ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-3167
DATE: 20130109

BETWEEN:

DONGXIA WANG

Applicant

– and –

GANGJIE SONG

Respondent

David J. Hughes, for the Applicant
Gil D. Rumstein, for the Respondent

HEARD: February 21-24, 27-28,
March 6-7 and July 11, 2012 (Ottawa)

HACKLAND R.S.J.

REASONS FOR JUDGMENT

Introduction

[1] In this matrimonial proceeding the applicant wife Dongxia Wang (Ms. Wang), age 47, claims against the respondent husband Gangjie Song (Mr. Song), age 48. This was a 16 year marriage. The parties married in China in March of 1990 and Mr. Song came to Canada in December 1999, followed by Ms. Wang and their daughter in March 2000. The parties have one child J.S., age 21, who is completing fourth year of a science program at the University of Toronto. The date of separation is agreed to be December 1, 2006.

[2] Ms. Wang commenced this proceeding on December 31, 2009 claiming only a divorce. By way of Answer, Mr. Song counterclaimed for a wide variety of relief including spousal support for himself, sale of the matrimonial home and equalization of the net family property, an order setting aside an agreement signed by the parties on July 26, 2003 and his costs. By way of Reply, Ms. Wang claimed retroactive and future child support for J.S. and section 7 expenses, exclusive possession of the matrimonial home and contents, an order for an unequal division of family property and an order imputing income to Mr. Song in the sum of $70,000 annually, as well as her costs.

Background

[3] The court heard a great deal of evidence from both parties as to the marital relationship, including the parties roles in parenting their child J.S., in the 10 years between their marriage in Wuhan, China in March 1990 and their immigration to Canada, which occurred in December of 1999 for Mr. Song followed by Ms. Wang and J.S. in March of 2000. The purpose of this detailed evidence was ostensibly to establish Mr. Song’s claim for spousal support on a compensatory basis. It was Mr. Song’s position that he was the primary caregiver for J.S. during this period and that he subjugated his career to that of his wife in China (and subsequently in Canada).

[4] I do not accept Mr. Song’s position in this regard. The evidence (including Mr. Song’s own evidence), clearly establishes that both parents were equally involved in raising J.S. and paying for her child related expenses. Both parents graduated from engineering faculties at prominent Chinese universities and both worked diligently in their respective careers. For many years they resided with his parents and employed a series of caregivers or nannies to care for J.S., and everyone shared in the parenting. Both spouses progressed in their professional careers and maintained continuing employment. Both travelled a good deal in their work. As with all matters of detail, I prefer and rely on the evidence of Ms. Wang. Mr. Song’s evidence was consistently confused and at times bizarre, but even his recollection of events supports an equal sharing of career and child rearing responsibility. This was the situation both in China and subsequently in Canada, until two years before separation when Mr. Song was laid off from his employment (in August 2004).

[5] I accept Ms. Wang’s evidence that it was Mr. Song’s decision to immigrate to Canada and that she was persuaded to go along with it. She provided the funds from her personal savings to enable Mr. Song to take professional upgrading and English courses in Beijing prior to immigrating to Canada and she gave him $7,500 to finance his relocation in Canada and a similar amount after his arrival. I also accept her evidence that during their time in China, Mr. Song invested in the stock market and lost a good deal of the family’s savings, including some of his parents’ money. Essentially, Ms. Wang’s personal savings financed the parties’ relocation to Canada.

[6] Both parties pursued further language training upon their arrival in Canada and both secured employment in engineering related fields. They settled briefly in Toronto then relocated to Ottawa. Through hard work and great diligence, Ms. Wang also obtained her Canadian P. Eng. designation in October of 2005. At the time of trial, (5 years and 3 months’ post separation), Ms. Wang continued her professional employment with an engineering firm in Ottawa, earning an annual salary of $71,148. Mr. Song was working part time at a McDonalds fast food restaurant, cooking hamburgers, and earning approximately minimum wage.

