Equalization of Net Family Property
[97] The parties have filed Net Family Property Statements in this trial. The applicant’s is found at tab 9 of the Trial Record and was entered as exhibit 17. The respondent’s was entered as exhibit 53.
[98] The applicant testified that she was relying on that document in this case. According to her calculations, the respondent owed her an equalization payment of $74,309.10. The respondent’s calculation indicated that the equalization payment should be $49,496.19. The major differences lie in the values ascribed to the applicant’s financial planning business at the date of marriage and the date of separation.
[99] Those figures suggested by each party are as follow:
Date of Marriage Value
Applicant’s position: $44,000 Respondent’s Position: $38,000
Date of Separation Value
Applicant’s Position: $54,000 Respondent’s Position: $82,000
[100] I have ruled that the value of the applicant’s financial planning practice shall be $36,000 on the date of marriage and $70,000 on the date of separation.
[101] The other major difference in the parties’ calculations lies in the respondent’s insertion of $16,130 as notional disposition costs. Disposition costs should be removed from the calculation unless the respondent chooses to sell his house to make the equalization payment ordered.
[102] In all other respects, I accept the figures of the applicant in her net family property statement filed as exhibit 16 (tab 12 of the Trial Record). There was a relatively minor difference with respect to the value of a ring at the date of separation and the date of marriage but the only evidence before the court was provided by the applicant in exhibit 18. Hence, I find the ring to be valued at $3,200 on the date of marriage and $2,400 on the date of separation.
[103] It is ordered that the respondent pay to the applicant an equalization payment of $62,308.69 calculated on the applicant having a net family property of $85,906.40 and the respondent having a net family property of $210,523.78.
[104] The applicant has agreed that she will not seek payment of any equalization owing to her until December 31, 2012. This is based on the promise made by the respondent that he will complete his retraining by September 2012 and his belief that he should have no difficulty finding work as an accredited Microsoft technician shortly thereafter.
Pre-Judgment Interest and Post-Judgment Interest
[105] The applicant is entitled to pre-judgment interest on the arrears of child support and the arrears of s. 7 expenses. The interest should be payable on the sums as they accrued because the respondent was fully aware of his obligations in that respect. Parents who do not pay their statutorily mandated child support obligations should not benefit from not paying them in a timely way. In making this order, I have also considered that the trial was adjourned in November 2010 because of the delay in filing a financial valuation report.
[106] I have calculated the interest as follows:
a. From March 1, 2008, to December 31, 2008, the total amount of child support payable was $12,330. The respondent paid $2,776. Hence, the amount due on December 31, 2008, was $9,554.[^9]
b. From January 1, 2009, to December 31, 2009, the total amount of child support payable was $15,636. The respondent paid $6,531. Hence, the amount due on December 31, 2009, for the calendar year 2009 was $9,105. Thus, as of as of December 31, 2009, the respondent was in total arrears (for 2008 and 2009 excluding interest) of $18,659. However, the respondent has been ordered to pay $17,813 of total arrears.
[107] In the circumstances, pre-judgment interest and post judgment interest are ordered to be paid on $17,813 from January 1, 2010, to the date of payment at 4 per cent per annum compounded annually to the date of payment.
Conclusion
[108] It is ordered that the parties shall be divorced, effective with the release of this judgment on July 23, 2012.
[109] It is ordered that commencing the first day of January 2012 and on the first day of each month thereafter, the respondent shall pay the applicant child support for the two children of the marriage, Alex born May 23, 2004, and Miguel born April 29, 2006, the sum of $162 based on his income of $12,400.
[110] It is ordered that the respondent shall provide the applicant evidence in writing of his efforts to obtain gainful employment in the IT field on a monthly basis after July 1, 2012.
[111] It is ordered that within 10 days of gaining employment, the respondent shall notify the applicant of his place of employment, the position for which he has been hired, and the details of his remuneration and any benefits package associated with that new job.
[112] It is ordered that on or before July 31 in each year, starting in 2013, the respondent shall provide the applicant with a copy of his income tax return with supporting T4 slips and his confirmation of Assessment from the Canada Revenue Agency so that the parties may adjust the child support payable in accordance with the Child Support Guidelines. At the same time, the applicant shall provide the respondent with the statement of her net income as filed with the Canada Revenue Agency so that the parties can adjust the proportional amounts payable by each of them with respect to s. 7 expenses.
[113] It is ordered that the respondent shall pay the applicant retroactive child support and s. 7 expenses in the amount of $17,813.
[114] It is ordered that the respondent shall pay pre-judgment and post-judgment interest at the rate of 4 per cent per annum, compounded annually, on the aforesaid sum of $17,885, calculated from January 1, 2010, to the date of payment.
[115] It is ordered that the respondent pay to the applicant an equalization payment of $62,308.69 calculated on the applicant having net family property of $85,906.40 and the respondent having net family property of $210,523.78.
[116] It is ordered that the respondent pay post judgment interest on the equalization payment of $62,308.69 at 4 per cent per annum.
[117] It is ordered that the respondent pay the equalization payment to the applicant on or before December 31, 2012.
Costs
[118] It is ordered that the applicant provide short written submissions on the question of costs on or before August 10th, 2012. The respondent shall serve and file short written reply submissions on or before August 20th 2012. The applicant may respond on or before September 1, 2012.
Turnbull, J.
Released: July 23, 2012
CITATION: Sarkozi v. Pereira, 2011 ONSC 4011
COURT FILE NO.: D853/09
DATE: 2012/07/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMEA SARKOZI
Applicant
- and –
PAUL PEREIRA
Respondent
REASONS FOR JUDGMENT
Turnbull J.
Released: July 23, 2012
[^1]: Exhibit 22.
[^2]: Exhibit 6.
[^3]: Exhibit 5.
[^4]: Exhibit 90.
[^5]: Tab 11 of the Trial Record
[^6]: Exhibit 85
[^7]: On this issue, I was also referred to the case of Beal v Beal, 2005 CarswellOnt 3920 (S.C.), whose facts relating to disposition costs are distinguishable from the one at bar inasmuch as there was no evidence of any possible disposition in that case nor any likelihood on the facts that such a disposition would take place.
[^8]: See exhibit 52, the respondent’s financial statement sworn October 21, 2011.
[^9]: These figures are taken directly from exhibit 90.