COURT FILE NO.: 45634-11

DATE: 2013-07-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Alison Jane May, Applicant

• and -

Peter John May, Respondent

COUNSEL: M. Milczarczyk, for the Applicant H. Geertsma, for the Respondent

HEARD: June 17, 18, 19, 20 & 21, 2013

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

REASONS FOR JUDGMENT

I Issues to be Decided

[1] The remaining issues that consumed a week of trial time included:

(a) a determination of what equalization payment is owing after analyzing the Net Family Property statements and the evidence presented to the court upon which it can base its conclusions on a balance of probabilities;

(b) a determination of child and spousal support both prospective and retroactive for the parties’ two children, Abigail and Lewis, in light of the changing living arrangements of those children, post separation;

(c) a determination of the parties’ incomes, post separation in order that the court can reasonably and fairly decide child and spousal support obligations one to the other; and

(d) costs.

II Facts/History and Preliminary Findings

[2] The parties married in Bristol, England, 19 years ago on August 13, 1994. It was Mr. May’s second marriage. He had settled his matrimonial affairs with his first wife, Cherylyn Vokins, who testified at trial by video link from England. She recalled a friendly resolution of matters between her and Mr. May, with her taking whatever chattels she wanted and a cash settlement of somewhere between 3,000 and 5,000 pounds.

[3] Ms. Vokins recalls, (and I accept) that in 1989 she and Mr. May purchased a home at 35 Fountain Drive, Bristol. She testified that she put no money into the purchase of the home, which she recalled “might have cost 72,000 pounds.” She wasn’t sure exactly how much Mr. May paid as a down payment, “perhaps 55,000 pounds”. In fact, independent documentary evidence (Exhibit #1, Tab #25) establishes that the house was bought for 92,500 pounds on May 31, 1989. Mr. May recalls, and there is sufficient corroboration (see Exhibit #13 and Exhibit #29) that allows me to accept that there was a mortgage placed on the home of 62,500 pounds, thus establishing, on balance, that Mr. May paid a down payment at that time (May 1989) of 30,000 pounds (despite Ms. Vokins’ “best guess” that it was significantly more than that).

[4] Ms. Vokins also recalls that she and Mr. May extended the garage in 1991 (or ’92) so that Mr. May could store his water ski boat there in the off season (plus have room for a car).

[5] After separation from Mr. May in 1992 or ’93, she recalls that Mr. May had his boat, a Cavalier GSi car, at least one-half of their furniture and extensive car hi-fi equipment (that was “his hobby”).

[6] At the time of their marriage in August 1994, Mr. May continued to work for an insurance company and Ms. May worked for a tourism company as a travel agent. As confirmed by Ms. Vokins, Mr. May was then (in the 1990’s) earning between 25,000 to 30,000 pounds per year. (she earned only about 12,000 pounds) Ms. May recalls earning about 14,000 pounds in the mid – 1990”s.

[7] The parties’ evidence is quite opposite regarding the existence (or not) and value of Mr. May’s date-of-marriage assets that he brought to this marriage. However, regarding the parties’ credibility on this issue and their current incomes, (both during their marriage and after separation), I shall comment later. Suffice it to say that at this point, I am satisfied (since it is mostly corroborated independently by evidence other than Mr. May’s own bald assertions) that at marriage, Mr. May owned a house, furniture, a car, hi-fi equipment, a boat, a pension and a Tag Heuer watch.

[8] At trial Ms. May was unable to produce any corroborated evidence that she brought any assets into the marriage. Apparently, until they started living common law in Mr. May’s house in the Fall of 1993, she had been living at her parents’ home. Ms. May asserts that she too brought a valuable watch and a Rover motor vehicle into the marriage. She is unable to produce any proof of value for either of those assets. Mr. May disagreed with her and asserts that it was he who bought and paid for that watch and the Rover vehicle and that Ms. May should not gain an unfair benefit from something that he provided to her. Since he also cannot prove the value of either item, he is not claiming a date-of-marriage-deduction for the ladies’ watch or for the Rover car on his Net Family Property Statement.