[7] I accept Ms. Wang’s evidence as to the circumstances leading up to Mr. Song’s departure from the full time workforce in the summer of 2004 and the subsequent breakup of their marriage following an incident on November 29, 2006. In May of 2001 Mr. Song confessed to his wife that he had had a series of sexual affairs while in China. This nearly led to the breakup of the marriage but Mr. Song promised Ms. Wang (and his own parents) that he would devote himself to his family. In May 2002 his parents visited from China and it was during this period that the parties decided to move out of their crowded apartment and purchase a home. In early 2003, after signing the agreement of purchase and sale for their new home, Mr. Song advised Ms. Wang that he did not love her and wanted a divorce. Ms. Wang sought the intervention of Mr. Song’s family (his parents and brother) and they convinced Mr. Song to remain in the marriage.

[8] In August of 2004 Mr. Song left his employment. His employer had advised him in January of 2004 that his position was being moved to the Toronto area and he was required to confirm by January 16th if he would accept the transfer, failing which his employment would end in August and he would receive a severance package. Mr. Song misrepresented the situation to Ms. Wang by failing to tell her what was occurring for a number of months and ultimately by telling her the new position was in Calgary. He advised her that he had decided not to accept the transfer and would quit his job and use his severance payment and E.I. benefits to help support the family while he embarked on a personal course of study to increase his potential for re-employment. Ms. Wang reluctantly acquiesced in this arrangement. Mr. Song’s annual salary at the time he left his employment was $65,000.

[9] Mr. Song explained, and I accept, that he was influenced in his decision not to accept the transfer, by the fact that the parties had just bought a new home in Ottawa. In addition, Ms. Wang enjoyed secure professional employment in Ottawa and they lived in an area where J.S. was able to attend a high school with a strong academic program. I accept that both Mr. Song and Ms. Wang intended that Mr. Song return to the professional workforce in a timely way, after a reasonable period of self study.

[10] As matters transpired, Mr. Song did not become re-employed again in his profession. His employment insurance benefits ran out in early 2006 and he remained without work. Later in 2006 Mr. Song began part time work at a McDonald’s restaurant at near minimum wage, where he remains to the present time.

[11] Through the fall of 2006 tensions rose in the home. Ms. Wang was subjected to four violent assaults by Mr. Song, which she described in detail in her evidence. In the fourth assault, on November 29, 2006, Mr. Song forced his way into Ms. Wang’s bedroom, beating and kicking her, all of which was witnessed by J.S. The beating resulted in permanent damage to Ms. Wang’s ear drum and necessitated hospital treatment. The treating physicians notified the police and Mr. Song was arrested and removed from the home. He was charged with and pled guilty to assault charges in respect to these incidents. Ms. Wang is not pursuing damages for assault in this proceeding, as this cause of action is statute barred.

[12] From the date of separation, which the parties agree is deemed to be December 1, 2006, to the present time, Ms. Wang has remained in the matrimonial home. J.S. remained with her mother for nearly three years and left home to attend university in Toronto in September of 2009, although she has returned home during the summers. No spousal or child support has been paid or requested prior to these proceedings. The carrying costs of the matrimonial home have been born exclusively by Ms. Wang.

[13] The court heard evidence that Mr. Song currently suffers from a mental illness and is unable to maintain employment beyond his current level. This evidence was led to support a needs based claim for spousal support and to counter Ms. Wang’s claim that income should be imputed to Mr. Song at levels similar to his prior professional earnings. A psychologist, Dr. Jean Hall, testified on Mr. Song’s behalf. I would note that Mr. Song does not himself feel that he is mentally ill and he was clear that he has no intention of accepting treatment such as psycho therapy or drugs. Dr. Hall has never treated Mr. Song, rather she has seen him on seven occasions for medical legal purposes. The initial visits were in connection with his sentencing on the assault charges and then pursuant to the probation order and finally in connection with the current proceedings.

