Gordana Cernic v. Primoz Cernic, 2012 ONSC 922

COURT FILE NO.: 07-FD-325723FIS

DATE: 2012-02-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gordana Cernic

Applicant

– and –

Primoz Cernic

Respondent

HEARD: December 13,14,15,16,19, 2011

KITELEY J.

REASONS FOR DECISION

1The Applicant and Respondent had both been represented at some points during the proceeding. At trial, neither was represented. The trial started on Tuesday December 13th. On Monday, December 12th, the parties had spent most of the day with the applicant’s former counsel. With her assistance, the parties signed Minutes of Settlement that contained the following:

(a) The Respondent will pay indefinite spousal support commencing April 1, 2011 and ongoing based on his total employment income (inclusive of base salary, achieved bonuses and vacation pay) earned from his employer ULC in 2011 pro-rated for a period of 12 months. The amount of monthly spousal support shall be submitted to trial for determination.

(b) The Applicant acknowledged receiving from him $1600 on a without prejudice basis, as spousal support for the months of September 2011 through to December 2011. This amount was in addition to the $850 paid through the Family Responsibility Office pursuant to an order made May 31, 2010. The Respondent has therefore paid spousal support of $2450 for each of the months of September through to December 2011 for a total of $9800.

(c) The Applicant acknowledged receiving $4,800 as a lump sum toward the Respondent’s spousal support obligation. Once the court determines the amount of spousal support to be paid commencing April 1, 2011, the Respondent will pay to the applicant the difference between the amount paid for the period April to December 2011 and the monthly amount ordered less a deduction of $4,800.

(d) Out of his share of the net proceeds of sale, the Respondent will pay a lump sum of $10,000 tax free, meaning it will not be included in the Applicant’s income or deductible from his income. The amount will be paid within 30 days of signing the Minutes of Settlement. Subject to an outstanding interest claim on arrears of spousal support, the payment of $10,000 was made and accepted as full and final settlement of the Applicant’s claim for retroactive spousal support for the period prior to April 1, 2011.

(e) Paragraphs 6 – 16 provided for agreed upon disclosure obligations, leaving two issues for trial.

(f) The Respondent agreed to secure spousal support in the event of his death by maintaining the Applicant as an irrevocable beneficiary of a life insurance policy so long as he is required to pay spousal support and so long as the policy is available through his employment. The parties did not agree whether the applicant would be the beneficiary of the entire policy or a lesser percentage. They did not agree on whether the Respondent’s support obligation would be a first charge against his estate.

(g) The Applicant and Respondent had been sole shareholders of a private corporation. They agreed on various accounting issues but were unable to agree on whether the Applicant would be paid 50% of the value of its capital assets.

(h) In the equalization of Net Family Property, the parties agreed to some items, namely that the Respondent would rollover RRSP’s to the Applicant. They did not agree on the value of several specific items.

2Pursuant to the Minutes of Settlement, the parties had resolved many issues, leaving the following for trial:

(a) The amount of monthly spousal support including whether the Applicant has an obligation to work toward her self-sufficiency;

(b) The nature and extent of disclosure to be shared on a bi-yearly or yearly basis;

(c) The Applicant’s claim for security for spousal support;

(d) The Applicant’s request that spousal support be indexed annually in accordance with the Consumer Price Index for Toronto;

(e) The balance of the equalization payment;

(f) Whether the Applicant should be paid 50% of the value of the capital assets of the corporation;

(g) Whether the divorce should be granted on the grounds of separation or cruelty.

3At the conclusion of the trial on December 19th, I reserved and set February 13th as the date for the parties to attend to receive the judgment. I directed them to carry out the terms of the Minutes of Settlement with time expectations, namely paragraph 4 that required the payment of $10,000 to the Applicant from the net proceeds of sale of the former matrimonial home; paragraph 22 that required payment on account of her interest in Procon Inc. in the amount of $924.00; and paragraph 25 that required the RRSP rollover in the amount of $27892. According to paragraph 7, the Respondent was required on January 15th, 2012 to provide disclosure of his income inclusive of any bonuses. I expected the Respondent to provide that disclosure. However, I directed that neither was to make any disclosure requests of the other before February 13th, 2012. I directed that the payments described in paragraph 2 of the Minutes of Settlement would continue, namely that the Respondent would pay the $850 per month pursuant to the order dated May 31, 2010 plus an additional $1600 per month for a total of $2450 for each of January and February 2012.

BACKGROUND

4The Applicant was born on July 15, 1953. The Respondent was born on November 24, 1950. They were married in Yugoslavia on February 1, 1976 when she was 22 and he was 25. Their son Borut was born January 31, 1980 and their son Boris was born September 20, 1984.

5On March 23, 1993 the family emigrated to Canada.

6Between 1993 and 1999, the family lived in rental accommodation. In 1999 they bought a house in joint names. In 2004, the Applicant was diagnosed with colon cancer and had surgery.

7The parties separated in February 2007 when, with the assistance of their sons, the Applicant left the matrimonial home while the Respondent was at work. The Applicant says the separation was February 21st while the Respondent says it was February 20th. There are no financial implications to that difference. By the time of the separation, Borut was living independently. Boris was then at York University and he has remained with his mother since the separation.

8The matrimonial home was sold for $285000 and the agreement of purchase and sale closed in October 2007. The net proceeds of sale were $151,730.98. Various payments have been authorized by court orders. There is approximately $58000 in the trust account of the real estate lawyer.

PROCEDURAL HISTORY

9The Application was signed February 21, 2007 and the Respondent was served before the end of that month. On April 30, 2007, Justice Backhouse made an order on consent requiring the Respondent to pay spousal support in the amount of $2916 commencing May 1, 2007. She directed the Respondent to pay the carrying costs of the matrimonial home and ordered that it was to be listed for sale forthwith. The Applicant was directed to provide the Respondent with a medical report addressing her ability to work.

10On March 27, 2008, Czutrin J. made an order that the Applicant would receive $10,000 and Respondent would receive $30,000 from the proceeds of sale of the matrimonial home. On a temporary basis, Boris remained a dependent and the Respondent had a support obligation to him. Boris was directed to provide copies of his 2007 income tax return and T4’s and, at the end of that school year, provide proof of full time attendance and transcript of marks and provide documentation of full time registration and his tuition invoice. The Respondent was required to reimburse the Applicant for the 2007 tuition at George Brown College forthwith from his share of the net proceeds. The Respondent was required to make a further payment of tuition when due out of his share of the proceeds. Commencing November 1, 2007, the Respondent was to pay to the Applicant $850 per month for child support. Commencing January 1, 2008, the Respondent was to pay to the Applicant $3100 in interim spousal support with arrears to be paid from his half share of the net proceeds of sale. He directed costs submissions to be exchanged by April 30, 2008.

11On May 13, 2008, Czutrin J. ordered the Respondent to pay costs of the March 27th motion fixed in the amount of $5500 including disbursements but not payable until the resolution of all issues.

12On February 23, 2009, Justice Allen held a settlement conference.

13In May 2010, the Respondent brought a refraining motion. On May 11th, an order was made on consent requiring the Respondent to provide disclosure to the Family Responsibility Office and the matter was adjourned.

14On May 18th, 2010 Czutrin J. issued a refraining order but he ordered that $13800 be paid to the Applicant from the Respondent’s share of the net proceeds of sale. Czutrin J. subsequently ordered that that payment was on account of the Respondent’s obligation to make an equalization payment.

15On May 25th, 2010 Czutrin J. heard the Respondent’s motion to change the order of March 27, 2008 that required the Respondent to pay $850 per month child support and $3100 per month spousal support. In his endorsement released May 31, 2010 Czutrin J. ordered that the Applicant was to receive $20000 from the net proceeds of sale of the matrimonial home as well as her 50% share of the net proceeds of sale. With certain qualifications, $11500 was to be paid to the Applicant from Procon and each of the Applicant and Respondent were to receive 50% of what was left in Procon. The costs he ordered on May 13, 2008 in the amount of $5500 were to be paid to the Applicant from the Respondent’s share of the net proceeds of sale of the home. The Respondent was to pay $850 per month to the Applicant for spousal support commencing May 1, 2010.

16On October 13, 2010 Czutrin J. set the trial date for January 10, 2011 and ordered disclosure. He also scheduled a Trial Management Conference for January 5, 2011.

17On January 5, 2011 Czutrin J. held a Trial Management Conference at which time he removed it from the trial list and he adjourned it to a date in April.

18On March 22nd, 2011, Justice Harvison Young heard the Applicant’s motion for an order compelling the Respondent to pay Boris’ final year tuition at George Brown College, an order for disclosure, an order finding the Respondent in contempt of orders made by Czutrin J. dated May 31, 1010 and October 13, 2010, an order for retroactive spousal support, and other relief. In her endorsement dated March 23rd, Justice Harvison Young made an order on consent that the Respondent would pay to the Applicant $2656 plus interest in the amount of $245.80 that represented tuition for Boris’ final year at George Brown College. The balance of the wife’s motion including the request that the Respondent be held in contempt was heard and was dismissed.

19On April 20, 2011, Czutrin J. held a settlement conference which he adjourned to May 4th. It was further adjourned to May 13th when he set June 10th as the date to be spoken to.

20On June 24, 2011 Czutrin J. set the trial for the week of December 12, 2011 with a Trial Management Conference on December 7th. He also ordered that either party could bring a motion for disclosure.

21On September 8, 2011, the parties signed an interim separation agreement pursuant to which, commencing September 1, 2011, and on the first of each month thereafter, the Respondent paid $1600 per month in addition to the payment of $850 required pursuant to the order made on May 25, 2010. And the Respondent agreed to pay $4800 on account of retroactive spousal support.

22The endorsement from the Trial Management Conference held by Goodman J. on December 7th, 2011 contains the following:

Ms. Cernic insists that she has no intention of relying on medical reports of doctors in relation to her health [she alleges numerous emotional and physical health problems]. She asserts that she cannot work, at least in part, because of all her medical appointment commitments. She insists that she wishes to go to trial without relying on medical reports. Mr. Cernic had asked for a “medical report” and/or a “vocational report”. He has never moved for an independent medical or for a vocational assessment. There is some allegation by him that he had been relying on a representation from Ms. Cernic’s former counsel that a medical report (updated at the time, I believe) was forthcoming. Yet, today, Ms. Cernic states that she does not rely on expert’s reports to support her evidence overall that she cannot work to contribute to her support. Mr. Cernic needs to consider his position regarding his request for a medical report and/or a vocational assessment. I do not comment today on his entitlement at this date to it of them. Ms. Cernic wishes to proceed with the trial.

Ms. Cernic intends to lead evidence about abuse by her husband stating it is relevant to her lack of employability. Mr. Cernic’s position is that he asked for details of this proposed evidence and was not given it. Further, it is not relevant.

