Brenda Nicholson v. Ian Nicholson, 2012 ONSC 4569

COURT FILE NO.: FC-10-258-00

DATE: 20120808

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRENDA NICHOLSON

Applicant

– and –

IAN NICHOLSON

Respondent

M. Miller, for the Applicant

Self-Represented

HEARD: June 7 and 8, 2012

HEALEY J.

REASONS FOR JUDGMENT

Issues for Trial

[1] The issues remaining for adjudication at trial were:

(i) a determination of the amount of spousal support payable by Mr. Nicholson from September 1, 2010 to and including June 1, 2012, for the purpose of calculating any retroactive support owed;

(ii) a determination of the amount of spousal support payable commencing July 1, 2012;

(iii) equalization of the parties’ net family properties.

Background Evidence

[2] The parties had a 23 ½ year marriage, having been married on October 30, 1986 and separating on May 15, 2010. They have three children: Brent, born August 22, 1988, Bradley, born March 24, 1991, and Neil, born May 23, 1996. Brent is now 23 years old and resides independently. Bradley is 20 years old and has just completed the first year of a two-year college course in diesel mechanics. Neil is 15 years old and has resided with both parents since separation, alternating his primary residence from time to time. He has recently expressed an intention to move to the Hamilton area to live with his grandmother in order to escape the tug-of-war presented by his parents’ litigation.

[3] Mrs. Nicholson and Mr. Nicholson are both 49 years of age.

[4] Mrs. Nicholson is employed at Orillia Soldiers' Memorial Hospital as a support worker in the emergency department. She earns $21.35 per hour for a 7 ½ hour shift, and is guaranteed four shifts in a pay period. Prior to March 2010, when a re-organization occurred at the hospital, employees in her position had a minimum of six shifts per week. Accordingly, Mrs. Nicholson experienced a reduction in income from this source following March 2010. Her employment income from the hospital has historically been:

2007 - $31,017

2008 - $33,726

2009 - $32,461

2010 - $26,250

2011 - $25,091.

[5] Mr. Nicholson suggested to Mrs. Nicholson during cross examination that she was intentionally under-employed because she was not accepting all shifts offered by the hospital. The onus was therefore on Mr. Nicholson to prove the alleged intentional under-employment. He presented no evidence to prove that Mrs. Nicholson had turned down shifts that had been offered to her, other than arguing that, because she was out of town on occasion, she was therefore not available for additional shifts. He has not met the onus of proving intentional under-employment.

[6] Mrs. Nicholson also earns income from cleaning a doctor's office. Her income from office cleaning can be summarized as follows:

Gross Net

2007 $5,760 $1, 472

2008 $5, 350 $1, 546

2009 $5, 920 $2,206

2011 $5, 580 $2, 783

[7] Mrs. Nicholson did not report any self-employment income for 2010, although continued the same cleaning schedule that she has in other years.

[8] After completing high school in 1980, Mrs. Nicholson worked as a cashier at a grocery store for approximately fifteen years, taking short maternity leaves when their first two sons were born. In December 1995 the parties moved from Dundas to Orillia, requiring Mrs. Nicholson to give up her job. She remained out of the workforce until their youngest son was almost two years of age, at which time she began cleaning new homes for a builder. When that job ended two years later, she performed housecleaning for private clients for the next two to three years before securing her current job at the hospital.

[9] At the beginning of the marriage Mr. Nicholson was employed as a janitor. When the parties were still living in Dundas, Mr. Nicholson completed an electrician’s course at Mohawk College and thereafter obtained his certification. He worked in that career even after the parties moved to Orillia in 1993, obtaining salaried employment. At that time, Mr. Nicholson also began operating his own company, Lighthouse Electric, a sole proprietorship through which he performed electrical jobs for private customers. Along the way, Mr. Nicholson worked as a volunteer firefighter, and continued with that pursuit after the move. Fourteen or fifteen years ago Mr. Nicholson obtained a full-time position as a firefighter for the City of Orillia. He works approximately 14 shifts per month, which has allowed him to continue to operate Lighthouse Electric.