[14] Dr. Hall is an experienced clinical psychologist. Her evidence was the only expert medical evidence led in this trial. I found her evidence to be credible and I accept it. I found her evidence to be entirely consistent with Mr. Song’s own presentation while testifying. Dr. Hall stated that Mr. Song’s mental status examination revealed substantial disorganization with regard to his expressed thoughts, loosening of associations, illogical and tangential verbalizations and significant paranoid ideation. He presented as a man extremely sensitive to criticism and was extremely self conscious about his social role. Dr. Hall was of the opinion that any stressors would serve to precipitate an emotional crisis given Mr. Song’s level of psychological vulnerability.

[15] Dr. Hall has not reached a definitive diagnosis concerning Mr. Song, however she stated on page 3 of her November 17, 2010 report:

Based on the current evaluation, it is my opinion that Mr. Song’s presentation represents a Psychotic Disorder, NOS indicating that he presents with delusional beliefs (paranoia), thought disorder, unusual behaviour, difficulty with social interaction and impairment in carrying out the activities of daily life... Mr. Song demonstrates significant symptoms of a Mood Disorder and anxiety, but I was unable to establish whether his psychotic symptoms appear strictly in the context of a depressed mood, such as Major Depressive Disorder with Psychotic features or if the occurrence of the delusions occurred in the absence of any serious mood symptoms for at least 2 weeks and if a mood disorder was present for a significant minority of the time as in Schizoaffective Personality Disorder or as part of his general personality organization, such as Paranoid or Schizotypal Personality Disorder. Additionally, Mr. Song’s anxiety appears quite generalized and he demonstrates a histrionic personal organization.

[16] In relation to his employability as an Engineer, Dr. Hall stated on page 4 of her November 17, 2010 report:

It is my opinion that Mr. Song is not able to work in a job that is demanding or one that requires a significant degree of critical thinking. Therefore, employment in his field or a field commensurate with his education would be impossible for him. He is also not able to work in a full time position.

[17] In relation to his prospects for employment generally, Dr. Hall further stated on page 4:

Given aspects of his history, prognosis for an improvement that is sufficient enough to allow him to engage in full-time employment in his field is exceedingly poor. Prognosis for Mr. Song’s ability to remain marginally employed in a job with few demands is guarded to fair.

[18] Dr. Hall also made it clear that she considered that Mr. Song’s mental condition would have been adversely affected by acrimony in the home and currently by any pressures in the workplace. In particular, she testified that marital conflict within the home could well have contributed to a downwards spiral in Mr. Song’s mental condition.

[19] As noted, some of Mr. Song’s testimony displayed his mental illness. His manner was inappropriate and bizarre at times, as was some of his testimony. I think it is relatively clear on the evidence that Mr. Song was subjected to significant stressors in the final months of cohabitation with Ms. Wang. In particular, he had strong feelings of inadequacy due to his continuing unemployment and was under pressure from Ms. Wang who understandably wished him to return to the professional workforce. In addition he found himself in a rapidly deteriorating personal relationship with his wife and ultimately from the criminal charges which followed his physical attacks on Ms. Wang.

[20] It was Dr. Hall’s opinion that Mr. Song could benefit from appropriate medication and psychotherapy. She noted that unfortunately Mr. Song was resistant to medication (which he considers to be poison) and was intent on meditation and exercise as his only therapies. Mr. Song corroborated these views in his own evidence, in which he indicated a resistance to obtaining any treatment and demonstrated very little insight into his condition.

Issues

[21] I will address the issues under the following headings:

(a) division of proceeds from the matrimonial home and equalization of net family property;

(b) child support for J.S.;

(c) spousal support for Mr. Song.

Division of Proceeds from the Matrimonial Home and Equalization of Net Family Property

[22] The parties’ principal asset is their matrimonial home which was acquired in the summer of 2003. An appraisal report dated February 16, 2012 was filed on consent of the parties as evidence of the current value of the matrimonial home (Exhibit 2). That report indicates, and I accept, that the fair market value of the matrimonial home as at the date of trial was $520,000. The mortgage balances as of that time were $130,394. Accordingly, the equity in the matrimonial home is approximately $389,605. If the proceeds of sale were divided equally, as I conclude should be the case, each party would be entitled to equity of approximately $194,800.