Ms. Cernic’s witnesses:

(1) She will testify;

(2) Borut Cernic – the abuse by Mr. Cernic – goes to employability of Ms. Cernic;

(3) Irene Gabinet – social worker – the abuse by Mr. Cernic and employability;

(4) Rajna Pajkic – neighbour – abuse – goes to employability.

23At the outset of the trial, the Applicant confirmed that she would not be relying on medical reports.

EVIDENCE ON BEHALF OF THE APPLICANT

A. Evidence of the Applicant as to Grounds of Divorce

24The parties have been separated for more than 1 year and a divorce could be granted on that ground. However, the Applicant insists on seeking a divorce on the grounds of the Respondent’s cruelty.

25In her Application, she alleged that the Respondent had physically assaulted her on several occasions during the marriage. She referred specifically to May 19, 2004 and April 14, 2006. She also alleged that he had been psychologically and financially abusive to her to the extent that it had made continued cohabitation intolerable. She alleged that he only gave her a minimal amount of money for her needs and made her account for every cent that she spent.

26In her evidence in examination-in-chief, the Applicant said that after 31 years of marriage she was forced to leave her home. She said she was afraid of the Respondent and that he was cruel. She said that since 2001 (when she had ceased working), she was making meals fresh for him every day and that everything had to be served on a white cloth. She was not allowed to call anybody and somebody could call her. She said on one occasion he locked her outside in the garden. One day in front of both of the children, he got upset and started breaking the whole living room. Then he started pushing her down the stairs. After she got cancer, she thought that that was a trigger. In August of 2004 after her surgery for colon cancer, they had a guest from Europe with them for the summer. The Respondent pushed her downstairs and then threw her down the basement. She said that he did it several times but she never called the police. She said on that occasion in 2004, she was all bruised. It was summertime. He told her to cover the bruises so the guest would not see. She showed Borut the bruises. Borut told his father not to do it or he would call the police. In response, his father said that he would charge him rent to live in the family home. She described the Respondent choking her and shaking her by the shoulders and squeezing her head and then he stormed out.

27The Applicant said that she was raised to look after her husband and children and if the marriage did not succeed it would be her blame and her shame so she stayed.

28The Applicant spoke about the budget that he imposed on her that was the equivalent of $9.50 per person per day. After her cancer operation, she said he increased it to $11.50 per day but she had to eat garbage to give him three home-made meals and snacks each day. She considered this to be financially abusive. She observed that based on his current budget, he is now spending more on himself than he allowed her to spend on the four of them at the time.

29The Applicant said that at the time of her cancer surgery in May 2004 the Respondent was unemployed. He was yelling and nervous and was swearing at her. He made references to her being dead and told her she should go to Belgrade and settle the apartment there that she owned so that he did not have a problem to inherit it.

30In late 2005, the Applicant contacted the St. Joseph’s Women’s Health Centre and began participating in a group. She was put in touch with a transition worker who helped her get on a waiting list for subsidized housing. She said she couldn’t take any money from the bank or he would kill her so, in advance of leaving the matrimonial home, she cashed in air miles at the Dominion Store. When she left in February 2007 she said that she and her younger son Boris lived in an empty apartment and received only $300 per month until the order was made by Justice Backhouse on April 30, 2007 requiring the Respondent to pay spousal support of $2916 per month.

31The Applicant said she has depression and post traumatic stress disorder and battered wife syndrome. She said she has been seeing a psychiatrist weekly for 6 years and has done art therapy for a few months every year. For 2 or 3 months she had volunteered with the elderly in serving Sunday meals. She had also volunteered at a residence for young women with children who don’t have a place to live. She said it was a way for her to get a metro pass but she also liked the work. She has also been a volunteer walker with Toronto Animal Services but had to stop because a problem with her shoulder interfered with walking dogs.

32The Respondent started his cross-examination by repeating her allegation that she spent 30 years in an abusive marriage. She corrected him and said it had been 31 years. Because she had referred to an incident in Belgrade, he reviewed her memory of that event. She said the first time he abused her was in 1980, after about 4 years of marriage. She then talked about moving from the apartment they shared with her parents into a 2 bedroom apartment. I had some difficulty following where events occurred and when. The Respondent challenged her version of the events in Belgrade and suggested that he had moved out because she had been abusing him but she said she did not recall that. The Respondent suggested that they agreed that an incident happened in Belgrade in 1987 or 1988 when he hit her with the slipper. She insisted it wasn’t a slipper but a wooden clock and it was 1986. In response to his question whether they had gone to mediation, she said not immediately and then said that they had gone to a psychiatrist because he had choked her from behind. When he pressed her for why she had not asked for help, she said it was because she felt shame, because, until she came to Canada, she thought it was her fault, and that in the Balkans, men always beat their wives or kill them. She insisted that the night he “beat her” with the clock, she died.

33The Applicant agreed that she was excited about coming to Canada but concerned about leaving everything behind and having to find jobs and get established here.

34In his evidence, he took the position that she was cruel to him. In an effort to demonstrate her behavior towards him, the Respondent asked her when she started stalking him and she denied that she had done that. He showed her emails dated in April and July 2001 where she was critical of his actions in a way she would only know if she had been following him. But she either didn’t remember sending them or said that the contents weren’t her style of writing, or some sentences were hers but some sentences were made up.

35Because of the allegation that he had financially abused her, the Respondent reviewed their historical expenses in 2004. She insisted that he had lowered her daily allotment before he left his job voluntarily and when she became ill.

36Because of the allegation that she had been socially isolated and cut off from friends, he asked what friends she was referring to. She named two people. She insisted that he demanded that she not talk on the phone except when he was in the bathroom and that he intimidated her.

37To demonstrate that the relationship appeared to be sound, he showed her pictures of a trip to India in 1980 where she had accompanied him because he was on a working assignment for 4 months; a holiday to Slovenia in 2003; pictures of one of her trips to Jamaica in 2004 or 2005; a holiday to Cuba in 2006 as well as a holiday to Paris in 2006, and an undated photo of a trip to Stratford, Ontario. He asked her if she said that he beat her on all of these trips. On the trip to Paris, she said he threw a water bottle at her when she wanted to go out to eat. On the trip to Slovenia she wasn’t afraid of him because she knew she would be safe staying with his family but he was critical of a dress she wore and said that she looked like a whore. As for the Paris trip, she had spoken with someone who I understood was her contact at the Women’s Health Centre who had said she should go along and pretend everything was normal while she was preparing to leave him and was waiting for an apartment to become available. She also said that they had both been invited to the wedding of their best man and she wanted to go and see him and see Paris.

38The Respondent challenged her about her involvement with the Women’s Health Clinic. She said she had seen a program on tv about family abuse and identified with it and then called the clinic. She agreed that she had not provided “independent evidence” of his abuse but that the social worker had trusted her. She agreed that in April 2006 she had begun preparing to leave him and that it took her more than a year to appreciate the experience of other women in similar situations.

39The Respondent asked her why she insisted that the Legal Aid lien and the air miles had been spent in anticipation of the divorce. As for the Legal Aid lien, she repeated that she had to leave the marriage “out of necessity” and that she left to “save my life”. She insisted that his violence increased after she got cancer. She also said that he had beaten her for $5 of Air miles. She said she knew she would be on social assistance when she left and she cashed in air miles to buy supplies and groceries.

40To challenge her alleged fear of him, he asked if she had a special cell phone that was direct dial to the police. She agreed she did have one and she agreed that she had never used it. She also spoke about a time when the police were called to their rental home (before 1999) and she said she would show him when she asked questions. She did not deal with that in her cross-examination of him.

41In support of her allegation of cruelty, the Applicant called three witnesses: a social worker, friend and Borut.

B. The Evidence of Irene Gabinet

42Irene Gabinet is a Clinical Counsellor at St. Joseph’s Hospital Women’s Health Centre. She has worked at the Health Centre in various capacities for over 17 years. She has several post secondary degrees including in psychology and in adult education. She described how women must self-refer to the Centre. When a woman calls, there is initial intake on the phone to gather information about what the caller is looking for. In 2006, Ms. Gabinet was running the support group so she did a face-to-face interview with the applicant and the 2 facilitators of the group to see if it was the right fit. At that time, the maximum number of sessions allowed was 24 for 2 hours a week. She said that she had met the Applicant in October or November 2005 and that she had joined the group in November 2005.

43Ms. Gabinet could not recall any situation where a woman became part of the group and yet she had not been involved in abuse. Nor could she recall a situation where someone pretended to be abused and came to the group to socialize.

44Ms. Gabinet described how the group is psycho-educational in nature in that each week there is a topic related to being in an abusive relationship such as legal, housing and financial aid. She said that the group provides an opportunity to meet other women in the same situation because most women in abusive relationships are isolated. She said that there was mentoring and psychological healing going on through the group. The group discussed topics such as the impact of abuse psychologically, physically, emotionally and spiritually; the importance of boundaries; safety planning; self esteem; healthy relationships; the impact of an abusive relationship on children. She said that one of the prevailing themes was that the woman is not responsible for the violence.

45Ms. Gabinet remembered the intake interview with the Applicant in that she appeared in a high level of anxiety and high level of fear. From the beginning, she did safety planning by talking about safety issues and the option of going to a shelter. She said that the Applicant’s anxiety and fear were “overriding” and almost on a “visceral level”. She said that at the beginning the Applicant said she did not feel that she could leave and that it would be very very difficult for her to do that. She said that fear and anxiety were a barrier for her. Ms. Gabinet connected her to transitional support workers for advice on how to organize moving out and at some point, the Applicant started to plan to leave. She said she found the Applicant’s presentation and involvement with the group very authentic.

46Ms. Gabinet said that it took the Applicant the whole year to complete her 24 sessions because her attendance was sporadic because her husband was home and it wasn’t safe for her to leave the home.

47In cross-examination, Ms. Gabinet defined abuse as any physical assault using examples but said that there were hundreds of examples. She agreed that physical abuse is measurable but not other abuse so, in the absence of evidence, they trust what the woman tells them by the symptoms she displays. She said that most abused women experienced PTSD that included anxiety, depression, flashbacks, nightmares, high level of fear or arousal or heightened vigilance. The Respondent asked about subsidized accommodation and Ms. Gabinet said that the Toronto Community Housing Corporation has a priority housing list primarily for women leaving abusive relationships or who have mental health problems and can’t work. The transitional housing support worker helps the woman fill out the application and advocates for them at TCHC. While she agreed that access to subsidized housing was a benefit of being involved in the group, she insisted that the woman must present with symptoms that she is in an abusive relationship before gaining such access.

48The Respondent asked Ms. Gabinet about how his wife could have been so fearful of him yet she went to Cuba with him in April 2006 and to Paris in July or August 2006. She said that they do not tell a woman what to do, they just give the woman choices about how to continue to survive on a daily basis. She confirmed that they tell women not to tell their spouse that she plans to leave because that could lead to violence.