[10] Mr. Nicholson’s employment income from the City of Orillia has been:

2007 - $71,411

2008 - $73,772

2009 - $88,009

2010 - $79,773

2011 - $84,690

[11] Mr. Nicholson gave evidence that his base salary for 2011 was $76,667.94. He testified that it will be higher in 2012 due to an annual raise, although he was not able to say how much of a raise he expects to receive. Mr. Nicholson also receives recognition pay of 3% of base salary, and receives an additional $7.00 per hour for working statutory holidays. In 2011 the amount earned for working statutory holidays was $504, an amount that Mr. Nicholson confirmed, on average, would be a typical annual amount. In 2011 Mr. Nicholson also worked overtime, receiving $805.20. In addition to these amounts Mr. Nicholson is entitled to sick pay, depending on whether he uses the sick days allotted to him through the year. Also, based on whether there is a retroactive adjustment to pay through negotiations under his collective agreement, Mr. Nicholson may, in some years, be entitled to both regular and overtime retroactive pay. Given these variables, one approach would be to take an average of the last three years in order to estimate Mr. Nicholson's current income. That average is $84,157. Given that figure, it would not result in an injustice to use Mr. Nicholson’s 2011 T4 employment income of $84,690 as the basis for a support order for the relevant periods (2011 and 2012).

[12] Mr. Nicholson's declared income from Lighthouse Electric can be summarized as follows:

Gross Net

2007 $0 $249

2008 $0 $199

2009 $0 $159

2010 $3,246 $782

[13] Mr. Nicholson’s evidence was that he could not earn income as an electrician between 2007 and 2009 because the regulations had changed and he did not have a master electrical license. He could not recall when he was granted such license. Mrs. Nicholson testified that Lighthouse Electrical was operated from their home during the marriage up until the time of separation, and that Mr. Nicholson received cash for his work.

[14] While Mrs. Nicholson was content to resolve the issue of spousal support by using their respective T4 incomes only, Mr. Nicholson was unwilling to do so and insisted that their self-employment earnings be taken into account. I decline to do so, as Mr. Nicholson failed to give the court reliable evidence of his current income from this source. Mr. Nicholson did not present his 2011 income tax return at trial, or any of Lighthouse Electrical’s income statements for 2011. His testimony that he was unable to earn income between 2007-2009 as a result of not having his master’s license was uncontradicted, as was Mrs. Nicholson’s evidence that he was paid cash and ran his business out of the house during the marriage. The evidence is unclear about how much was earned by Mr. Nicholson during the marriage from this secondary source. In the absence of reliable evidence of Mr. Nicholson’s potential income, it seems just that I disregard the self-employment income of each. This is undoubtedly to the benefit of Mr. Nicholson, as the evidence persuades me that he has the ability to net as much self-employment income as Mrs. Nicholson – and in fact, much more so. His skills, experience and qualifications as an electrician permit him to earn, should he choose to pursue it, a significant amount of additional income. The same cannot be said for Mrs. Nicholson; she cannot command the same wage as a cleaner.

[15] Due to the length of the marriage and what transpired during it, any spousal support award will have both a compensatory and a need-based component. Mr. Nicholson was the high income earner, and he was given the opportunity to return to school and then pursue not just one, but two, careers. It was also a traditional marriage in that Mrs. Nicholson's job choices were affected by her limited education and narrow job experience, having three children early in the marriage, and being primarily responsible for their care. When the children were younger she remained in, or accepted, jobs of the type that allowed her the flexibility required to raise a family. Since separation, Mrs. Nicholson has lived in two different properties owned by her parents, and they have paid the utility bills for her. She indicated that Mr. Nicholson's mother has also assisted the family by buying school uniforms for Neil since separation, an expense that could not be covered by her current budget. Her financial statement sworn April 12, 2012 shows a modest budget that she is unable to meet based on her employment earnings. These factors all attract a spousal support order between the mid-range to high-range recommended in the Spousal Support Advisory Guidelines (the "SSAG"). In addition, Mrs. Nicholson has been bearing the expenses of Neil, and sometimes Bradley, without receiving child support, and in fact has been paying child support under court orders made on January 26, 2011 and November 9, 2011. It was her uncontradicted evidence that she paid child support to Mr. Nicholson even when one or both of their sons were residing primarily with her. However, Mrs. Nicholson took the position at trial that she does not want this court to review child support, other than to adjust it upward to reflect her actual earnings.