[23] Ms. Wang claims an unequal division of the equity in the matrimonial home, or in the alternative, a valuation of the matrimonial home based on the date of separation, December 1, 2006. Mr. Song’s position is that he is entitled to one-half of the current equity in the home and that he desperately needs his share of his capital in the home in order to acquire reasonable accommodation for himself. It is not disputed that since the parties’ separation effective December 1, 2006, Ms. Wang has lived in the matrimonial home, where she remains to date. She resided there with her daughter J.S. until September of 2009 when J.S. began her university studies in Toronto. Ms. Wang has carried the mortgage, taxes and utility costs without contribution from Mr. Song. Mr. Song, for his part, continues to live in a rooming house with several other men under extremely modest circumstances. His income is from his part time work at McDonalds and from money loaned by or provided by his brother. He has neither paid child support for J.S., nor received any support by way of occupation rent or otherwise from Ms. Wang since the parties’ separation.

[24] Under section 5 (6) of the Family Law Act, upon a breakdown of a marriage, the parties are entitled to an equalization of their net family properties unless this would be “unconscionable”. The section states:

5 (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having respect to,

(a) A spouse’s failure to disclose to the other spouse debts or liabilities existing at the date of marriage;

(b) The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) The part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) A spouse’s intentional or reckless depletion of his or her net family property;

(e) The fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) The fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) A written agreement between the spouses that is not a domestic contract;

(h) Any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[25] Mr. Song argues that if one were to notionally impute to him a reasonable sum representing occupation rent in respect of his one half of the matrimonial home, this would roughly equate with the sums Ms. Wang has paid for the carrying costs of the matrimonial home with the result that it is neither inequitable nor unconscionable that he receive half of the net proceeds of sale. I think this is a correct approach on the facts of this case. I adopt the analysis of Sheffield J. in Leclair v. Leclerc (2003) Carswell Ont. 1802 in which the spouses put forward competing claims in respect to post separation contributions to the matrimonial home. The wife had exclusive possession of the jointly owned matrimonial home with the children since the date of separation and accepted full financial responsibility for the maintenance and upkeep of the matrimonial home, including the mortgage and tax payments. The mortgage was reduced by some $20,000 post-separation. Justice Sheffield rejected both the husband’s claim for interim occupation rent and the wife’s claim for post-separation contributions to the carrying costs of the home. At paragraphs 117 and 118 of his decision, he states:

117 I accept Ms. Leclerc’s position and reject Mr. LeClair’s request for occupation rent. Ms. Leclerc has been responsible for all financial expenditures to the matrimonial home since separation and has provided financially for both herself and the children without any assistance in that regard from Mr. LeClair. Accordingly, I do not believe it would be fair or proper in the circumstances to make an award of occupation rent.

118 Neither do I believe it is fair or appropriate to grant Ms. Leclerc a full reduction of all monies paid toward the mortgage following separation. She has had the use of the home for her and the children since separation and has had the benefit of Mr. LeClair’s equity in the same for a period of nearly three years.

[26] Ms. Wang appears to rely on subsections (g) and (h) of the Family Law Act in support of her unequal division claim. She alleges that in China and for the last two years of their cohabitation, following Mr. Song’s lay off from his employment, and also after the parties’ separation, she has completely assumed the child care costs of the parties’ daughter and she has paid all expenses related to the matrimonial home. In addition, she relies on several agreements signed by the parties (discussed below).