C. The Evidence of Rajna Pajkic

49The Applicant called her friend Rajna Pajkic. She had moved to Canada in 1984. She had graduated in physics in Yugoslavia and then worked as a computer programmer. Since coming to Canada she had worked as a computer programmer and is now an Information Architect. She is married and has 2 children.

50Ms. Pajkic said that their husbands had met and then the wives had met. She said that the wives had not been close friends but they met occasionally and talked over the phone. She said that they had visited each other’s home before 2007 “very few times”.

51The Applicant asked her impression of the situation at home. Ms. Pajkic said that most of the times when she called, the applicant was upset and threatened and unsettled. She remembered the Applicant asking her to ask her husband to call the Applicant’s husband to get him out of the house so that the Applicant could be alone. Ms. Pajkic did not know until 2007 that she had had colon cancer in 2004.

52The Applicant referred to a call when she had asked Ms. Pajkic to meet her in a parking lot in the building where she worked. Ms. Pajkic said that the purpose of the meeting was so that the Applicant could show the bruises on her arm and on her neck. She was upset and Ms. Pajkic asked why she did not go to the police. She said that the Applicant said that she didn’t want to risk her marriage that she just wanted to show Ms. Pajkic. She recalled that the Applicant was upset and afraid.

53The Applicant asked Ms. Pajkic if she knew about the Respondent going to the Caribbean and she said that it might have been 2008.

54In cross-examination, the Respondent asked what year it was that his wife had come to see her about the bruises. She said it was after 2000 and maybe 2001 or 2002. He also challenged her about telling the Applicant about the trip to the Caribbean since he is a very good friend with her husband.

D. The Evidence of Borut Cernic

55The Applicant called their son Borut as a witness. He was almost 32 years old when he testified. He is a high school teacher and is married with two children. He was unhappy about being called as a witness in this proceeding.

56The Applicant asked him about his father physically choking her while they were in Yugoslavia. He said he walked in and saw her kneeling on the floor and his father was choking her. He described another event when he saw his father but it was not clear whether he described his father shoving or pushing his mother. He saw his father hit her in the face. He was 11 or 12 years old then and he told his father to stop.

57The Applicant asked him about such conduct in Canada. She reminded him of a summer day in 2004 after she had the operation for colon cancer. He remembered that his girlfriend was staying with the family. His mother showed him bruises on her leg and arm and told him that his father had pushed her down the stairs and shoved her around a bit. He did not see the pushing but based on the bruises, he believed it had happened. He said that this was the only time he had confronted his father and he told his father he would call the police if it happened again. He said that his father said he would start charging him $100 rent for living in his house. Borut said that he moved out 2 months later.

58The Applicant asked him about moving into their home in 1999. The suggestion in her questions was that she had done the lion’s share of the renovations and cleaning but his answers indicated that both of his parents contributed. She reminded him of a scene about breaking furniture. He said he came down stairs to the sounds of furniture being thrown from the living room on the main floor, that his father was very angry and was in a rage throwing chairs and a desk down the stairs. He could not remember the reason.

59The Applicant asked Borut if he had advised her to leave. He said he encouraged her to leave and told her she would have his support. He said that the environment was never good for 30 years and he left partly because he thought it wouldn’t change. He said that the worst part of his life was being with his parents.

60The Applicant asked Borut about his impression of her memory. He said that they talk about the same things over and over again because she keeps asking about the same stuff.

61In cross-examination, Borut agreed that he did not see how his mother got the bruises [in 2004] and he agreed. His father suggested that he had not seen him throw the fridge down the stairs and he disagreed. He asked what else his mother had told him about why she had left him and Borut said that she was afraid and she had to go. The Respondent referred to emails between Borut and his mother and he said that after listening to what had gone on for 31 of his 31 years, he stopped reading her emails. He insisted that while he had not seen the bruises from the 2004 incident, it was consistent with what he had seen before and with seeing the furniture being thrown. He agreed that the furniture that his father had been throwing had been bought by his mother at Goodwill or some such place. His father suggested that he had thrown the furniture out because they had just moved into the house and he wanted the living room to look nice and he did not want second hand furniture. Borut said he did not remember hearing that. He did remember that his father was in a complete rage.

62The Respondent attempted to show that Borut had become partial to his mother’s side of the story and that that had caused him to marginalize his father. The essence of his response was that his mother and his father are not good together and that this [meaning the trial] had to get over and in the meantime, his parents could not be in the same room together. He agreed that he had stopped communicating just prior to the trial because he had heard from his mother that the judge in Belgrade had suggested that they transfer the apartment to Borut and Boris and his father had refused. As I understood it, Borut was not so much interested in having an interest in the property as he wanted that dispute to be resolved and he saw his father as an obstacle to resolution. At the conclusion of his evidence Borut said that he did not think he was influenced by either of his parents. He said that anything is better than the status quo. He agreed that he had recently said he did not want to have a relationship with his father, nor would his father have a relationship with his grandchildren, because of the injustice he was doing to his mother. He said that the 4 years since the separation was too much stress and he perceived his father as having stalled.

E. Evidence of the Applicant as to Spousal Support

63In the Minutes of Settlement the Respondent has acknowledged his obligation to pay spousal support on an indefinite basis commencing April 1, 2011. The key issue is the amount. Within that issue is whether the Applicant has an obligation to contribute to her own support.

64The Respondent is adamant that the Applicant should be contributing to her own expenses. The Applicant is equally as adamant that she is incapable of working. This required a review of her education and employment history.

65The Applicant graduated from the University of Belgrade in economics. She worked throughout their life together in Yugoslavia, except for two maternity leaves. She worked for 14 years in a bank; her last position was department advisor.

66When they moved to Canada, the boys were 13 and 8 years old. They were warned that there would be challenges finding employment. The Applicant took courses in business banking and in English. She volunteered in a bank as a co-op placement. The applicant and the Respondent both found jobs in the same month which I understood was in 1995, almost two years after their arrival.

67The Applicant’s first job was through an agency. She worked for a bank counting and reconciling huge bags of money. She earned $12.00 per hour as a part-time worker. She said her notice of assessment was $3000 or $4000 but she didn’t give it to me. She said that she was not fast enough for that job and was told not to return. She applied to another agency.

68The Applicant realized that her job prospects were minimal unless she took the Canadian Securities Course. She continued working through an agency while she saved money for that course. She took 6 or 7 months off work and studied. She received her certification in 1997 but that did not impact on her employment.

69Through another agency she was placed with a financial institution where she was redeeming Canada Savings Bonds. That too was fast paced because the institution had to deposit the money into the customer’s account within 2 days of redemption.

70In 2000, the Applicant was working at a securities firm rolling over mutual bonds. She earned $14 per hour but had no benefits, no holidays, and no promotion prospects. She took two weeks off at Christmas in 2000. When she tried to go back to work, as a result of a downsizing, she was laid off in favour of a younger and faster and more versatile employee. The Applicant said that this was when the price of technology stocks were tumbling and nobody was buying mutual funds.

71In 1999, the Respondent incorporated Procon Inc. which he used to perform consulting services. They were each 50% shareholders. She understood that the corporation was intended as a vehicle for income splitting. The accountant was expensive so she found another one who was much less expensive but he insisted that they do more of the work, including paying the bills, preparing the statements and providing him with a report. The Applicant took over that responsibility including collaborating with the accountant to prepare the year end statement. She also assisted the Respondent in his job search.

72In 2004, the Respondent took a contract in Jamaica and while he was gone, she paid all the bills through Procon Inc.

73In the spring of 2004, the Applicant was diagnosed with colon cancer. She said that about 18 months prior to the trial she had another colon procedure where “suspicious tissue” was found. She has arthritis in both hands and often can’t sleep at night. After her experience with Toronto Animal Services she adopted a dog but has fallen down “a couple of times” and injured her leg and now has tendinitis.

74She said that she had not looked for a paid job because she was in a big stress when she left the matrimonial home and because she had been in court for 4 years. She also said she had not applied for a job because she wasn’t ready and she had a pain in her hip and had had steroid injections for her left arm. She says she needs exercise in the morning otherwise she can’t walk. She has a thyroid problem that affected her swallowing but she doesn’t want to have any more x-rays because of her concern about recurrence of cancer. She said that any job she would get would require her to type and her hands are in pain. She said she has gained weight because of the medication she takes for her depression. She said when younger people can’t find a job, who would hire her. She sees herself paying her debt to society after the trial by volunteering in palliative care or with animals. She said she has no plans to look for a job. She hasn’t taken any computer or other retraining courses. She tried to take a French language training course but she was so busy with court motions and case conferences and attending at a weight loss clinic that she didn’t learn anything. Every time she goes to court she has to feel what she went through with her husband. She doesn’t have the will or the power to take retraining courses.

75The Applicant frequently referred to her issues with concentration, for example in the context of having received documents from the Respondent, she said she does not have the psychological or mental capabilities to reply on time. A few minutes later she said she probably has more documents (as evidence) but she gets blocked because she has partner abuse syndrome. As she was finishing her examination-in-chief she said that she was too unwell because she forgets things because she is on medication. Towards the end of her cross-examination she was asked about an email written to her sons in September 2006 and she said she did not remember and that her memory is really bad.

76The Applicant had prepared a Spousal Support Advisory Guidelines calculation using income of $97453 for Respondent and no income for her. The range is $3045 to $3553 to $3827. She asked for monthly spousal support in the amount of $3400 because she is in subsidized housing and if she has more than that, she will have to pay more rent.

77In cross-examination, the Respondent suggested to her that after she stopped working at Christmas 2000, she had applied for a full time position at another financial institution where she would have been paid $30000. She said she was always applying for a better job because she was not satisfied at $14 an hour on a temporary placement. She agreed that she went to an interview but had not passed the Excel test but had not told him that at the time. He suggested that she did not want to accept a full time job because she thought he was seeing another woman and that’s when the stalking started. She denied that and said that her income had been $19000 to $20000 while his was about $100000 and with income splitting, it was about the same for the family if she did not work. When he pressed on why she stopped working, she said she stopped so she could have a Christmas break and then the bank downsized and terminated part time temporary workers and plus she had 3 levels of the house to clean. She had been working and looking after the house and to do that she slept only 3 or 4 hours per day because she had to make breakfast and lunch, and dinner had to be on a white damask table cloth. Yet she had to be at work at 7:30 and she had 3 hours transportation. She insisted that she had treated him as “president of Canada” and that “no other president of Canada was treated better”.

78The Respondent suggested that because she had earned $12 or $14 an hour, that triggered her to be unemployed and that she preferred to be an “abused wife than to work”. She insisted that she was an abused wife, that although she finished the Canadian Securities Course, she was not recognized in that field because she had never worked as a dealer and without working, her certificate expired in a year. She insisted that she had worked with his accountant and had helped him find a job in 2004 and 2005 and in addition, did all household duties.