Issue #1: A determination of the appropriate quantum of spousal support from September 1, 2010 to and including June 1, 2012

[16] The initial spousal support order made by Wood J. on January 26, 2011 requires that Mr. Nicholson pay interim spousal support to Mrs. Nicholson of $1,283 per month commencing September 1, 2010, based on their incomes of $77,100 and $23,000. At the time that that order was made the final 2010 income figures for each of the parties was unknown. The actual 2010 employment income for the parties was $79,773 and $26,250, respectively. In that same order, Mrs. Nicholson was ordered to pay child support for two children in the amount of $348 per month; the Child Support Guidelines (the “Guidelines”) dictate that the correct amount would have been $389 per month. Accordingly, based on the SSAG the appropriate amount of spousal support payable by Mr. Nicholson to Mrs. Nicholson effective September 1, 2010 was $1,319 per month.

[17] On November 9, 2011 Wood J. varied the spousal support order to require that spousal support be increased to $1,441 per month, commencing December 1, 2011 until May 31, 2012. However, Mr. Nicholson's income increased in 2011 to $84,690. Mrs. Nicholson's employment income for 2011 was $25,092. For the first five months of 2011, Bradley and Neil continued to live with their father. Based on Mrs. Nicholson's income, the monthly child support payment due under the Guidelines was $376. Taking these factors into account, this court finds that the correct amount of spousal support payable by Mr. Nicholson from January 1, 2011 to May 1, 2011, inclusive, was $1,500 per month.

[18] The order of November 9, 2011 also provided that any child support arrears accrued during the period June 1, 2011 to August 1, 2011 were to be rescinded. This was due to the fact that Bradley and Neil shared their residency with both parents during the summer. On these facts, this court finds that the appropriate quantum of spousal support under the SSAG is $2,235 per month, for those three months in question.

[19] Effective September 1, 2011 Neil began to reside primarily with his father. Mrs. Nicholson became liable for Guideline support in the amount of $212 per month. This situation continued until the end of March 2012, at which point Neil began to live primarily with his mother. For the period September 1, 2011 to and including March 1, 2012, this court finds the appropriate amount of spousal support in accordance with the SSAG is $1,695. Commencing April 1, 2012, based upon the parties’ respective 2011 incomes, this court finds that the amount of spousal support payable is $2,235.

[20] Based upon these findings, one of the issues for trial was a determination of how much spousal support was owed by Mr. Nicholson as of June 30, 2012, having regard to Mrs. Nicholson's child support obligations. Following the closing of evidence this court received, at its invitation, up-to-date statements of arrears from the Family Responsibility Office (“FRO”) showing a record of support payments made by both of the parties. Each of the parties was given the opportunity to make submissions in writing on the accuracy of the record kept by the FRO. Based upon those submissions, as well as the evidence heard during trial, I find as a fact that Mr. Nicholson has made payments totalling $25,223.50 from the date of the initial order of January 26, 2011. To explain, he made three direct payments to Mrs. Nicholson in the amount of $1,283 prior to collection by FRO, which she admits to having received. Mr. Nicholson then made total payments through FRO of $19,630.50 from March 2011 until June 1, 2012, which Mrs. Nicholson accepts as accurate. Thereafter Mr. Nicholson provided a record showing that his employer deducted remittances on June 13 and June 27, 2012, each in the amount of $849.50.