[9] The best that Ms. May could do is to produce a “Certificate of Guarantee” (Exhibit #2) that identifies the purchase of a Raymond Weil watch from Walker & Hall Galleries in Bristol on October 23, 1993. I have no evidence that the number “1907.2” written in under “Reference”, beside “Serial Number AK03552” actually identifies the value of the watch as 1,907 pounds 2 pence. The certificate produced also does not identify who paid for the asset, regardless of the value.

[10] It is ironic that even though I would like to accept Ms. May’s assertion that she bought the watch with her money and that it was worth at least as much as Mr. May’s watch (bought one month earlier) and that both watches were symbolic of their ‘engagement’, it is her own counsel, Mr. Milczarczyk, that argues strenuously that unless a party can produce documentary or directly corroborative proof of the actual value of a date-of-marriage-asset (s)he should not be credited any value whatsoever for any asset (s)he brings into the marriage. (even a car, a boat or a house) It would appear therefore that Ms. May is unfortunately “hoist on her own (counsel’s) petard”.

[11] After marriage Mr. and Mrs. May had two children, Abigail (called “Abi”), born in June 1995 and then Lewis, born February 1997. Other than taking maternity leave for 12 weeks after each child was born, Ms. May continued to work outside of the home and the children were taken to day care once she returned to work.

[12] Ms. May says that after Abi was born she reduced her full-time employment to 24 hours per week, then to 18 hours per week after Lewis was born. She says that she continued part-time work for another three years after Lewis was born. Mr. May disagrees. He testified that Ms. May returned to work full-time after both children were born. After the children were born Mr. May was rewarded with an ever-increasing income, which he says allowed them to eventually decide that Ms. May only needed to work part-time. His increased salary allowed them to continue the lifestyle that they had enjoyed before the children were born and allowed Ms. May to gradually ease out of travel agency work and to train to start her own nail business from their home.

[13] Indeed, in late 1996 as a result of Mr. May’s increased income, they took on another home renovation at the 35 Fountain Drive home.

[14] On December 12, 2001 they sold 35 Fountain Drive and used the proceeds from that sale to buy 6 Lewis Close for 277,000 pounds (see Tab A1 of Document Brief for Peter May and Tab 26 of Exhibit E1).

[15] Mr. May says that Ms. May had started a home-based nail fashion business in 2000 while they still lived at 35 Fountain Drive. Ms. May disagrees and testified that she started that business in June 2002 “after they had moved to Lewis Close” in December 2001. However, Exhibit #8, (which is a copy of Ms. May’s own nail business website), reveals that “Ali started 10 Perfect Nails in February 2001” some ten months before they moved to Lewis Close. I accept the evidence of the Exhibit, rather than what either party remembers. I will comment more about their convenient memories and self-serving evidence later.

[16] In any event, both parties agree that Ms. May’s fingernail business was hugely successful. She continued that business in the U.K. until they emigrated to Canada in November 2006.

[17] Tab 21 in Exhibit #1 reveals that Mr. May’s income increased from 1992 to 1999 as follows: 1992 - 22,390 pounds; 1993 - 24,085 pounds; 1994 - 24,384 pounds; 1995 - 24,258 pounds; 1996 - 35,812 pounds; 1997 - not disclosed; 1998 - 28,150 pounds; 1999 - 36,380 pounds.

[18] Ms. May recalls that from 2001 until they left the United Kingdom, Mr. May earned in excess of 36,000 pounds per year and that she estimated her income “at about” 400 to 500 pounds per week (26,000 to 27,000 pounds per annum), much of it in cash. Mr. May testified that Ms. May did not declare any of that income to the government in the United Kingdom.

[19] The Mays sold Lewis Close on June 28, 2006 for 408,000 pounds. They paid off their mortgage of 216,680 pounds and netted 191,082 pounds, which funds they converted to Canadian funds and bought 905 Marigold Court in Kitchener for $480,000 as soon as they arrived in November 2006. They agree and I accept that that matrimonial home was worth $600,000 at separation in February 2011.