79Later he asked her why he should pay spousal support. He suggested that they arrived in Canada starting from an equal footing, he worked and advanced and struggled and provided support for her to upgrade her skills, she travelled with him around the world, then she made her choice to leave him without asking him and left secretly. She said that during 31 years and 2 children, she had contributed much more to the family than he did. She also said that she was incapable of working because she had to put up with his emotional and physical and financial abuse and that she had died.

F. Applicant’s Expenses

80Boris was born on September 20, 1984 and was 23.5 years old at the date of separation. As of the trial in December 2011, he was over 27 years old. In her Application and Amended Application, the Applicant asked for child support. However, it was agreed at the time of the motion returnable May 25, 2010 that there would be no further child support. As I understand it, Boris spent 3 years at York University and then 3 years at George Brown College.

81Boris left with his mother and he has rejected a relationship with his father ever since. He is not employed although the Applicant said that he planned to shovel snow to make some pocket money. He wants to work with kids with special needs and he is adding training in ASL in the expectation that that will increase his employment prospects. Boris is not a “child of the marriage” within the meaning of the Divorce Act. There is no claim for child support. Accordingly I must consider her expenses as if she were a single person.

82The budget contained in her December 9th, 2011 financial statement totaled $8347 per month. She said that other than the rent, the expenses were actually being incurred.

83Since leaving in February 2007, the wife has lived in subsidized housing. The budget she had prepared indicated rent of $1030 per month. At the time of the trial, she was paying only $250 based on receiving spousal support of $850 per month.

84The budget also includes groceries at $1000 per month and meals outside the home at $60. She said she actually paid more than that and that she buys food that is appropriate for her because of her colon cancer. The budget also includes repayments of $500 per month on debts owed to Radoslava and Repic. And it includes legal and trial costs in the amount of $3000 per month. Under “debts and other liabilities” she lists personal loans to Radoslava and Repic that total $19500 and legal fees to her Belgrade lawyer in the amount of $4250 as well as a debt in the amount of $4700 to Solace Settlement Services that was not explained. She also said she owed her lawyer $9500 but that is not on the financial statement. In this most recent financial statement she included an expense for maintenance and property taxes on the Belgrade apartment in the amount of $200 per month.

85On January 13, 2012, the Applicant sent a fax to the Trial Co-ordinator to my attention. Her fax contained the following note:

Please note there is material change about my current rent I did not know about at the time of the trial. It was delivered to me late on January 9, 2012. I gave information under the oath on December 12th, 2011 that my rent is $250.00. But new decision by my co-op is that from December 1, 2011 I need to pay $730.00. This fact I did not know on December 12, 2011. Thank you for your attention.

86The form contained a phone number and a statement that the number was “only in confidence – unlisted and unknown to Respondent.” I will comment on this fax below.

G. Security for spousal support

87As indicated above, through his employment, the Respondent has a life insurance policy with Standard Life in the face amount of $180,000. It is agreed that the Applicant will be designated as irrevocable beneficiary for so long as he is required to pay spousal support and the policy is available through his employment. The parties did not agree as to the amount to be designated. The Applicant also asked that the obligation to pay spousal support would be a charge against his estate.

88Although not specifically mentioned in the Minutes of Settlement, the Applicant asked for an order that certain of his assets be used as security. In her evidence, the Applicant said that he has no property in Canada and if he fails to pay spousal support there is nothing she could collect. She says that with his current global employer, he could get a job anywhere in the world for good money. He could get a contract abroad and be paid abroad and she would never find out how much he earns. The main reason for seeking such security is that from March 2008 until the refraining motion in May 2010, the Respondent was consistently in arrears. During that period, there were issues with the Family Responsibility Office, she had no money and she had to borrow. It was only in January 2009 when the Canada Revenue Agency diverted $15000 to FRO on account of arrears. She said that after he got his driver’s licence back as a result of the refraining motion, he immediately went into arrears again. She said that it was only at the Trial Management Conference that he started paying. She asked that I make an order freezing one of his accounts so that if he did not pay spousal support, she would not have to spend $10000 to collect and in the meantime, his money would grow or he could invest. She suggested that the amount secured should be the balance of his share of the net proceeds of sale of the matrimonial home.

89In cross-examination he challenged her about the freezing order. She repeated that he had not paid her when he had $100000 in income, he was late in paying child support, he was late in paying Boris’ tuition fees until 2011, she had to get 2 court orders for Boris, he had forced her to get court orders for everything, he had lied about his job that he had in his pocket but had not told Justice HarvisonYoung at the time of the motion for temporary support, at the same time as he had arrears of support, he increased his RRSP and increased his direct investing and had invested almost the same amount as he was in arrears of child support, he had travelled with his girlfriend to Cuba at a time when she was owed spousal support and child support. Furthermore, until the refraining motion to keep his driver’s licence, he did not want to pay arrears. Then he had to pay her $850 per month and although he got a job, he didn’t increase it which demonstrated that he is a cruel and mean man who wants to keep her under control.

EVIDENCE ON BEHALF OF THE RESPONDENT

90The Respondent began his evidence by reviewing the considerable documentary disclosure he had given, some of it more than once.

91The Respondent earned a Masters degree in Electrical Engineering at the University of Belgrade. In his examination-in-chief, he said that when they came to Canada they had some bumpy times getting adjusted and getting jobs. He said that he and the Applicant had not succeeded in the same way and that the differences became obvious when he incorporated Procon and started to work as a contractor. In 1999 his income was $49000 and hers was $24000. After 1999, his earnings through his company Procon rose to over $100000 but the Applicant decided to become unemployed and she started stalking him accusing him of having an affair. He produced the exchange of emails in April 2001and July 2001 in which she described his meetings with a woman she accused of being his girlfriend. In one of his emails in April, 2011, he wrote back that she should find a job and start working and stop threatening him. He said that up to March 2004, she had periods of rage of jealousy. They travelled to Slovenia and his mother came to visit them in Canada which diffused the tension.

92In 2004 his contract ended. He was unemployed and looking for a job when the Applicant was diagnosed with cancer. He said he basically stopped his job search until she had surgery. When she got home, he said that there was a dispute between them as to how she would proceed with her recovery because she was insisting that she would go to a clinic in the United States and try alternative medicine and she insisted that he go with her. He said he told her that it was too expensive for them both to go and that he had to look for a job. He got a contract in Jamaica for the period September 2004 to April 2005. He went there for 3 weeks and came back for 1 week. He said she insisted on accompanying him for 2 weeks of every month because the weather was good for her. He said she accompanied him for 6 or 7 months. He told her not to come during the last month because there was so much work to do completing the project.

93The Respondent said that Boris had started first year university 3 times in 3 different programs. He did not qualify to proceed to second year for any of them although the Applicant put in her affidavit that Boris was in his 3rd year and needed support for the 4th year. When she applied for child support, her affidavit indicated that he was still enrolled in first year of college and that was a complete shock to him. He said that he had been opposing paying child support and all the education fees because he was hoping Boris would come and talk to him. Boris signed his own affidavit in which he blamed his father for the fact that he had not completed university. In the motion in 2008, Czutrin J. ordered the Respondent to pay for 3 years of college and directed Boris to regularly provide his father with reports of his advancement. He is now thankful because Boris has the degree. He is pleased that both of his sons have a degree but sad that neither wants to speak to him.

94In the period between finishing in Jamaica in April 2005 and the Applicant’s departure in February 2007, he was working and earning a salary of $90000 plus bonuses. She was still unemployed although, as he pointed out, she was visiting social services and the Women’s Health Centre secretly preparing for his departure. But none of that prevented her from joining him in Cuba and in Paris in 2006.

95On February 20th, 2007, he came home from work to find that half the contents had been removed and her note that she had moved out and she would have her lawyer contact him. He said it was like a train had hit him. His sons had helped her move out and his son Borut called him yelling “what did you do to her?” Then he started his own research and discovered from her computer what she had been planning for many months.

96The Respondent wanted to point out her lies. The first was the debt to Legal Aid Ontario which he insisted he was not responsible for and ought not to have to share. The second was her accusation that he had taken air miles before the separation but he insisted that it was after the separation.

97The third area where he challenged her evidence was on the apartment in Belgrade. Initially she said that the apartment was inherited property. However, he showed that her mother gave it to her as tenant and the ownership was arranged during the marriage. He said it had been their matrimonial home in Belgrade.

98Fourth, she had wrongly accused him of being in contempt of a court order. At the motion in March 2011 before Justice Harvison Young all of the Applicant’s claims for contempt were dismissed.

99Fifth, he responded to her allegation that he had not told her that he was laid off in November 2009 by Oracle. He received notice on November 13th and was given 12 weeks severance ending about February 5, 2010. He produced an email dated December 8, 2009 in which he told his former counsel he had been laid off although there was no evidence that his then lawyer passed that information to the Applicant’s lawyer. He also produced a letter dated February 16, 2010 in which his lawyer wrote to her lawyer providing details of the termination and making a proposal for dealing with a variation in spousal support. He could not confirm when that letter was sent but he did produce a letter dated March 5, 2010 in which the Applicant’s lawyer acknowledged receipt of the information and the proposal while not confirming when the letter dated February 16th had been received. In May 2010 he brought a motion to reduce spousal support because he had no income. He also brought a motion for a refraining order because FRO notified him that his driver’s licence would be seized.

100Sixth, on the motion before Justice Czutrin in May 2010, the Applicant tried to impute to him ownership of a company in Slovenia that he had no association with. He had to file an affidavit in which he indicated that he was not the person named in the foreign documents.

101There was a lag between the end of his severance and the beginning of EI. On May 25th, Justice Czutrin reduced the spousal support to $850 per month but in the meantime, he had used up capital to cover his expenses.

102Shortly after the motion to change spousal support, the Respondent had opportunities to enter into consulting contracts. On June 15, 2010 he incorporated 757 Canada Inc. Through this new corporation, he acquired contracts with People to Go, with IBZ and with Solution Beacon. He sent the Applicant an email on July 28, 2010 in which he told her he had started a new company and he was working as a contractor on the project but at that point he still had only costs and no income to report. He said he also told her that he would be paid after 35 days and that at that point, he had only expenses including incorporation costs, computer, and a trip to London to meet the client. He received his first cheque at the beginning of August. He was anxious about his investment of $10000 to $15000 in this client and he said he wasn’t in the mood to talk to her knowing she would just ask many questions. He said that as a self-employed person, he was obliged to provide evidence of income by producing corporate tax return, personal tax return and corporate financial statement and he had none of them. And he knew that at the Trial Management Conference scheduled for October 27, 2010 he would provide disclosure of income from these projects.

103The Respondent worked on those contracts from the end of June 2010 to December, 2010 when the Solution Beacon project was stopped because of a dispute on payment. He said that the dispute still was unresolved and he had not been paid for ½ of November and all of December. He did not expect that he would receive any money and was not prepared to hire a lawyer to pursue it. He confirmed that he had been paid for the period from July to mid November. He said he was waiting in January hoping that the situation would be resolved and he would be returned to the project.