[21] As for Mrs. Nicholson, the statement of arrears provided by FRO does not take into account three child support payments made by her directly to Mr. Nicholson prior to FRO commencing the collection process. These payments were each in the amount of $348. Mr. Nicholson concurs that he received these direct payments. He also makes no objection to the statement of arrears from FRO, which indicates that Mrs. Nicholson paid total child support payments of $2,587.26 through that agency. Accordingly, I find is the fact that Mrs. Nicholson has made child support payments totalling $3,631.26 since the initial child support order was made.

[22] These findings are summarized in the table attached to this judgment as Table A. As indicated by Table A, the offsetting of child support arrears against the retroactive spousal support results in total spousal support payable, as of June 30, 2012, of $11,538.76.

Issue #2: A determination of the appropriate quantum of support commencing July 1, 2012

[23] This court finds that spousal support should paid in accordance with the SSAG in the amount of $2,176 per month commencing July 1, 2012 and thereafter on the first of each month, for an indefinite duration but subject to variation in the event of a material change in the circumstances of either of the parties, based on Mr. Nicholson’s income of $84,690 and Mrs. Nicholson’s income of $25,091.

[24] Mr. Nicholson gave evidence that he has an interest in a group life insurance policy available through his employment in the amount of $135,000. His sons are currently the named beneficiaries. Given his obligation for spousal support, it is appropriate for such support to be insured through this policy for as long as it is available to him through his employment. Because at least one of his sons continues to be a dependent, a portion of the insurance funds may continue to be designated for his potential support.

[25] Mr. Nicholson also has a benefit plan available to him through his employment. His evidence was that Mrs. Nicholson continues to be covered under the plan.

Issue #3: Equalization

[26] Exhibit 8 at trial was Mrs. Nicholson’s Net Family Property statement, which indicates that she is required to make a payment to Mr. Nicholson in the amount of $8,249.48 in order to equalize the parties’ net family properties. The parties have sold their matrimonial home and the proceeds are being held in trust pending direction from the court.

[27] Mr. Nicholson did not present his own Net Family Property statement, but raised several areas of disagreement.

[28] One of the most valuable of the parties’ assets is Mr. Nicholson's OMERS pension. Mrs. Nicholson also has a pension. The parties have agreed that they will divide their pensions at source as now permitted by the Pension Benefits Act.

[29] The first dispute is the value of the parties’ vehicles. Neither provided evidence of the value of the vehicles at the date of separation. Mrs. Nicholson owns a 2006 Mazda 3, and Mr. Nicholson owns a 2009 Hyundai Sante Fe. Each of the parties provided estimates of value from dealers. However each estimate is hearsay; the individuals giving the estimates were not asked to be present in court to give their testimony under oath, where it can be tested by cross-examination. Hearsay is inadmissible because of its inherent unreliability, unless it can either fit within one of the recognized hearsay exceptions or meet the test of reliability and necessity set out by the Supreme Court of Canada in R. v. Khan 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and cases that followed. The estimates of value do not fall into the category of an exception to the rule against hearsay, and no evidence was given to assist the court in assessing the concepts of necessity and reliability. For these reasons neither estimate can be given any consideration. As an alternative, Mrs. Nicholson's counsel suggests that the values ascribed to these assets should be equivalent to the value of the loans outstanding against them on the date of separation. For the Mazda, the amount outstanding on date of separation was $4,904. The Hyundai's outstanding loan as of the date of separation was $26,873. Mrs. Nicholson provided evidence of both of these loans, which was not disputed by Mr. Nicholson. The Hyundai was financed through Scotiabank under a Conditional Sale Agreement dated April 3, 2008, which indicated that the purchase price of the vehicle being financed was $40,717.67, not including the cost of borrowing. Mr. Nicholson traded in a vehicle having a net value of $3,505, which brought the total balance owed under the lease to $38,380.82. The conditional sales contract indicates that on the maturity date of the agreement, being April 2013, there would still be $10,678.95 owing against the vehicle. The Conditional Sale Agreement, therefore, supports the value of the vehicle being advanced by Mrs. Nicholson. There being no contrary evidence presented, this court will accept that the value of the vehicles on the date of separation was $4,904 and $26,873, respectively.