[27] On my view of the evidence, for the reasons which follow, I am unable to conclude that an equal division of the parties’ net family property, or an equal sharing of the net equity in the matrimonial home, would be unconscionable. Putting the matter at its highest, Ms. Wang has suffered unfairly from the fact that Mr. Song’s psychiatric condition and his related employment limitations have kept him from contributing in any meaningful way to his family. I find that this is the result of Mr. Song’s mental health issues and while unfortunate, cannot constitute a reason to deprive him of his share of the net family property, which he requires in order to re-establish himself. As noted previously, I have found that while in China and then subsequently in Canada, up to the point of when Mr. Song lost his employment, both spouses shared the expenses of their marriage, including housing and child care expenses equitably and for the most part, equally. This case is readily distinguishable from several cases relied on by Ms. Wang in which an unequal division was granted in circumstances where a spouse has contributed little to the marriage and depleted family assets as a result of alcohol or drug addictions.

[28] It is not the court’s function to attempt to determine the respective financial contribution of the spouses over this 16 year marriage. However, I do note that between the time the parties came to Canada in 2000 and the marriage breakup in late 2006, the earnings of each spouse were nearly equal. In addition, the parties’ mortgage was paid down from $238,000 at the time of purchase of the matrimonial home to $180,473 at the date of separation, which reduction was achieved from the parties’ joint resources. The evidence also establishes that prior to the breakup, Mr. Song was an active and involved parent and was of material assistance to Ms. Wang in her remarkable efforts to improve her English and to obtain her Canadian P. Eng. designation. In my opinion, it would not and does not shock the conscience of this court, in the circumstances of this case, to award Mr. Song an equal share of the equity of the matrimonial home and of the net family property. I rely on the words of Blair J.A. in Serra v. Serra (2009), 2009 ONCA 105, 93 O.R. (3d) 161 (C.A.) at paras. 47 and 48.

. . . the threshold of “unconscionability” under s. 5 (6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court:”

The Agreements

[29] I will now discuss three agreements between the parties which were the subject of evidence at this trial.

[30] Ms. Wang asks the court to recognize three agreements signed during the course of the marriage. The first agreement dated July 26, 2003 is argued to be enforceable in its own right, whereas the latter two agreements are suggested to be appropriate for consideration of an unequal division of the proceeds of the matrimonial home.

[31] Dealing first with the July 26, 2003 agreement, which was signed by Mr. Song on July 29, 2003 without a witness and then by Ms. Wang on July 30, 2003 in the presence of the parties’ real estate solicitor, Mr. Cheung. The document reads as follows:

Since December 16, 2002 Dongxia Wang has used her personal property at an amount of CAN $23,363 (Twenty Three Thousand Three Hundred and Sixty Three Canadian Dollars) for the down-payment of the purchase of the family house, which is located at 2128 Saunders Ave., Ottawa, Ontario, Canada K2A 4C7 and co owned by Gangjie Song and Dongxia Wang.

Gangjie Song and Dongxia Wang have reached the following agreement through negotiation:

1. Within one year after the mortgages of the above mentioned house has been paid off in full amount, both of them will return the amount of CAN $23,363 (Twenty Three Thousand Three Hundred and Sixty Three Canadian Dollars, excluding interests) to Dongxia Wang.

2. If the above-mentioned house is sold:

1. If the house is sold because of Gangjie Song, he must immediately return the amount of CAN $23,363 (Twenty Three Thousand Three Hundred and Sixty Three Canadian Dollars) to Dongxia Wang; in addition, Gangjie Song must pay Dongxia Wang the interest at the annual rate of 10% calculated from the date of December 16, 2002.

2. If the house is sold because of other reasons, the amount of $23,363 (Twenty Three Thousand Three Hundred and Sixty Three Canadian Dollars) must be returned to Dongxia Wang without interests.

[32] This agreement was signed just prior to the closing of the purchase of the matrimonial home and was intended, on the part of Ms. Wang, to protect the contribution of what she saw as her personal funds ($23,363). These funds were brought over with her from China and kept in a separate bank account. She testified that the funds were from a variety of sources including gifts, inheritances and savings. There exists the possibility that some portion of these funds would have been considered excluded property. Ms. Wang testified that she was reluctant to invest these funds in the matrimonial home due to Mr. Song’s disclosure two years earlier that he had been disloyal and to her doubts about the strength of the marriage and Mr. Song’s initial equivocation in closing the purchase of the home.