104On January 12, 2011, the Respondent sent the Applicant an email in which he said that he was “currently out of work and had no income”. In February he started looking for a new job. On February 28, 2011, the Applicant asked him for a status report and he advised her that there was no change. On March 22, 2011, Justice Harvison Young dealt with the Applicant’s motion as indicated above.

105On March 25, 2011, the Respondent sent the Applicant an email in which he enclosed the job offer from Oracle. The letter from Oracle is dated March 21 but he said he did not receive it until after the motion on March 22nd. He accepted the offer on March 24th and he started working in the last week of March. This is not a contract position. His salary is $90000 plus bonus that is tied to personal performance and to company performance.

106The Respondent said that the Applicant was always accusing him of hiding income and receiving cash. He had given her access to the online time management system operated by People to Go so that she could verify his income. He noted that the Applicant had brought a contempt motion in March 2011 partly on the issue of disclosure and that Justice Harvison Young had indicated in her endorsement that he had produced a great deal of disclosure and that he maintained that he has produced what he can produce.

107In the Respondent’s 2010 Income Tax Return, his line 150 income totaled $48,550 comprised of employment income of $33,189, EI $7769, dividend income in amount of $6250, RRSP income of $667 and other income of $674.

108According to his financial statement sworn November 21, 2011 (as amended) his total income from employment with Oracle from March 28 to December 31 was $76,300. For the calendar year, he attributed $833 per month which he had drawn as a loan to shareholder from 757 Canada Inc. He calculated his total monthly income for 2011 at $7191 or $86292.

109For 2012, he said his income would be $90000. He is entitled to consideration for a quarterly bonus but that depended on having a lot of billable hours and a good economic situation. In 2011, he had started working at the beginning of the second quarter and he received a bonus of $2795 for that quarter and about $4200 for the third quarter. He estimated that the bonus for the fourth quarter might be $1000 and he would receive it in January. He asked that I calculate his obligation to pay spousal support on the salary and ignore the bonus. He said that that was fair because he was the one doing the work and therefore he deserved the bonus.

110The Respondent reviewed the expenses on his November 21st (as amended) financial statement. He said that the Applicant’s situation was better than his because she has subsidized rent and she has time to budget and buy less expensive food. He is employed and working long hours and doesn’t have time to manage his food expense. He has to have a car. He showed “other expenses” that included $100 per month on legal costs for the Belgrade litigation, $850 per month spousal support, and $934 per month spousal support as required by their agreement. He listed debt payments in the amount of $500 per month against the line of credit in the amount of $23726 and he pointed out that he had taken a loan from his company that he had to be repaid.

111The Respondent gave evidence about his Net Family Property statement. He resisted any allocation for her Legal Aid lien.

112At the valuation date, the Applicant had RRSP’s in the amount of approximately $32455 and the Respondent had RRSP’s in the amount of approximately $88237. As indicated above, pursuant to the Minutes of Settlement dated December 12, 2011, the Respondent agreed to rollover $27892 to the Applicant. That amount was meant to equalize their RRSP’s at valuation date. In his Net Family Property Statement dated Dec. 9th as amended, he left the allocation of the asset as at valuation date but he included contingent tax costs for the Applicant at 20% or $6490 and at $25% for him or $22059.

113According to his calculation, he owed her an equalization payment of $4759 plus the RRSP rollover of $27892 for a total of $32651.

114The Respondent also attributed $26623.32 as the value of his share in Procon Inc. at valuation date. He attributed the same amount to the Applicant on the basis of the calculation by the accountant as of February 20, 2007.

115The Respondent explained his reasons for opposing the request for security for spousal support. After the equalization of Net Family Property, they will both end up with assets of equal value and he considers it unfair that he would have to secure her spousal support by depleting his assets. If he becomes unemployed due to lay off or the economic situation, he will have to use his assets to support himself and she will have to use her assets to support herself.

116The Respondent claims excluded property in the amount of $15861.93 that consists of funds in his RRSP, his Action Direct Account and in an account in Slovenija. He has produced documents which he says demonstrate that all of those funds can be traced to an inheritance.

117In response to my questions about the allegations the Applicant had made about abuse, the Respondent said he admitted the incident in Yugoslavia that got them into mediation. As for other incidents, he said he was very often provoked with her accusations and her insistence to do something which he told her 100 times should be done differently. He said she was a very persistent person. When she was following him and he was trying to hide from her, he remembered he took her by the shoulders and pushed her and said to leave him alone and go away. He said that sometimes she would stand like a rock and not move and once he took her by the shoulders and said go away. He did not remember any bruises and said she easily bruised from hitting the doorway or something. He did not admit that any of his actions inflicted bruises. As for the evidence by Ms. Pajkic, he was very disappointed that the wife of his best friend had been passing information to the Applicant, for example, that he had gone to the Caribbean. As for his son, he said that at the time of the separation, Borut was completely on the side of his mother and accused him that it was completely his fault. After a few months of emails explaining his position, Borut reconciled with him. They played tennis and the Respondent visited his grandchildren and walked his dog. He described how the recent court attendance in Belgrade had served to create new conflict with Borut.

118In cross-examination, the Applicant covered a lot of territory. She asked him whether his evidence about pushing her was when they lived with her parents in Yugoslavia or the pushing down the stairs two months after her surgery in 2004. He said he did not remember her version. He did remember an incident in the basement of their house in Canada when he was at his computer and she came behind him and started speaking and talking and she was very aggressive. He stood up and grabbed her by the shoulders and pushed her out of the room. She asked him about Borut’s evidence and he did not remember the choking in Belgrade. When pressed as to whether Borut was lying about the abuse, he said that Borut was telling his story. He has been influenced for a long time that his father is bad and perhaps he had started to believe what his mother was saying.

119The Applicant asked him about her version of various events such as how he treated her in Paris. He specifically did not remember throwing a bottle at her in Paris and he generally did not remember other incidents. In connection with her operation in May 2004 for colon cancer, she asked him about making his lunch and supper on the day she got out of the hospital and he said he did not remember that particular day but he added that she had made supper when she was in a good mood and when in a good mood it was pleasant to be around her.

120The Applicant asked him about her evidence as to his financial demands. He said that he gave her $1500 every 2 weeks deposited to the joint account. She challenged him about the per diem budget she was on. He explained that he had consulted with Statistics Canada about the cost of living and he had allocated an amount that was $300 more per month than the minimum. In that context he said that in his current budget, he allocated $400 per month for him because he doesn’t cook but he heats up frozen food. He also budgets $200 per month for meals outside the home.

121The Applicant asked how he had found out after the separation where she was living. He said that he had looked at the computer after she left and found a resume that Boris had prepared that had his new address on it.

122The Respondent agreed that there is no excuse for violence. He did agree to the slipper incident in Belgrade after which they went to mediation and he agreed that that was violent. He did agree that he pushed her but he continued to insist that he did not cause any bruises.

123The Applicant turned to the property in Belgrade and the discussion to which he had referred in late 2011 that led to the rupture with Borut. He described the efforts to sell it on the market and then his offer to purchase it.

124The Applicant asked about the consulting contracts in 2010. He said he signed the agreement on June 21st and the company signed on June 22nd and the following Monday he was in London getting on the job. He thought that the phone call that preceded the agreement happened earlier the same week because the whole negotiation was finished within the same week. He said he disclosed the contract to her in an email dated July 28th.

125The Applicant pointed out that in his job with Oracle, he travels from Sunday evening to Thursday evening and generally has Friday’s at home. He agreed that he uses a corporate card for reimbursing all food costs when he is out of town. He also agreed that he had a cell phone plan through Oracle.

126The Applicant turned to his evidence that in order to work for Solution Beacon he had to incorporate. In an attempt to contradict him about the timing of the Solution Beacon contract, she pointed out that he had incorporated on June 15, 2010. However, he said that the motive for incorporation was People To Go, not Solution Beacon.

127The Respondent agreed that he expenses 10% of his rent through 757 Canada Inc. He explained again how he had calculated the monthly amount of $833 to be income imputed to him. The Respondent pointed out that he has money that he says is inherited and that he should have used it instead of creating a line of credit where he owed $24000.

128The Applicant pressed on the issue of when he disclosed the contracts in 2010. He explained that he had to work 35 days and then he was able to file his expenses and services hours for approval by a manager and then he was paid. He was not going to tell her what he would be paid until he was paid. He said he reported what really happened, not what he expected. He agreed that at the time the spousal support was $850 per month but he owed $11000 in arrears. He felt he was recovering the expenses he had made in starting up 757 Canada Inc. and covering expenses until the 35 days had passed and paying interim support and arrears. He said that in the summer he sent her a cheque for additional support and she returned it to him. He added that he had tried to force her to receive dividends from Procon but she refused.

129The Applicant also pressed on the dates of his job offer and the motion on March 22, 2011. He agreed that the letter from Oracle was dated March 21st but he said he saw it after the motion on March 22nd. He said he had not disclosed it at the time of the motion on March 21st, 2011 because he did not know it would be coming Later he said that for more than a month before he got the offer, Oracle was in the process of checking his references including his work history and his criminal history and that at one point the process was stuck in Belgrade trying to get the dean for Student Affairs to release his university transcript. He knew that headquarters wanted to hire him but he did not know how it would end up. He started working for Oracle on March 28th.

130The Applicant asked whether in April, May, June and July he had offered a spousal support increase. He responded by talking about the settlement conference on April 20th (that was continued on May 13th, 2011). He said he had wanted to pay more spousal support but they could not agree on the amount. I insisted that the questions about settlement negotiations stop.

131On the issue of Solution Beacon not having paid him for services between November 2010 and January 2011, she asked why he did not pursue the claim. He said he would have to start the legal proceedings in Indianapolis with a lawyer and he didn’t have time. He said if the group of unpaid contractors had sued he would have joined but he was not going to take the initiative alone.

132On the issue of paying for Boris’ university tuition, he had refused to pay for the 3rd year because he wanted Boris to allow him to deduct the tuition costs that he had paid in the first and second year but the Applicant was deducting on her return even though she had not paid it. The Respondent thought that he had, in effect, already paid for the 3rd year. He wanted to discuss it at one of the attendances but Czutrin J. declined to do that so he paid for the 3rd year.

POSITIONS TAKEN BY THE PARTIES

A. The Applicant

133The Applicant seeks spousal support retroactive to April 1, 2011 in the amount of $3400 per month calculated on the basis of the Respondent’s income of $97453 and no income for her. That yields the SSAG’s range of $3045 to $3553 to $3827 and her request is approximately $150 per month less than the mid range. Her calculation of his income is based on his total income from Oracle for the period March 28, 2011 to October 31, 2011 in the amount of $56847. Prorated for a 12 month period, his yearly income would have been $97452. She asks that the spousal support be adjusted annually to reflect cost of living increases.