[20] After the Mays arrived in Canada, they started a partnership photographing weddings under the name “One 2 One”. Ms. May testified that she didn’t start her nail business in Canada until June 2008. Mr. May disagrees. He recalls that Ms. May re-started her nail business in Canada “right away”. He says uploaded her U.K. website in Canada exactly as it was in the U.K. and that she was one of only three websites in the Kitchener area in 2006.

[21] While business was slow for both the May’s businesses in 2007, by 2008 their businesses increased significantly. By 2009 Mr. May estimated Ms. May’s income at “up to $400 per week” (over $20,000 per year). By 2010, Ms. May’s business grew so much that he says that he was “shocked” by how much cash Ms. May was bringing into the family safe. (where they both collected the cash generated from both of their businesses). No records were kept by either party of the extensive amounts of cash that they received between 2007 and 2010, until they were audited by Canada Revenue Agency (CRA) in 2009. Mr. May explained that they “got through” that audit “by the skin of our teeth”. After that experience, although they continued to regularly accept cash for discounts and to put the cash from both businesses into their safe, Mr. May started keeping two sets of books (“the pink invoice system”, see Exhibit #7). “We covered our tracks” he admits under oath, so that if there was another audit “we’d be squeaky clean”.

[22] Mr. May also testified that this cash-for-services system was a joint venture; that “we absolutely talked about it” and that Ms. May knew about the audit; the second set of books (the pink invoices); and that they were not declaring that part of their income to CRA.

[23] During her testimony, Ms. May pretended ignorance and denied any knowledge of Mr. May not disclosing their true income to C.R.A. for 2009, 2010 and 2011 (“he did all that financial stuff; I didn’t know anything about the finances or the taxes”).

[24] Mr. May estimated that in 2010, they “shot” about 42 or more weddings (“it was a very busy year”) and that Ms. May’s nail business was flourishing. He estimated that they generated about $22,000 in undeclared cash in 2009 and 2010. Of course, there is no record that could confirm his self-serving “estimate”. He said that during that period they had “so much cash in the safe” that they spent as much as they could; we “got rid of cash as fast as they could,” for example, by paying $9,000 cash for a hot tub and also by buying two high-end sports cars for cash in the U.S.A. (a Porsche for him and an Audi T.T. for her). Apparently, Mr. May had discovered some illegal scheme whereby he could buy those luxuries for cash at a fraudulently depressed price and pay a reduced customs duty/tax. He alleges that the two up-market cars only cost him $7,500 each. At separation, two years later, they each valued their cars at $26,000.

[25] At trial, Mr. May conceded that the whole, undeclared-cash-for-assets process was “highly illegal” and was now, to him, “highly embarrassing”. He recalls that, but for the separation in February 2011, that year would have been their “busiest and best year ever” for the “two cash-businesses we had in our house”.

[26] Ms. May testified that after they moved to Canada Mr. May returned to the United Kingdom (in February/March 2007) to work for his friend Gary, who owned/ran a photography business there. (also called “One 2 One”). Mr. May’s brother, Stephen May, also owns/runs a photography business in New Zealand called “One 2 One” and another friend (Frank) does the same in Australia. Ms. May asserts that those four men travelled back and forth to each other, yearly, and that they worked for the prime wedding season in each of these countries (in New Zealand that is apparently March – their summer. Here in Canada it is June). Brother Stephen May was here this year again to do the same; hence he was available to give evidence on June 20, 2013, (Day #4 of the trial). Ms. May testified that Mr. May travelled to New Zealand to work “every year” and that while he was away, she would run both businesses. She said that he charged his flight and all expenses while there to the photography business and that she never saw any of the money that he made there. Mr. May “pooh poohs” that evidence. He asserts that he “just goes to visit” his brother in New Zealand. He produced a self-prepared statement called “New Zealand trips”, (Exhibit #20), that purports to “prove” that, except for 2009 when he shot one wedding for cash (no amount disclosed) he only “visited” and “vacationed” there. Apparently, Ms. May and the children were never invited on these visits or vacations.