[30] Another area of dispute is the amount of the notional income tax to be deducted from both of the parties' registered retirement savings plans. Mrs. Nicholson urges the court to adopt a tax rate of 17% for both of the parties, based on the average effective income tax rate used by the consulting actuary who prepared each of the parties’ pension valuations. While giving his evidence, Mr. Nicholson did not present an alternative view, nor offer any evidence on which the court could consider a different tax rate. Mrs. Nicholson's approach is not unreasonable and will be adopted by the court.

[31] Mr. Nicholson was of the view that both a diamond ring and an emerald and diamond ring should have been included among Mrs. Nicholson's assets. He provided the court with an appraisal for the rings indicating that replacement value for one was $2,495, and $995 for the other. This appraisal suffers from the same hearsay problem as the documents relating to the vehicles, and cannot be given any consideration. There is the further problem that the potentially more valuable diamond ring has gone missing, and neither party gave evidence that could lead the court to the conclusion that one or the other of them has the ring in his or her possession. There was absolutely no evidence led regarding the emerald and diamond ring, either as to its value or in whose possession it may have remained following separation. Given this lack of evidence, this jewellery will not form part of the equalization calculation.

[32] Mr. Nicholson seeks a deduction for the value of real estate owned by him on Connaught Avenue in Hamilton, Ontario on the date of marriage. Mrs. Nicholson admits that such property was owned by Mr. Nicholson on the date of marriage. However, once again the evidence required to prove the value of this asset is missing. Mr. Nicholson testified that he purchased the home for $53,000, although did not say when. He produced a mortgage made on November 14, 1984 in the amount of $43,000, which I infer coincides with the date of purchase. This would be the approximate amount of a conventional mortgage calculated on 80% of the property’s value. The interest rate was 10%, or $4,300 per annum, and interest payments were due monthly in the amount of $425 commencing December 30, 1984. Accordingly only $67 was paid down on the principal sum of the mortgage each month. By the date of marriage 23 months later, only $1,541 would have been paid against principal, assuming all payments were up to date. If all of these assumptions are correct, the equity in the home on the date of marriage would have been approximately $11,541, less potential real estate commission calculated at 5%, or $2,650. Again, this assumes that the property value did not rise or fall by the date of marriage. Giving Mr. Nicholson’s evidence its most generous interpretation, the maximum deduction that he could obtain for this asset would be $8,891. He testified that the home was sold in 1991 for $145,000, and that he should obtain a deduction of $92,000, but this submission is flawed given that it is only the value on the date of marriage that is relevant. But while the court can draw inferences from evidence, it cannot invent evidence or guess at it; the approach outlined above requires the court to guess the following: whether all of the mortgage payments had been made, the value of the property on the date of marriage, and the market rate being charged for real estate commission in 1986. This is too much guesswork. The onus is on the person who claims the deduction on the date of marriage to prove its value, and Mr. Nicholson has not brought forward the required evidence to establish the value of that deduction.

[33] Mr. Nicholson also seeks a deduction for monies owed to him from a motor vehicle accident that occurred the year before the parties were married. He produced evidence in the form of an account from the lawyer who represented him in that lawsuit, showing that he was paid $36,418.04 in February, 1991. "Deductions" as set out in section 4(b) of the Family Law Act means "the value of property, other than the matrimonial home, that the spouse owned on the date of marriage, after deducting the spouse's debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage". The term "property" is defined in the Act as "any interest, present or future, vested or contingent, in real or personal property…". There is no evidence that any portion of this award is for lost income; to the contrary the court heard evidence that Mr. Nicholson worked as a janitor, electrician and perhaps even a volunteer fire fighter in the time period prior to receiving this award. That being the case, the award would have been made on the basis of non-pecuniary loss and perhaps out of pocket expenses, all resulting from a pre-marriage accident, from which his entitlement to compensation arose on the date of the loss. Although paid to Mr. Nicholson in 1991, I accept that, as of the date of marriage, the monies owed to him in settlement of his claim constituted a future interest in property, for which he should be given a full deduction in the amount of $36,418.