134The Applicant argues that she has no ability or obligation to contribute to her own support since she has been out of the work force for approximately 11 years, when she was working her income was minimal, and she suffers from several health issues, including being diagnosed with colon cancer in 2004 and she says she experiences debilitating inflammatory osteoarthritis in both of her hands and joints which she says severely impedes her ability to work. Furthermore, she argues that the Respondent was emotionally, psychologically, financially and physically abusive toward her and that abuse has had a profound and long term effect on her ability to work.

135The Applicant seeks an order that whatever his share of the net proceeds of sale of the matrimonial home should be frozen as security for future support obligations. She also asks that she be named beneficiary of the policy of life insurance available through his employment and an order that his obligation to pay spousal support be binding on his estate.

136On the issue of disclosure, the outstanding matter had to do with whether as long as she remains unemployed, she should provide to the Respondent bi-yearly medical reports addressing her ability to work and whether the Respondent should have the right to retain an expert to review and critique her medical reports. As I understood her closing submission, she was not opposed to that request although she observed that they aren’t able to communicate.

137As mentioned, the matrimonial home was sold. Payments have been made to each of them pursuant to several court orders. There is approximately $58000 remaining to be divided in accordance with the Net Family Property calculation and any arrears I might order. The wife is the owner of an apartment in Belgrade. There has been some controversy over this property. However, on May 25, 2010, the parties agreed that the Belgrade property would be dealt with equally in accordance with Belgrade law and would be excluded from the equalization payment calculations. Both spouses understand that according to Yugoslavia law, each is entitled to 50%.

138With respect to the Net Family Property Calculation, the Applicant insists that the full amount of the Legal Aid lien should be deducted. The Applicant had received a certificate and had given a lien against title to the matrimonial home. By the time of the sale in October 2007 the lien in the amount of $4,709.80 was paid out of proceeds of sale of house.

139In her evidence, the Applicant said that it was a “necessity for life” so she could get out of the home. While it was a loan she arranged, she wanted the Respondent to share it because she felt that she had been kicked out. She said she had started using Legal Aid before separation but that most of the account was rendered after separation. Of the total amount of the lien, she estimated that about $3000 was for services rendered after February 20, 2007 which would mean a liability at valuation date of approximately $1700. However, I understood her to say later that she did not hire a lawyer until after she left on February 20th.

140In her closing submission, the Applicant insists that the value of his excluded property is only $10961 not $15861. She also insists that the calculation the Respondent has used for her share of the retained earnings of Procon does not include the capital assets and money that he had withdrawn.

141The Applicant objects to the Respondent’s contingent tax deduction for his RRSP’s. At valuation date, the Applicant had approximately $32000 in RRSP’s. In her financial statement, she deducted contingent taxes at 25% in the amount of $8113. At valuation date, the Respondent deducted contingent taxes at 25% in the amount of $22059. As indicated above, pursuant to the Minutes of Settlement signed December 12th, it was agreed that he would rollover $27892 to equalize their valuation date RRSP’s. The Applicant takes the position that there should be no contingent taxes allowed for either of them. Alternatively, she should be entitled to a contingent tax deduction because she will likely have to cash hers in but he will not liquidate before age 65 or 70.

142Crediting him with the advance against equalization ordered by Czutrin J. in the amount of $13800, she takes the position that the Respondent owes her an equalization payment, exclusive of interest, in the amount of $32,080 although she mentioned that there might be an additional credit of $4800 which I did not understand.

143The Applicant made oral submissions and she filed as Exhibit 45 written submissions that appear to have been prepared by a lawyer on exclusions from the net family property, spousal support and security for spousal support.

B. The Respondent

144The Respondent takes these positions. As for her allegation of abuse, he admits to one event in Yugoslavia where he says he hit her with a slipper after which they met with a mediator. He denies all of the other allegations of abuse.

145He acknowledges his obligation to pay spousal support but asserts that she should be contributing to her own support. Because he has expenses that she doesn’t have, because Boris is capable of contributing to their shared household, and because it would encourage her to try to become self-sufficient, he takes the position that the spousal support should be towards the low end of the range. He asks that I find his income for 2011 to be no more than $86222 which reflects his actual income from Oracle and the funds he withdrew from 757 Canada Inc. in January to March. In his closing oral submission he did not take a position on his income for 2012 but in his evidence he said it would be $90000 plus bonuses which he asked me to disregard. In his written submission he said that the range based on $90000 was a low of $2812 to a middle of $3281. He did not provide the SSAG calculation. He observed as well, that after the equalization payment, they would each have received 50% of the net family property. If he does not receive an increase in employment income, he objects to an automatic cost of living increase. He is strongly opposed to security for future spousal support. In his written submission, he took that the position that only 60% of the face value of the life insurance policy should be designated to the Applicant.

146He argues that the value of their shares in Procon Inc. have been properly calculated by the accountant, that he has traced his excluded property, and that he should be entitled to contingent taxes on his RRSP’s. He resists the debt for the Legal Aid lien that the Applicant has included in her net family property statement. Having agreed to rollover RRSP’s in the amount of $27892 (which would equalize their total RRSP’s at valuation date), he says he owes her an equalization payment of $4759. However, she has already received $13800 as an advance against the equalization payment and consequently the Applicant has received $9041 more than she should have.

147The Respondent made oral submissions and filed written submissions as Exhibit 46.

ANALYSIS

A. Grounds for Divorce

148In their closing submissions, neither of the parties made reference to the grounds on which the divorce should be granted. Given that both separation and cruelty were relied on in the Application and that extensive evidence was led on the issue of cruelty, I infer that neither knew that submissions might be required. I assume that the Applicant continues to insist on the court granting a divorce on the grounds of cruelty.

149S. 8 of the Divorce Act provides for the granting of a divorce on the grounds of breakdown of marriage. There are three definitions of breakdown of a marriage only two of which are relevant here. Breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

150The longstanding leading Ontario case on the issue of cruelty is Knoll v. Knoll [1970] O.J. No. 1443 (C.A.). In that case, the respondent was a chronic alcoholic whose behavior was described in some detail by the applicant and her daughter who had resided with them for nine years. The family physician gave evidence as to the respondent’s chronic alcoholism and as to the impact on the applicant. The evidence of the applicant was not challenged in cross-examination. The respondent gave evidence and did not contradict any of the evidence led on behalf of the applicant. These passages are often quoted:

22. Over the years the Courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if in the Court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses”. . . .

23. Care must be exercised in applying the standard set forth in s. 3(d) that conduct relied upon to establish cruelty is not a trivial act, but one of a “grave and weighty” nature, and not merely conduct which can be characterized as little more than a manifestation of incompatibility of temperament between the spouses. The whole matrimonial relations must be considered, especially if the cruelty consists of reproaches, complaints, accusations, or constant carping criticism. A question most relevant for consideration is the effect of the conduct complained of upon the mind of the affected spouse. The determination of what constitutes cruelty in a given case must, in the final analysis, depend upon the circumstances of the particular case having due regard to the physical and mental condition of the parties, their character and their attitude towards the marriage relationship.. . .

24. . . . Clearly the test must be what effect it had upon the petitioner with due regard to her own particular temperament, sensibilities and state of health.

151Relying on Knoll, the court in Randell v. Randell [1977] O.J. No. 1693 at paragraph 10 held as follows:

So it is clear that the court must find first of all cruelty, and then find that such cruelty has rendered continued cohabitation intolerable to the complaining spouse, before pronouncement of a decree on that ground. It was clear from the Knoll case that although the cruelty itself must be looked at objectively by the court, the inability to tolerate on the part of the petitioner is really subjective, purely subjective, and must be found after judging the sincerity and truthfulness and indeed other facts of her character peculiar to herself in the circumstances of the case at bar.

152More recently, in I.A. v. S.D. [2009] A.J. No. 974, the Court of Queen’s Bench quoted with approval a passage from paragraph 5 of J.G.S. v. W.O.J.S. [2004] B.C.J. No. 1160:

Cruelty is a question of fact and the plaintiff bears the onus of proof on a balance of probabilities whether or not the claim is contested. The Divorce Act requires that cruelty must be of such a kind as to render intolerable continued cohabitation . . . A finding of cruelty bears a stigma and, as such, it should not be a short-cut to a divorce that should be based on separation: McPhail v. McPhail (2001) 2001 BCCA 250, 15 R.F.L. (5th) 137 (B.C.C.A.).

A distinction is drawn between incompatibility and cruelty. As marital disputes and unpleasantness usually precede a separation, the Court should not grant a decree of divorce on evidence of conduct on the part of the offending spouse that is merely distasteful or irritating.

The test is both objective and subjective. Before the effect of the defendant’s conduct on the plaintiff is considered, the court must first be satisfied that such conduct, in itself, is capable of causing physical or mental hurt. This has been described as “grave and weighty conduct”. . . . (emphasis added)

153In I.A. v. S.D., the court concluded at paragraph 17 that all of the evidence relied on by the petitioner to show mental cruelty was not, even cumulatively, grave and weighty.

154In Thordarson v. Thordarson, [1978] O.J. No. 6 (C.A.) the Ontario Court of Appeal held that a trial judge is entitled to accept the applicant’s evidence of cruelty in the absence of corroboration where there is no issue as to credibility.

155The allegations made by the Applicant are vigorously contested and hence I must make findings of credibility.

156There was some corroboration of the allegations made by the Applicant. First, the Respondent admitted to the event in Yugoslavia although he insisted it involved a slipper and not a clock. He also admitted that in the years just prior to the separation he was very frustrated with the Applicant because she would not get a job and because she was stalking him and that there were occasions when she would be so aggressive that he held her by the shoulders and shook her. He admitted to being in a rage the day that he threw out the furniture. He agreed that the relationship was dysfunctional. Second, Ms. Pajkic and Borut saw bruises which the Applicant attributed to the Respondent although neither saw how the bruises were caused. Third, Ms. Gabinet confirmed the initial contact in October 2005 and the planned departure in February 2007. While the Applicant showed no physical evidence of abuse, her symptoms were consistent including high anxiety and fear. She was firm about advising women to maintain the status quo while they are developing an exit strategy. Fourth, Borut has a clear memory of his father striking his mother twice while they were still in Belgrade and he observed how his father treated his mother in Toronto. On the basis of his personal experience, when his mother told him that the bruises were caused by his father he believed her because it was consistent with what he had observed of their relationship. His evidence was compelling.

157But there are reasons to doubt the strength of that evidence. First, Ms. Pajkic said that the incident involving the bruises was maybe in 2001 or 2002, not in 2004 as alleged by the Applicant. Second, Borut’s memory of physical conduct dates from their time in Belgrade when he was very young and he may not be able to distinguish between what he remembers and what he thinks he remembers. Although he and his father had a rapprochement some time after the separation in February 2007, there has clearly been a rupture recently based on his understanding from his mother as to the position his father is taking with respect to the Belgrade property. He is aligned with his mother and has, hopefully only temporarily, terminated his relationship with his father. He clearly blames his father for all of the discord in the family. He did not want to be a witness. But albeit a reluctant witness, he was unable to cast his father in any other light.