[27] Exhibit #26 was prepared by Mr. May to try to show that his trips to New Zealand in March and November 2012, were for work and vacation. He asserts that the money earned was “transferred to One 2 One”. I cannot seem to find such a “transfer”. It certainly is not shown in Exhibit #27, which he alleged was a complete list of “all” One 2 One invoices for 2012. Accordingly, I am highly skeptical of the accuracy of this convenient paper that he created.

[28] I also find that, although confident and facile when explaining his “vacations” in New Zealand, Mr. May was unpersuasive when he tried to explain the source of the funds used to establish and maintain his New Zealand bank account, (found at Tab 17 of Exhibit #1). For someone who declared at 2010 income of only $13,000 and a 2011 “loss” of $2,300 (and swears that he only shot “17 weddings in total” for 2012) I do not accept that in 2012 he could fly to New Zealand twice and, on March 19, 2012, open a bank account with a cheque for $2,900, then eight days later, (on March 27, 2012) deposit another $2,865 and then two days later on March 29, 2012, another $2,920. I cannot accept that he was there only “on vacation”. His bald assertions, when considered against the bank account deposits are well beyond belief.

[29] I also do not believe Mr. May’s testimony about the real purpose of his frequent trips to New Zealand, nor his wide-eyed, innocent assurance that “working for (undeclared) cash” suddenly stopped at separation on February 9, 2011.

[30] I have concluded that a) Mr. May glibly made up his evidence to fit whatever challenge he faced and; b) he regularly prevaricated and dissembled during his evidence at trial and; c) distorted the facts to his benefit in much of the documents and e-mails that he “created” leading up to trial. (see his four widely divergent sworn financial statements filed in the Trial Record). I am supported in that conclusion after reading the Report found at Tab 12 of the Trial Record and listening to the evidence of Alison Sawatzky, Mr. May’s financial expert, when she testified that her report and her testimony was based upon an assurance that Mr. May was not doing any business in cash. (and that if he was, she would have conducted a much more in-depth examination than she was asked to perform). Mr. May did not inform his own expert witness of the “pink invoice”, second-set-of-books-system that he had in place in 2009, 2010 and 2011. His failure to fully and honestly inform his own expert hamstrung Ms. Sawatzky from performing her task professionally. His duplicity degraded the entirety of her report and her testimony to such an extent that both were wholly unhelpful.

[31] Ms. May also testified that on occasion, Mr. May would perform “destination weddings”. She says that she never saw any of the money earned from that part of the business. When pressed on that point, Mr. May “guessed” that he did “a few”; “maybe two”; he “didn’t know”. He dismissed that allegation as not important because when he did do those weddings, he did not “make any money” but only had his “expenses” paid. Ms. May was also never invited to help at any of those ventures, even though, Mr. May asserted, that two photographers provide a much better result than only one photographer, (as is touted on their website). When pressed he could not remember any details of even his three most recent destination weddings; Mexico in November 2012; the Dominican Republic and Jamaica earlier in 2013. I do not accept his convenient loss of memory regarding such recent and significant business ventures. I see no entry in his “full disclosure” list of 2012 invoices for weddings (Exhibit #27) regarding the November 2012 Mexico trip. I disbelieve this evidence, given Mr. May’s admitted history of non-disclosure of his true income to C.R.A. and to Ms. Sawatzky.

[32] Ms. May testified that they ‘actually’ separated in November 2010 but she stayed in the matrimonial home (separate and apart) while she waited for her condominium to be readied. Mr. May does not disagree on this point. Despite their “separation” the Mays continued to work together in late 2010. She worked at her nail business and together they worked the annual wedding shows that took place in 2010 from October to January. She asserts, (and he doesn’t disagree), that as a result of that effort they became “crazy busy” each year for eight weeks after the wedding show season.

[33] Ms. May’s new condo was ready by February 2011. As they had agreed, Mr. May increased their line of credit by $262,000 (to about $360,000) so that she could buy, then move into her new place (mortgage free) on February 9, 2011. That is the date the parties agree can be used as a valuation date for all property and support calculations.