[34] Mr. Nicholson also seeks compensation for a boat that he purchased with part of his personal injury settlement. As I understood the evidence, this was a Four Winns model plus trailer purchased for $22,500 in July 1990. Later, this boat was traded in for the purchase of a Mastercraft ski boat which Mr. Nicholson owns jointly with Mrs. Nicholson's father. It remains at the cottage property owned by Mrs. Nicholson's parents and Mr. Nicholson believes that he should be given compensation for the loss of one half of its value, as he claims that he has not been given access to the cottage property since separation. This is not a problem to be addressed under the Family Law Act on an equalization claim. One half of the value of the boat should properly have been placed on Mr. Nicholson's side of the net family property ledger as an asset. Any claim that he has to its use or ownership should be pursued against Mrs. Nicholson's father. However the court was not presented with any evidence as to the boat's value and therefore it will not form part of the equalization calculation.

[35] Mr. Nicholson raised the issue of the cottage property during his cross-examination of Mrs. Nicholson. He suggested to her that she may be may be on title as a part owner of the cottage property. She agreed that her name may be on title to the property. Her evidence is that the property contains two cottages, the original and a new one built by her parents. During the summers the parties and their children would use the new cottage as their own, and had completed extensive renovations on it. That was the extent of the evidence. Again, it was unclear whether Mr. Nicholson was asserting that Mrs. Nicholson had a true ownership interest in the property, or whether he accepted Mr. Miller's assertion that Mrs. Nicholson may have been placed on title for estate planning purposes only. The deed was not produced, nor was a value provided for the cottage property, nor was evidence elicited from Mrs. Nicholson's parents. If Mr. Nicholson was seriously asserting the position that he was entitled to share in the value of that property through an equalization claim, he needed to take steps well in advance of trial to ensure that the proper evidence was placed before the court.

[36] Similarly Mr. Nicholson wants to have credit for the contents of the newer cottage. No evidence was provided as to what these items were, their present value or who paid for them. It was Mr. Nicholson's personal belief that the value of the contents was between $3,000 - $5,000. In the absence of the appropriate evidence, once again, the cottage contents will not form part of the equalization calculation.

[37] Mr. Nicholson seeks reimbursement of payments made by him following separation.

[38] At the time of separation the parties had a joint line of credit with TD Canada Trust. On the valuation date it had a balance owing of $9,602.97. Following separation Mr. Nicholson opened his own bank account, and principal and interest payments owing on the line of credit were paid by him from that account. At the time of the sale of the matrimonial home, the balance owing was $5,439.70, which was paid out of the funds available after closing. Accordingly, I find as a fact that the amount of $4,163.27 was paid exclusively by Mr. Nicholson following separation, one-half of which was debt belonging to Mrs. Nicholson. He is to be reimbursed in the amount of $2,082.

[39] The parties also had a joint chequing account that at the date of separation was carrying an overdraft in the amount of $2,790.45. Mr. Nicholson's evidence, which like his evidence regarding the line of credit, was not contradicted, was that he alone made all of the minimum interest payments on the overdraft until it was paid out from the closing funds of the matrimonial home. He indicated that these payments were $40-$50 per month; Exhibit 18 shows the overdraft interest fees to range between $44.42 to $50.33 each month, with the average on the three bank statements provided being $48. The balance paid out on closing was $2,785. Accordingly, I accept that Mr. Nicholson was regularly making the monthly interest payments, one half of which were the responsibility of Mrs. Nicholson. Twenty-four months elapsed between the date of separation and the date of the closing of the matrimonial home; at $48 per month Mr. Nicholson paid $1,152, one-half of which should be reimbursed to him, in the amount of $576.