158Third, the Applicant was prone to exaggeration. As indicated above, in the context of his financial regime, she said that she had to “eat garbage” so that she could give him three home-made meals and snacks each day. She said that she had to serve him meals on a “white cloth” all the time. She said that as she was planning her departure, she used the air miles points because she could not take any money from the bank or “he would kill her”. She said that she had been seeing a psychiatrist weekly for 6 years yet Exhibit 2 says only that she had seen the resident doctor and a social worker in 2005 and 2006. She said that the night in Belgrade when he “beat her” with the clock, “she died”. She said that he had beaten her for “$5 of air miles”. And she said that she had been abused throughout the entire 31 years they were together. The Applicant provided no evidence that she had ever sought medical attention for any of his behavior. Indeed, she formally abandoned calling any evidence of a medical nature yet she persisted in saying that she had PTSD and battered wives syndrome – without any expert evidence to support the allegations. While Ms. Gabinet said that abused women sometimes suffer from PTSD, there is no evidence that such a diagnosis has been made in relation to the Applicant.

159Fourth, while the Respondent is highly motivated to deny the allegations, he did admit to some aggression while denying that he ever caused bruises. The emails she sent in April and July 2001 corroborate his evidence that she was stalking him and she was very aggressive in the relationship.

160On balance, wherever the evidence of the Applicant and Respondent differ, I accept the evidence of the Respondent. I draw the following conclusions. I reject the allegation that the Respondent was financially oppressive and cruel to her. The family had experienced serious financial pressures from their arrival in Canada in 1993, exacerbated by the Applicant refusing to seek employment after the end of 2000 even though they had purchased a home in 1999. Putting the family on a budget was not unreasonable and was certainly not cruel.

161I reject the allegation of physical cruelty. Even accepting the evidence of all of the Applicant and the Respondent and Borut that there was an incident in Belgrade, that was decades ago and cannot support an allegation of cruelty. In later years, I accept that he did touch her in anger. I accept that he did shake her out of frustration. I accept the Respondent’s evidence that he never threw her down stairs.

162I reject the allegation of mental and emotional cruelty. As indicated above, the onus is on the Applicant to prove that such conduct is “grave and weighty”. The Respondent agrees that the relationship had been dysfunctional for some time. Even if Borut’s description of the conflict in the relationship is accepted, that behavior is closer to “distasteful and irritating” than it is to the “grave and weighty” conduct that Parliament requires before a court takes the unusual step of finding that the divorce should be granted on the grounds of cruelty.

163Given my findings as to credibility, the Applicant’s subjective emotional state, which is corroborated by Ms. Gabinet, is insufficient to establish cruelty in the absence of objective reliable evidence of physical, mental or emotional cruelty.

164The Applicant has failed to prove on a balance of probabilities that the separation was caused by the cruelty of the Respondent. The parties have been separated for more than one year and a divorce will issue on the ground of separation.

B. Spousal Support

165S. 15.2(1) creates the jurisdiction to make an order for spousal support including the jurisdiction to order a spouse to secure and pay such support as the court thinks reasonable. According to s. 15.2(3), the court may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. S. 15.2(4) of the Divorce Act provides that in making an order for spousal support, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including the period of cohabitation and the functions performed by each spouse during cohabitation. Pursuant to s. 15.2(5) the court shall not take into consideration any misconduct of a spouse in relation to the marriage. According to s. 15.2(6) the objectives of a spousal support order relevant to this case should be to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; relieve any economic hardship of the spouses arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

(i) Condition, means, needs and other circumstances of the Respondent

166The Respondent’s income from Oracle for the period March 28, to December 31, 2011 was $76300. For the year 2011, he also attributed $833 per month which he had drawn as a loan to shareholder from 757 Canada Inc. He calculated his total monthly income for 2011 at $7191 or $86292.

167For 2011, the Applicant takes the position that I should find his income for 2011 was $97452 based on actual income for the period March 28 to October 31 in the amount of $56847 pro-rated over a 12 month period.

168The Respondent gave evidence in the middle of December and had produced a pay slip for the period ending October 31st. It showed base pay of $53884.61, vacation pay of $167.71 and bonus of $2795. In his evidence, he said he had received a bonus of $2795 for the second quarter (April to June) and about $4200 for the third quarter (July to September). He estimated that the fourth quarter bonus might be $1000. The pay slip reflects only the second quarter bonus.

169Given that in 2011 he drew funds from 757 Canada Inc. that must be paid back and that he receives bonus in addition to base salary, it is a challenge to be precise about his income based on the evidence available. I agree with the Applicant’s calculation and observe that it is consistent with paragraph 1 of the Minutes of Settlement. I find that his income for 2011 was $97452 including all bonuses.

170For 2012, the Respondent’s base income is $90000. He asks that I establish his obligation to pay spousal support without regard to the bonuses he might receive. However, in the Minutes of Settlement dated December 12, 2011, he agreed that his ongoing obligation to pay spousal support would be based on his total employment income (inclusive of base salary, achieved bonuses and vacation pay). I cannot disregard the “achieved bonuses”. I understand the Minutes of Settlement to mean that he is not to be required to pay spousal support in one year based on the bonuses he received in the prior year.

171The challenge is how to impose a support obligation on bonuses yet to be received. According to paragraph 7 of the Minutes of Settlement, on January 15 and July 15 of each year, the Respondent will provide the applicant with a copy of any documents he received confirming the total amount of his income received to those dates, inclusive of any bonuses. The Minutes of Settlement do not indicate how the bonus achieved in the prior quarters is to affect spousal support. Both parties have been challenged by using the Family Responsibility Office. Expecting the FRO to make a calculation semi-annually on the basis of bonuses achieved is a recipe for disaster. Furthermore, since the Respondent has an obligation to pay spousal support on the basis of the bonus only when received, there is a possibility that Canada Revenue Agency will not consider it a periodic payment and will not permit the Respondent to deduct that portion of the spousal support nor oblige her to include it for purposes of her taxes. I cannot predict the outcome of that issue.

172In order to respond to these challenges, I will fix the percentage of each bonus that the Respondent must pay as the same percentage of the Net Disposable Income used to fix spousal support.

173The Respondent is 61 years old. He lives in rented accommodation. As a result of his employment he travels from Sunday to Thursday. He must have a car. His expenses are reasonable.

174The Respondent’s overall financial circumstances are better than that of the Applicant. His inheritance is excluded property. But for purposes of assessing his capital position, it is relevant. While he has a car loan and a line of credit, he has been able to amass greater capital than has the Applicant. It may be that she has used up capital on legal fees, to which he objects. But the fact is that he is better off financially than she is.

(ii) Condition, means, needs and other circumstances of the Applicant

175The Respondent accepts the Applicant is entitled to and that he has an obligation to pay spousal support on an indefinite basis. It is not necessary to review the authorities except to say that the Applicant and Respondent had a very long marriage, at the time of the separation the Applicant was dependent on the Respondent, the Applicant needs support and the Respondent has the ability to pay. Spousal support is appropriate to recognize the economic disadvantages arising from the breakdown of the marriage and relieve any economic hardship arising from the breakdown of the marriage. The key issue is whether the support order I make should, insofar as practicable, promote the economic self-sufficiency of the spouses within a reasonable period of time. The Applicant will never become economic self-sufficient. That is not the goal. The issue is whether she should be expected to contribute to her own support, thereby reducing the obligation imposed on the Respondent.

176In her Opening Trial Statement and in her evidence, the Applicant referred to various medical issues. As indicated above, at the Trial Management Conference held on December 7th, 2011, the Applicant made a commitment that she would not rely on medical reports of doctors in relation to her health. It is unquestioned that the Applicant had colon cancer in 2004. But there is no expert evidence that she suffers from the other ailments that she has referred to or that such ailments impede her ability to seek and maintain employment.

177I have Ms. Gabinet’s evidence as to her view that the symptoms of heightened anxiety and fear were authentic and that the Applicant was abused. But I have only the Applicant’s evidence as to the impact on her ability to work.

178The Applicant is 58.5 years old. She has a degree in economics. She worked for almost 15 years before they left Yugoslavia. She obtained less interesting positions in Canada but she did work from 1995 to the end of 2000. She has not been employed outside the home since January 2001 and the issue is whether I ought to find that she has a responsibility to seek and obtain employment.

179There is no issue that her employment was terminated because of downsizing, not because of her conduct. At age 47.5 in January 2001, she did not have a job. I accept his evidence that from early 2001 to mid 2004, the Applicant chose not to work outside the home and that her assistance in the bookkeeping of Procon was not an impediment. I accept his evidence that he wanted her to work, as is indicated in his email in April, 2001. He never acquiesced in her lack of employment.

180In 2004, she was understandably preoccupied with the cancer diagnosis, the surgery and her recovery. In late 2005, she contacted the Women’s Health Centre and began the transition to leave the Respondent.

181The Applicant has provided various reasons to not be employed now. Since she left in February 2007 she has been in court and preparing for court and stressed by court and she has many doctor’s appointments that are the priority. She says she has few skills and she is in the age range where it is difficult to obtain employment. She does not want to get a job. She sees her role as a volunteer with the elderly or with animals. She wants to work but only in the volunteer sector. She sees no obligation to contribute to her own support.

182In minimizing her skills, the Applicant focused on her memory problems and her inability to concentrate. I had the opportunity to observe her throughout the trial, Tuesday December 13 to and including Monday December 19. She gave evidence in chief on Tuesday. She was cross-examined all of Wednesday. To accommodate Borut’s schedule, his evidence was heard on Wednesday from 4:30 to just after 5:00 p.m. On Thursday, she called Ms. Gabinet and Ms. Pajkic. In the afternoon of Thursday, the Respondent gave evidence in examination-in-chief and that continued until noon on Friday. The Applicant cross-examined all afternoon and then again on Monday for over 3 hours. She made oral submissions for about an hour and he made oral submissions for about an hour and she closed with brief reply submissions.

183During all of that time, I observed that she was occasionally fatigued – as was he. But I also observed that she was well organized in that she orchestrated her own evidence and the evidence of three other witnesses. She took direction, for example on not leading a witness and indeed, she interrupted herself to acknowledge that she was leading Ms. Pajkic. Her examination-in-chief of her witnesses was organized and appropriate and drew out the evidence she sought. During his examination-in-chief, she frequently objected to something he said which indicated she was alert and concentrating. In her cross-examination of the Respondent, she made important points such as that his personal expenses should be less than estimated since he was travelling from Sunday night to Thursday and was reimbursed during those times; such as the timing between when he incorporated 757 Canada Inc. and when he started the consulting contract and when he disclosed to her; such as pointing out that he had saved his inheritance yet at the same time he had accumulated a line of credit. Throughout, I observed no problems of concentration. I did observe an enormous preoccupation with whether he has diligently disclosed information about his financial circumstances to her.