[34] Ms. May says that she used $12,000 of the money advanced to her to renovate her condo basement (starting in March 2011) so that she could continue her 10 Perfect Nails business there. They agree that Mr. May helped a little with those renovations.

[35] One child moved to the condo with Ms. May on February 9, 2011 and the other stayed with Mr. May. Although the children switched homes from time to time after separation, each party always had one child living with them, until both children decided to live with their father on October 1, 2012. Both children continue to live with their father at present.

[36] Abi turned 18 in June 2013. She had completed high school in January 2013 and has since then worked full-time/part-time as a hostess at a local restaurant chain. She is registered to return to full-time post-secondary education at Conestoga College this September 2013.

[37] Ms. May testified that she had “an agreement” with Abi and has paid $3,000 towards her tuition cost. She says in October 2012 she bought Abi a car for $5,000. Apparently that car was sold and Ms. May agreed that Abi could “keep the proceeds” which Ms. May estimated “at between $2,000 to $3,000”. Like much of Ms. May’s evidence regarding money matters, she was vague about the amounts and I am unsure whether the two amounts are the same money. Ms. May has nothing to offer to corroborate any of that testimony, including her assertion that there is money “set aside” for Abi in a TFSA.

[38] Right after separation in February 2011, Mr. May again went to New Zealand for three weeks to work (she says) or to vacation (he says – strange timing for a holiday, just after the separation). As usual, Ms. May ran both the photography and her nail business until his return.

[39] Immediately upon Mr. May’s return, on advice from his bookkeeper (he calls her his “accountant”) he incorporated the photography business, hence his corporation financial income and bank statements, filed at Tabs 13, 14 and 22 of Exhibit #1.

[40] At separation in early February 2011, Mr. and Mrs. May amicably “split” the assets of the photography partnership. Ms. May took all of her nail business equipment and furniture and to compensate Mr. May kept more of the photography equipment and furniture, to “even out” the values of that split.

[41] For purposes of the equalization, Ms. May concedes that she received photography equipment of a value of $10,000 and that Mr. May kept equipment that she claims was worth $29,510. Mr. May’s position is that it was all divided “in kind” and that no values should be assigned to that division. However, in April 2011, one month after separation, when Mr. May incorporated his photography company, he “sold” all of his remaining photography equipment to the company for $29,510.

[42] Unfortunately for her, Ms. May suffered a strange break-in at her new condo on April 10, 2011, coincidentally while she was away for the weekend. (just after Mr. May had returned from New Zealand). Most of her camera equipment was stolen, together with a $300 Xbox and a $50 DVD player. Oddly, the thief (thieves) left her “expensive Rolex” watch that was sitting in the open on her jewellery stand in her bedroom. She did not file an insurance claim and the police have been unable to solve the crime. She says that nothing has been recovered. It is clear from the manner in which she offered this part of her evidence that she believes that Mr. May either perpetrated the theft himself, had someone do it for him (he testified that he was away for the weekend too) or that he knows who did it. There is absolutely no direct proof upon which Ms. May can base her suspicions. Indeed, at Tab 1 of Exhibit #1 there is an abusive and insulting response by Mr. May to an e-mail from Ms. May (dated April 13, 2011) that, with many expletives, Mr. May explicitly expresses his anger and rage at Ms. May for losing the two expensive cameras. It is of interest to me that her e-mail to him lists the theft of different things than to what she testified at trial. Secondly, Mr. May makes a reference in that email that “you should have reported that first attempted break-in like I asked you to when I was in New Zealand. Why you didn’t I have absolutely no idea, I tried to do it for you for the safety of our kids, you did not even f..ing (expletive deleted) bother …”. Ms. May made no mention at all at trial about a first attempted break in.