[40] Mr. Nicholson also claims credit for making contributions to Mrs. Nicholson's RRSP in the amount of $75 per month, up until January 2011. This evidence was not disputed by Mrs. Nicholson. Accordingly, Mr. Nicholson should have credit for payments made over a period of seven months in the amount of $525.

[41] Mr. Nicholson also seeks credit for paying down the mortgage between the date of separation and the closing date for the matrimonial home. The evidence filed by the parties indicates that the mortgage balance on March 26, 2010 was $262,152.38, and on June 29, 2010 the balance had dropped to $260,350.87. The balance on the date of separation was somewhere between these two figures, the principal being paid down at a rate of approximately $600 each month. That being the case, I find as a fact that the mortgage balance on the date of separation was approximately $260,951.37. The final payout on the date of closing was $243,258.44. Mr. Nicholson seeks an adjustment for the difference of $17,692.93, one-half of which would be the responsibility of Mrs. Nicholson, in the amount of $8,846.46. However, Mr. Nicholson had exclusive use and enjoyment of the property for the twenty-four month period between separation and when the property sold. Balanced against this is the fact that Mrs. Nicholson was provided with free housing by her parents following the separation. Although it was suggested that Mr. Nicholson was responsible for any delay in the sale of the matrimonial home, the evidence does not satisfy me that fault lies exclusively on one party over the other. On these facts I find that it would not be fair to expect Mr. Nicholson alone to bear the burden of the mortgage, and accordingly he will receive reimbursement for $8,846.46.

[42] In summary, the equalization calculation for these parties, having reference to Exhibit 8 and my findings on the disputed items as set out above, is as follows:

Net Family Property Calculation

Applicant

Respondent

Assets on valuation date

Matrimonial home

$200,000

Household goods

Divided equally

2006 Mazda

$4,904

2009 Hyundai

$26,873

Honda dirt bike

$1,200

Tools

$800

Pensions

Divided equally

Bank accounts and savings

$63,820

$45,966

Lighthouse Electric

$713

Total

$268,724

$275,552

Liabilities on valuation date

Mortgage

$121,629

Line of Credit

$2,720

Vehicle loans

$4,904

$26,873

TD chequing overdraft

$1,393

Notional taxes on RRSP

$63,665.56 x 17%-Applicant

$46,000 x 17%-Respondent

$10,823

$7,820

Credit cards

$699

$5,464

Total

$142,168

$165,899

Total Assets minus Liabilities on Valuation Date

$126,556

$109,653

Assets on Date of Marriage

Motor vehicle accident settlement

$36,418

Liabilities on Date of Marriage

Total Assets minus Liabilities on Date of Marriage

$36,418

Net Family Property

$126,556

$73,235

[43] The equalization of the parties’ net family properties results in the applicant being liable to pay the respondent an equalization payment in the amount of $26,660.50.

[44] To this amount must be added the adjustment for payments made by Mr. Nicholson on behalf of Mrs. Nicholson, post-separation, as follows:

Joint line of credit $2,082

Overdraft $576

RRSP $525

Mortgage payments $8,846

Total $12,029

[45] However, this court also recognizes that it would not be fair to expect Mrs. Nicholson to share the burden of one half of the debts during the time period in which she was not receiving any spousal support. The first support order did not take effect until September 1, 2010, three-and-half months after separation. As determined above, the appropriate amount of support that should have been paid during the period in question, based on Mr. Nicholson's 2010 income, was $1,319. Accordingly, the amount to be reimbursed to Mr. Nicholson will be reduced by the amount of spousal support not paid during that three and a half month period, being $4,616.50.

[46] In the result, the reimbursement given to Mr. Nicholson will be the difference between $12,029 and $4,616.15, which is $7,412.50.