184In Fisher v. Fisher 2008 ONCA 11 (C.A.), in a long term marriage, the court noted that the spousal support analysis will not give priority to self-sufficiency because it is an objective that simply cannot be attained. But that approach assumes a long term traditional marriage, namely where the recipient spouse has not participated in the paid labour force. That is not the case here. For over 20 years in Yugoslavia and then in the transition in Toronto and for at least five years between 1995 and 2000 the Applicant and the Respondent were not in a “traditional marriage”. This relationship did not become a “traditional marriage” simply because the Applicant decided unilaterally to stop participating in the paid labour force.

185I do not agree with the position taken by the Applicant that she has no obligation to look for a job, that, if she looks she won’t find a job, and that her focus should be on volunteer work. She worked historically. She chose not to work. The relationship between them in Yugoslavia and in Canada until she decided not to work was that they were both contributing to the household. She has an obligation to contribute to her own support. She should have made efforts to obtain employment and has failed to do so. She should be making efforts in the future. Leaving aside her education and experience in banking, she has sufficient administrative skills that she was able to manage acting for herself from time to time and did so throughout the trial.

186Neither of the parties gave me any vocational evidence about what she would do. Having found that the Applicant has an obligation to contribute to her own support, it is a challenge how to quantify it. Furthermore, since she is clear that she has no intention of looking for a job, it would be impossible to monitor her efforts. It would be a nightmare of financial management if she were required to report her income to the Respondent and to FRO and then make adjustments to spousal support. The only alternative is to impute income to her. According to the Respondent her earnings for 1999 were $24000. To reflect the fact that she has been out of the paid labour force for 11 years (most of it voluntarily), the general challenging economic conditions, the fact that she has good organizational skills but her technology skills are somewhat dated, I find that income should be imputed to her beginning in January 2012 in the amount of $15000 per year.

187The Applicant provided a SSAG calculation on the basis of his income of $97453 and no income for her. The range is $3045 to $3553 to $3817. She has asked for retroactive spousal support for the period April, 2011 to December 2011 in the amount of $3400 per month. That would leave her with approximately 45% of the NDI and leave him with approximately 55% of the NDI.

188There is no point in trying to reconcile their budgets with the SSAG’s. As indicated above, any expenses she incurs in relation to Boris are not relevant. Furthermore, the reality is that the Respondent’s income is insufficient to accommodate what they each consider an appropriate standard of living.

189For 2011, I accept her calculation and her submission and I order retroactive spousal support for that period in the amount of $3400 per month.

190For 2012, I must separate the base income from the “achieved bonuses” as indicated above. And I must incorporate an imputed income to her. The SSAG calculation I have prepared (a copy of which is attached to the print version) attributing income to him at $90000 and to her at $15000 yields a range of $2344 (43.3% of the NDI) to $2734 (47.3% of the NDI) to $3014 (50% of the NDI). I am satisfied that the middle range is appropriate taking into account all of the circumstances. Effective January 2012, the Respondent shall pay to the Applicant spousal support in the amount of $2734 per month. Effective on the 15th of each month after the semi-annual disclosure of his income, if he has received a bonus, the Respondent shall pay to the Applicant spousal support in the amount of 47.3% of the net after tax bonus received.

191Before leaving this issue of spousal support, I mention the fax that the Applicant sent to me on January 13th. It was inappropriate to send it to me, let alone not to inform the Respondent. However, it is irrelevant in any event because the budget on which she gave evidence at trial included rent at $1030 per month which is considerably higher than the amount mentioned in her fax.

C. Life Insurance/Security/Binding on the estate of the payor/Indexing

192Pursuant to s. 15.2(1) of the Divorce Act, the court may direct the payor to secure and pay spousal support. Pursuant to s.15.2(3) the court may impose conditions on the order for support. Pursuant to s. 34 of the Family Law Act the court may require that a spouse who has a policy of life insurance designate the other spouse as the beneficiary irrevocably. In addition, the court may require the securing of payment by a charge on property or otherwise. Pursuant to s. 34(4), an order for support binds the estate of the person having the support obligation unless the order provides otherwise. Pursuant to s. 34(5), the court may provide that the amount payable shall be increased annually on the order’s anniversary date by the indexing factor, as defined in subsection (6) for November of the previous year.

193On the issue of life insurance, the parties have agreed that the Respondent will designate the Applicant as an irrevocable beneficiary but they do not agree as to the amount. The face amount of the policy is $180,000. I have not been given a present value calculation of the obligation to pay the amount of spousal support I am ordering but I am satisfied that the full amount of the policy should be designated for these reasons. The Respondent was 61 years old in November 2011. The policy is only available as long as he is employed at Oracle. I have no information about his retirement expectations except that I infer that he will want to work as long as possible to achieve as much financial comfort as possible. If he dies while the policy is available, the Applicant will likely still be entitled to spousal support. In order to achieve as much of a financial clean break as possible, his estate will not be bound by the order if the Applicant is an irrevocable beneficiary at the time of his death.

194On the other hand, if the policy is no longer available to him, then his estate should be bound by the order to pay spousal support.

195As for freezing some of his capital, the Applicant believes that she is vulnerable to his whims and that he may leave his current employment, resume work on contract, leave Canada and go to a place where his income cannot be reached. For those reasons, she asks that the amount to which he is entitled from the proceeds of sale be secured so that if any of those contingencies occurred, she would have several months’ protection. I do not share her concern. This proceeding has taken almost 5 years to reach this point. It is the case that during that time the Respondent was employed, was then on contract work and was then re-employed. But there is no evidence to suggest that he made any of those changes to defeat her claims to spousal support. I am satisfied that those changes were in response to factors over which he had no control and that, when confronted with serious financial challenges, he worked very hard to stabilize his financial situation – and therefore stabilize hers. I agree with him that once the equalization payment has been made, they will each have been entitled to ½ of the net family property and each should be able to deal with what remains, unimpeded by an order securing some of his assets. I also accept his position that if he does experience a change in employment, he may need to resort to his capital and it would be unreasonable to expect him to obtain permission from a court to do so.

196As for indexing of spousal support, the Respondent observed that his employment income might not be increased by the cost of living and therefore he ought not to have to increase spousal support. In the Minutes of Settlement, the parties agreed to define a material change in circumstances as including a 10% increase (or decrease) in income from all sources. That threshold will serve to give the Applicant the opportunity to share in increases in the Respondent’s Line 150 income for whatever reason and it would be inappropriate to also impose a cost of living increase.

D. Disclosure

197It was apparent from the evidence that disclosure had been a very challenging issue almost since the beginning of the legal proceedings. The Applicant was very critical of the disclosure obtained from the Respondent. Much of the Applicant’s suspicion was derived from what she said was his failure for 4 months to tell her that he had lost his job.

198In anticipation of that criticism, the Respondent filed documents that demonstrated what he had disclosed. It was his view that he had always disclosed within a reasonable time, that she inundated him with requests, and that often she demanded documents that he had already provided.

199It is unfortunate that he experienced so many changes to his employment circumstances. It is the case that he did not disclose changes as quickly as he should have. For example, he did not disclose until after his severance period had expired that he was no longer employed. Had the Applicant had the benefit of warning, she could have had the dental work done while his health coverage was available. It was bad timing that he received an offer of employment coincidental with the motion before Justice Harvison Young and then that no adjustment was made to her support for some months, although I accept his evidence that he tried to adjust it sooner than that was accomplished in September, 2011. However, on balance, I agree that he has complied with his obligation to provide disclosure of his financial circumstances and of his net family property to the Applicant.

200Given that the Respondent will be paying spousal support, ongoing disclosure will be required by both parties. Thankfully, in the Minutes of Settlement dated December 12, 2011, the parties agreed to five elements of disclosure which are contained below. There were two issues left for me to decide.

201The Applicant asked that, if the Respondent loses his job and starts his own consulting business, she wanted him to be compelled to provide to her copies of invoices for consulting work. I do not consider that appropriate and would be an intrusion into the privacy of his clients.

202The second disclosure issue was whether the Applicant had to disclosure medical reports. Paragraph 11 of the Minutes of Settlement describes the issue for trial as whether, for as long as she remains unemployed, she should provide him with bi-yearly medical reports addressing her ability to work and whether the Respondent should have the right to retain an expert to review and critique the Applicant’s medical reports. The issue of her medical condition as a barrier to employment was not raised at the trial. I have imputed income to her regardless of her medical condition. I see no reason to require ongoing disclosure of her medical condition.

E. Equalization of net family property

203The Applicant insists on including the full amount of the Legal Aid lien that was registered on title to the matrimonial home and was therefore discharged out of the closing proceeds. The value of a spouse’s net family property is calculated as of the valuation date which is February 20, 2007. Had the Applicant incurred legal expenses prior to valuation date, I would have been inclined to allow that portion. However, the Applicant has not proven that any amount was incurred before she left. The burden of proof is on the Applicant to satisfy me that she had incurred this debt as of valuation date. She has failed to satisfy me on a balance of probabilities and consequently I do not allow it.

204As for the value of Procon, I accept the evidence of the Respondent that the calculation prepared by the accountant properly includes all assets of the corporation at February 20, 2007 and that the total value attributed to each of their shares was $26623.32.

205As for the value of his excluded property, having reviewed the documents relied on, I agree that the Respondent has traced his inheritance into assets that totaled $15861.93 at valuation date. This is not a situation where his inheritance has been “absorbed into the family treasury of the joint account and used for the common benefit of both parties”. Sydor v. Sydor 2004 5012 (ON SC), 2004 5012 (ONSC)

206The remaining issue is whether any contingent tax deduction is allowed for either or both of them with respect to the RRSP’s. As indicated above, they agreed to equalize the RRSP’s. They did not decide what would happen with the contingent tax deduction. Contingent taxes are typically allowed as a deduction against the value of assets at valuation date on the basis that the assets will remain the property of the owning spouse. In this case, almost 5 years after valuation date, the spouses have agreed to share the asset, rather than the value. In my view, it is only fair to both of them that the contingent taxes not be deducted.

207I am not creating a Net Family Property Statement to coincide with this judgment. According to the Minutes of Settlement, I was required to make findings of specific issues. Having done so, the final Net Family Property Statement will be prepared as indicated below.

COSTS

208On December 19th, 2011 I told the parties to attend on February 13, 2012 to receive the judgment and to set a date for submissions as to costs. I intend to establish a timetable for making submissions. As indicated above, the lawyer retained by the wife was helpful on December 12th to reduce the issues for trial and enable it to be completed in 5 days. I will hear submissions on costs but my inclination is to require the Respondent and the Applicant to share equally the cost of services rendered on that day.

JUDGMENT TO ISSUE AS FOLLOWS

209The marriage performed on February 1, 1976 in Belgrade is dissolved on the grounds of separation and the dissolution takes effect 31 days from today.

210Effective April 1, 2011 to December 2011, the Respondent shall pay retroactive spousal support in the amount of $3400 per month (less credit for amounts paid) based on income of the Respondent at $9