[33] It was the evidence of the solicitor that he provided no advice regarding this document and simply asked the parties whether they were in agreement with it, whereupon he signed as a witness to the wife’s signature. He did not send either party for independent legal advice.

[34] It is Ms. Wang’s position that this agreement evidences a valid debt which should be paid from the proceeds of the matrimonial home and that with the 10% interest contemplated by the agreement, the amount currently due is approximately $46,000.

[35] I would not enforce this agreement for a number of reasons. There was no effort at disclosure and no independent legal advice. It is far from clear whether the funds, although segregated by Ms. Wang, were actually excluded property as gifts from her family or otherwise. The agreement does not appear to contemplate payment upon separation and the operative term “if the house is sold because of Gangjie Song” is extremely uncertain. In the circumstances, I do not think it can be ascertained as to whether the house was sold “because of” Mr. Song or due to “other reasons”, within (2) of the agreement. I note as well that Mr. Song’s signature was not properly witnessed and therefore does not meet the formal requirements of section 55 (1) of the Family Law Act. Finally, this note evidences a debt which if enforceable should be disclosed as part of the parties’ net family property. In conclusion, I consider this agreement to be unenforceable.

[36] The next “agreement” is that of September 5, 2006, the text of which reads as follows:

It has been two years and one month that Gangjie Song has no professional job.

Gangjie Song must give this house (2128 Saunders Avenue) to Dongxia Wang.

On September 5, 2006 Gangjie Song repeated that he stayed at home in order to give this house to Dongxia Wang (Song nodded and agreed) to upgrade his skills and to earn enough money to purchase the house.

[37] This note is dated several months prior to the separation and in the context of the deterioration of the marriage. Mr. Song denied that he had signed the note but I find that the evidence establishes that it was in fact signed by him. It was not witnessed and there was no independent legal advice. As with the other agreements, it was written in Mandarin and translations were filed with the court. It can be interpreted as a release of Mr. Song’s interest in the matrimonial home although in his trial evidence he denied that he had any such understanding or intention. Ms. Wang volunteered in her evidence that the agreement was her attempt to offer Mr. Song “encouragement” to return to the workforce. No steps were ever taken to transfer title pursuant to this agreement. Ms. Wang’s counsel conceded in argument that it was doubtful if this agreement was enforceable and I respectfully agree. This agreement was also signed at a time when, in retrospect, it would appear that Mr. Song’s mental condition was deteriorating. The argument, as I understand it, is that this agreement supports an argument for an unequal division of net family property, rather than being enforceable per say.

[38] The final agreement was a note dated July 19, 2008. Mr. Song testified that just prior to the renewal date of the mortgage, he received a call from his daughter J.S. to meet him at a location near a local shopping centre. When he arrived, she presented him with a piece of paper and told him that her mother wanted him to sign the document. The text of the document was as follows:

To Whom It May Concern,

As I have not paid my share of the mortgages of the house located at ... I relinquish all my rights to the principal amounts in this period. Dongxia Wang owns the whole principal amount from Dec, 2006 on.

July 19, 2008

Gangjie Song

[39] This document might be interpreted to suggest that the post separation reduction in the mortgage would be retained by the applicant. Mr. Song testified that he signed the note because he understood that if he did not, Ms. Wang would make no further mortgage payments and the matrimonial home would be lost. He had no independent legal advice and at the time of signing the document was suffering from a mental illness. He retained counsel shortly after that point and repudiated the document. This “note” was tendered in support of the unequal division of proceeds of the matrimonial home.

[40] In summary, with respect to the three above-mentioned agreements, I do not consider these agreements to be enforceable for the reasons noted, nor, in my view, would they justify an unequal division of the proceeds of the matrimonial home. To state the matter otherwise, the failure to give effect to these “agreements” and thereby to divide the proceeds equally, would not ‘shock the conscience of the community’ and would not be unconscionable.

Child Support for J.S.