[47] A final order shall issue in the following terms:

(1) The respondent shall pay to the applicant spousal support in the amount of $2,176 per month commencing July 1, 2012 and on the first of each month thereafter based on Mr. Nicholson’s 2011 income of $84,690 and Mrs. Nicholson’s income of $25,091, for an indefinite duration but subject to variation in the event of a material change in the circumstances of either of the parties;

(2) The spousal support shall be indexed on an annual basis;

(3) Retroactive spousal support shall be fixed in the amount of $11,538.76 effective June 30, 2012. This amount shall be payable from the respondent’s share of the sale proceeds of the matrimonial home;

(4) All spousal support arrears existing as of the date of this order shall be rescinded;

(5) All child support arrears existing as of the date of this order shall be rescinded;

(6) The child support order dated November 9, 2011 is hereby terminated and neither party shall pay child support to the other;

(7) The respondent shall name the applicant and the children Bradley Nicholson and Neil Nicholson as the beneficiaries of any benefit plan available to him through his employment for so long as such plan is available to the respondent, and as long as the applicant and the children qualify for coverage under the plan;

(8) For so long as the respondent is obligated to provide spousal support to the applicant, he shall name the applicant as the irrevocable beneficiary of his group life insurance policy available through his place of employment to the extent of $100,000. The respondent shall provide proof to the applicant’s solicitor that he has placed this coverage within 45 days of this order. The respondent shall maintain the premiums and shall not cancel coverage under the policy for as long as he is obligated to provide spousal support to the applicant, or until further order of the court;

(9) The applicant and the respondent shall direct each of their respective pension administrators to divide each of their pensions in accordance with the Pension Benefits Act;

(10) From the sale proceeds of the matrimonial home, the applicant and the respondent shall be equally responsible for payment of the joint line of credit and the overdraft on the joint chequing account, which amounts have already been paid from the funds available on closing;

(11) The respondent shall indemnify the applicant with respect to the debt associated with the 2008 Hyundai Sante Fe, being the joint loan held with TD Canada Trust, account no. 56416-01733-62. The applicant shall indemnify the respondent with respect to the debt associated with the 2006 Mazda, being the joint loan held with TD Canada Trust, account no. 36426-00382-75. Each shall own the vehicle currently registered in his or her name free from any claim by the other;

(12) The applicant shall pay to the respondent an equalization payment of $26,660.50 from her share of the sale proceeds from the matrimonial home, plus a further payment of $7,412.50 from her share of the proceeds on account of joint debts paid by Mr. Nicholson following separation, for a total payment of $34,073;

(13) The applicant and the respondent shall divide evenly between them the sale proceeds from the sale of the matrimonial home located at 3600 Cambrian Road, Washago, subject to the payments referred to in paragraphs 3 and 12 above;

(14) Mr. Holdsworth is given the authority to divide equally the net proceeds of sale after payment of any reasonable fees charged by him for additional work undertaken by him since the closing date on behalf of the parties, and to pay out the amounts to each of the parties set out in paragraphs 3, 12 and 13 above, without a signed direction from the parties;

(15) There shall be no order with respect to custody or access;

(16) Mr. Nicholson’s approval of the draft order is hereby dispensed with.

HEALEY J.

Released: August 8, 2012

TABLE ‘A’

CHILD SUPPORT AND SPOUSAL SUPPORT CALCULATION

DATE

CHILDREN’S RESIDENCE AT SPECIFIC TIME PERIODS

No child support claimed by Applicant when either child in her care

SPOUSAL SUPPORT THAT SHOULD HAVE BEEN PAID BY RESPONDENT

Between mid & high SPOUSAL SUPPORT PAYABLE BY RESPONDENT

CHILD SUPPORT THAT SHOULD HAVE BEEN PAID BY APPLICANT

BASED ON CHILDREN’S RESIDENCE

AMOUNT PAID BY RESPONDENT

AMOUNT PAID BY APPLICANT

Sept 2010