[43] I do not accept that Mr. May committed (or caused to be committed) that alleged theft. He had a very busy 2011 booked and, at that point, needed Ms. May to carry her share of those commitments. I accept his protestations that he had no motive whatsoever to do or cause to be done such a thing and much to lose by it happening. As a result of the theft, Ms. May had no equipment to perform her share of the contracts. In addition to being able to meet his business commitments for the year, Mr. May needed Ms. May to be earning an income so that she could become or continue to be, self-sufficient, hence relieving him of any claim for spousal support by her from him.

[44] From April 2011, despite a few attempts to resolve their differences and work One 2 One together, (including Mr. May bringing a professional camera for Ms. May to use to a case conference; which she did not use; then, when asked, returned it to Mr. May), the parties never worked together after March 2011.

[45] Mr. May complained continuously (by way of mocking and provocative e-mails and otherwise) about the business lost and complaints received as a result of Ms. May withdrawing from the photography business. On her part, the more abuse he showered upon her, the more convinced she became that neither could she, nor did she want to, work with Mr. May. There are several examples of e-mails at Tabs 2 through 6 inclusive, of Exhibit #1 from Mr. May to Ms. May (from April 15, 2011 to April 21, 2011) entreating Ms. May to come back to work and proposing different scenarios that he thought could work for them. Indeed, at Tab 7 of Exhibit #1 there are minutes of a business meeting of One 2 One, held on April 21, 2011, at which it is clear that the participants hoped and expected that Ms. May would continue to work with them so they could meet their wedding obligations.

[46] In response to those entreaties, similar to how she reacted to Mr. May sending her some customers for her newly re-established 10 Perfect Nails business at her condo (she rejected them as “clients” because she believed that they were “sent” by Peter to “spy on her” and report back to him) Ms. May refused his offers; because Peter had asked “his girlfriend – Cindy”, to help him with his business.

[47] When asked, Ms. May had “no idea” how many nail business customers she had in 2011; “hardly any”. When asked how many carry-over customers from 2010 to 2011 she kept, her response was “I can’t remember”.

[48] Ms. May and her current boyfriend, Matthew Bellow (who testified at trial and who had begun a relationship with Ms. May on March 29, 2011 while Mr. May was in New Zealand) testified that it took until May 2011 to retrieve Ms. May’s 10 Perfect Nails website-disc from Mr. May. He said that the disk had been “tampered with”. Mr. May disavows any knowledge of such tampering and denied doing such a thing. Again, he asserts that it would be against his own financial interest to try to sabotage Ms. May’s nail business. However, when one reads some of the taunting and provocative e-mails that he sent to Ms. May (see Tabs 8, 9 and 10 of Exhibit #1) it becomes clear that Mr. May had a very high level of anger against her.

[49] Ms. May asserts that although she actively job searched in 2011, she was entirely unsuccessful, as was her nail business. Exhibit #3 shows that she applied for two jobs, one in May and one in June 2011. There is no evidence of any job applications then until September 2011. (after she began receiving Ontario Works in August 2011, the present euphemism for welfare benefits). The renovations to her basement for her nail business were not complete until June or July 2011 (she is not sure when) but despite correcting the website coding-errors in June, she testified that she only had “some” business; “not much” in 2011. She could not say what she earned from her customers. Again, she kept no records at all of those transactions and her vague and equivocal evidence is unpersuasive that, as she professes, she earned no income from her nail business in 2011. She says she advertised with no success. So in May 2012 Ms. May converted the nail business area in her basement into an extra bedroom.

[50] From August 2011 until January 2012, Ms. May collected Ontario Works. Despite his flat denial and feigned innocence of never trying to obstruct or undermine Ms. May’s efforts to become self-sufficient, Mr. May conceded during cross-examination that he caused a complaint to be registered with Ontario Works in the Fall of 2011. He alleged to them that Ms. May was defrauding the system by earning undeclared income from her nail business. That complaint was not verified.