[41] Mr. Song should be required to pay lump sum child support retroactive to the same date as he will receive spousal support (September 5, 2008, discussed below) which is to be paid to Ms. Wang in a lump sum to be set off against Ms. Wang’s spousal support arrears payment. In terms of quantum, I note that J.S. is currently in the final term of her four year undergraduate science degree and she hopes to enrol in medical school next fall. As mentioned previously, J.S. left the matrimonial home to attend university in Toronto in September of 2009.

[42] Although J.S. plans to attend medical school, it is not yet clear if she will be admitted and, if so, whether she will reside with her mother or elsewhere. In any event, I am of the view that having supported J.S. through four years of her undergraduate degree, there should be no legal requirement on her parents’ part to continue child support through medical school. Mr. Song, by reason of his inability to maintain full time employment, is not in a position to pay child support and lives at a very modest level and will continue to do so even with the support contemplated by this judgment (discussed below). I am mindful of the fact that Ms. Wang is likely to continue to contribute significantly to support J.S. in her future schooling as likely are the paternal grandparents and potentially family members of both parents. This is a family, on both sides, who have prioritized and emphasized academic achievement and continuing education as a part of the family culture. Regrettably, Mr. Song is no longer in a position to contribute to this endeavour. Ms. Wang seeks a lump sum payment in lieu of future support for J.S. out of the capital from Ms. Song’s share of the matrimonial home. I am of the view that this is not reasonable having regard to Mr. Song’s urgent need for his capital in order to establish a residence and modest standard of living on his own. Moreover, the case law and the Child Support Guidelines base support on income and not capital redistribution, see M. (T.J.) v. M.(C.R.) and C.R.M., 2009 BCSC 112 (B.C.S.C.) and Rhynold v. Van der Linden (2007), 2007 NSCA 72, 40 R.F.L. (6th) 46 (N.S.C.A.).

[43] I have found it challenging to calculate child support arrears owing by Mr. Song due to the manner in which this information was presented to the court. I would however accept the calculations tendered by counsel for Mr. Song and find the amount due up to and including the year 2011 is in the range of $5,044 to $7,500. I award the sum of $7,500.

Spousal Support

[44] Mr. Song seeks spousal support under section 15.2 of the Divorce Act. In assessing this claim, I note in particular sections 15.2 (5) and 15.2 (6) of the Act, which provide:

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

15.2(6) An order made under subsection (1) ... that provides for the support of a spouse should

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

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

(c) relieve economic hardship of the spouses arising from the breakdown of the marriage; and

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

[45] In my opinion, Mr. Song is entitled to spousal support based primarily on need. To a lesser extent his support entitlement is based on compensatory factors considering the parties inter dependent relationship in Canada prior to the separation. Mr. Song made no sacrifice for his family while in China, beyond similar sacrifices made by Ms. Wang. In my view he did not sacrifice his career for his family by declining the transfer offered by his former employer. I find he did that primarily to engage in his own academic and vocational interests, but also to preserve the status quo with respect to the parties’ residence, J.S.’s school and Ms. Wang’s employment. His assumption of additional household duties to assist Ms. Wang in obtaining her P. Eng. designation was not out of the ordinary but was nevertheless of significance. In my view, Mr. Song’s entitlement to support is based primarily on his psychiatric condition which significantly reduces his ability to be self supporting. This was a marriage of over 16 years in which the parties equally shared the economic and the child rearing responsibilities until about the time of separation. For reasons unknown, Mr. Song suffered an onset of symptoms in the last two years of the relationship, triggered or exacerbated, in Dr. Hall’s view, by the acrimony between the parties and the criminal charges surrounding the breakup, which prevented Mr. Song from returning to any sort of professional or even full time employment of any sort. In reference to section 15.2 (6), quoted above, a support order is warranted to recognize the economic disadvantage that Mr. Song has suffered from the breakdown of this lengthy marriage and to ameliorate of the economic hardship which he faces.

[46] In assessing the quantum of support for Mr. Song’s “needs” based claim, I think the objective is to ascertain an amount sufficient to allow him to achieve the modest lifestyle reflected in his proposed budget filed in this proceeding, which contemplates an apartment, a vehicle of his own, and a budget for groceries and clothing. I do not accept Ms. Wang’s submission that Mr. Song should have imputed to him a professional level of income similar to his remuneration prior to being laid off. This is totally unrealistic in view of Mr. Song’s psychiatric condition. I accept Dr. Hall’s evidence that part time employment in a fast food restaurant is all that can currently be expected of Mr. Song.

[47] Mr. Song earned the following amounts from his part time employment at McDonald’s: $14,997 (2008); $16,126 (2009); $9,804 (2010); and $10,650 (2011). I am of the opinion that it is reasonable to attribute annual earnings of $16,126 to Mr. Song, which is the maximum he has ever earned since the marriage breakdown. This contrasts with Ms. Wang’s income from employment which escalated from $60,533 to $71,148 in the same four year period.

[48] Based on the SSAG guidelines, Ms. Wang is to pay spousal support of $1,018 per month to Mr. Song, commencing January 1, 2013. I employ the guideline’s low range on the basis that Ms. Wang will almost certainly continue to use her funds to support the educational advancement of the parties’ daughter J.S. The duration of spousal support is 12 years subject to review four years from the date hereof in order to determine if Mr. Song has taken reasonable steps to seek appropriate therapy for his psychiatric problems so as to become more economically self sufficient. This spousal support should be made retroactive to the date the spousal support was formally requested, being September 5, 2008. I find that spousal support arrears are in the sum of $40,272, to be paid to Mr. Song from Ms. Wang’s share of the net proceeds of the matrimonial home.

Disposition

[49] In summary, the following orders will issue:

1. The applicant Ms. Wang is granted a divorce.

2. An Order requiring Ms. Wang to pay $1,018 in spousal support to Mr. Song commencing January 1, 2013 to January 1, 2025.

3. An Order indexing spousal support on the anniversary date of this Order in accordance with the percentage change in the consumer Price Index for Ottawa for prices of all items since the same month of the previous year, as published by Statistics Canada.

4. An Order requiring Ms. Wang to pay Mr. Song $40,272 in retroactive spousal support on an after tax basis based on low end Guideline figures from the date of formal demand, namely September 5, 2008, such sum to be paid from Ms. Wang’s share of the net proceeds of sale of the matrimonial home.

5. An Order requiring Ms. Wang to maintain Mr. Song as irrevocable beneficiary of any policy of life insurance owned by her to secure her obligation to provide spousal support.

6. An Order fixing Mr. Song’s ongoing child support obligations at $250 per month for the period January 1, 2013 and terminating as of July 1, 2013, which total of $1,500 is to be paid as a lump sum to be set-off against retroactive spousal support due and owing.

7. An Order fixing Mr. Song’s retroactive child support obligations at $7,500 such sum to be set-off against retroactive spousal support due and owing.

8. An Order requiring that the matrimonial home be listed for sale on the multiple listing service at a price no less than $590,000, with the net proceeds of sale being paid out to the parties in equal shares, subject to the other provisions in the Order.

9. An Order requiring Ms. Wang to deliver to Mr. Song, within 30 days of the date of the Order the following items from the matrimonial home: pinewood desk and chair, LCD computer screen, Toshiba notebook, and pinewood double bed and mattress or as otherwise agreed or to be agreed by the parties.

10. An Order requiring Ms. Wang to pay to Mr. Song an equalization payment in the amount of $16,866.89 along with pre and post-judgment interest at the rate prescribed by the Courts of Justice Act from December 1, 2006.

11. An Order dismissing all other claims in this proceeding.

[50] I may be spoken to concerning any implementation or calculation issues arising from these reasons.

Costs

[51] Any party seeking costs is to provide a concise written submission within 30 days of the release of this judgment.

“Hackland R.S.J.”

Mr. Justice Charles T. Hackland

Released: January 9, 2013