[51] Apparently in response to his complaint to Ontario Works, Ms. May was also willing to try to cause Mr. May some grief, as is evidenced by a series of emails sent by him to her between January and February, 2012. (see Tab 9 of Exhibit 1) as follows:

From: +15195000482

Received: Jan 25, 2012 4:19 PM

Ali, what on earth are your doing? I promise you, you will find no hidden cash since u left the business. I have run everything above board, I knew you would do this, give me some credit. All cash was banked and one2one suffered the taxes, you already have most of my business statements. Plus 5 of the 6 cash jobs you and I generated from both businesses in 2009 and 2010 is suicide. You are admitting to fraud. Enormous fines and possible jail time for us both. Skipping HST and income tax is a serious offence. I can’t believe your lawyer is doing this. My lawyer could not believe it. From Monday next week your lawyer will be dealing with mine. This is unbelievable. We were once friends, you have no idea how sad I am.

Received: Jan 25, 2012 4:23 PM

I promise you on our kids lives I am telling the truth, your lawyer will have everything next week, I have run a proper business! For once think of our kids or they will be visiting us in jail

Received: Jan 25, 2012 5:06 PM

My lawyer has just advise me that we will end up with criminal records if found guilty. You will loose your job immediately and will loose my commercial clients. My lawyer is going to call your lawyer Monday.

Received: Feb 24, 2012 11:00 AM

Moring Ali, A am not texting about Lewis, you obvious can’t be trusted so you are on your own with that from now on. So…I have just had a call from Revenue Canada. They are coming to my house in a couple of weeks to talk to me about 2009 and 2013 and potentially unpaid taxes. Their words not mine. I wonder who called them, hmmm…let’s guess –NOT frickin me! You are aware that you were joint owner of the one2one bank account and joint owner of the credit card. Ali am I going to come clean with Revenue Canada straight away about one2one and all the cheques and cash you siphoned through our bank account for 10 Perfect nails. I am sick and tired of worrying about what you guys are doing or going to do next with your games. Ali we knew what we doing with cash, so let’s face it head on and pay the consequences. This is going to coat you and I a small fortune, plus some pretty heavy fines. I just thought I would let you know, and thank you very much for doing this it really helps us all. My new Inc company is not being investigated at all, nor being brought into the equation. They were very clear that they are only interested “our” self-employed income for 2009 and 2012. I will obviously keep you posted!

[52] When asked how she met expenses after separation until she started receiving Ontario Works, Ms. May revealed that she had arranged a $50,000 line of credit secured against her then encumbrance-free condo. (at an interest rate of prime plus one-half) She testified that she used that source of money for expenses. By July 2011, the balance of the line of credit was $11,000 (see Tab #3 of Trial Record, page 7). By January 2012, that debt had increased to $23,500 (see Tab #5 of Trial Record, page 7) despite living common law with Mr. Bellow (since September 2011) and sharing expenses. Apparently she and Mr. Bellow took a trip together to England in 2011 during which time she had no income and was receiving Ontario Works benefits.

[53] It wasn’t until May 2012 that Ms. May finally sold her Audi T.T. sports car for ($26,000). She down-sized to a 2009 Mini Cooper which cost her $18,000. By that transaction she generated a “savings” of $8,000. She did not use any of this excess cash to pay down her Line of Credit debt. Despite that injection of cash, (and living with Mr. Bellow, who then was earning $55,000 per year), by November 30, 2012 her line of credit balance had increased to $30,000. By May 27, 2013, her line of credit balance has increased to $40,000, despite earning employment income from Superior Propane in 2012 of $35,535 and from Manulife so far in 2013 the equivalent of $38,000 per year.

[54] At trial, Ms. May and Mr. Bellow testified that although they remain in a relationship, because of a negotiated settlement with Mr. Bellow’s wife (mother of his twin children who lives in Paris, Ontario) on June 1, 2013 he had moved out of Ms. May’s condo and will no longer be sharing expenses with her.

III The Parties Evidence

[55] Having carefully watched and listened to Mr. and Mrs. May for most of four days, an over-arching theme of their lifestyle was gradually revealed. Mr. May presents as a confident, savvy, street-wise, socially adept salesman with an answer for every situation or question. On the other hand Ms. May, plays the friendly foil to his leader persona. She accommodates, adjusts, “goes along to get along” and “soldiers on” without any (or much) regard to detail or to particulars and certainly with no regard to finances.

[56] Accordingly, when asked to expand on her vague, big-picture generalizations, she mostly reverted to “I don’t know”; “I can’t remember”; “he did all of that”; and “I didn’t pay much attention to it” responses. On the essential question regarding years and years of generating undeclared cash from their businesses; how much there was; and what they did with it, Ms. May feigned ignorance to any part of “what he did with it” or “how he ran the businesses”. For example, when it was time to sign her income tax returns (which “he” prepared) she testified to not having read (nor understanding) the contents or even the “bottom line”. She says that she just signed where he told her to sign. For example, the identical 2010 income tax returns (which Mr. May prepared) show a Line 150 income of only $13,000 each. At trial Ms. May presented as if she were surprised by that amount. It was as if it was the first time she’d ever seen the document.

[57] Ms. May also pretended that a) she did not know that Mr. May was not disclosing their cash-kept-in-the-safe income (to which she contributed daily); b) she never asked any questions ever about their finances; c) she never even thought about the fact that she and her husband lived in a $600,000 house; bought and drove expensive luxury sports cars; bought a hot-tub for almost $10,000 cash; that Mr. May jetted to and from New Zealand every year; …. All on an income that matched what people on welfare live on. For me to conclude that she was only either naïve to an extreme or merely willfully blind to her part in this fraudulent lifestyle would be ignoring the obvious.

[58] When gently pressed by opposing counsel, Ms. May reverted to her familiar shield of ignorance, lack of interest in what “he” did about “all that” and her inability to understand “those kinds of things”; i.e.: she is “not a business person”. I am unpersuaded by Ms. May’s attempt to portray herself as an innocent, oblivious participant in Mr. May’s nefarious schemes. She has tried hard to avoid inclusion as a willing and active partner in the fraudulent system that they had perfected. She conceded that she did know all about “the pink invoice” system but suggested that she didn’t understand why it existed. Her evidence confirms a) she participated in using the forms; b) she knew the pink forms were for people paying cash; c) a lot of customers were looking for “a deal”; d) there was a lot of cash generated by that system but that she “didn’t have a clue” how much cash was obtained; and e) that she knew “a lot of cash came in because there was a lot of cash piling up in the safe”.

[59] I do not believe her denials. It also follows that I also do not believe her when she vaguely suggests that after spending $12,000 to renovate her condo, between February and June of 2011 that she only had “a couple” of customers that year, and no customers at all in 2012. Ms. May is a veteran of and knows the cash business-system in and out. Indeed, Mr. May testified that she started using that cash-for-services process when she started 20 Perfect Nails in England in 2001. Of course Ms. May denies it with her standard response that she “doesn’t have a business brain”. Her evidence that she used to take cash and cheques from the safe to deposit into the bank, then discarded the evidence of those bank transactions, (even before reporting back to Mr. May of the amounts), then denying any knowledge of trying to avoid a paper trail strains the bounds of credulity. I find that she was an active and fully informed participant in the joint-fraud scheme. Her denials are not worthy of belief.

[60] Likewise, I found Mr. May elusive, obfuscating and disingenuous. He has a very engaging presentation and uses words to obscure, muddle and misdirect. The financial statements he created were, he now admits, only “best (or) wild guesses” and, it would appear, prepared by him in hopes that Ms. May, (not having a “business brain”) would not examine his numbers too closely and he that could slide by.

[61] After separation, Mr. May flipped from friendly and helpful to vicious, confrontational, arrogant and mocking. It is little wonder that Ms. May was, for months, kept entirely off balance regarding whether she and Mr. May would/could continue to work together to keep the cash cow milked. One only needs to read some of his e-mails sent in April 2011, after his return from New Zealand to get a sense of his tactics. For example, in his e-mails to her of April 15, 2011 (Tab 2, Exhibit #1) and April 22, 2011 (Tab 4, Exhibit #1) his two sides and his strategy are very clearly revealed. In one message he chides her and complains of how she is treating him, how she won’t talk to him by phone but only by e-mail, and that she is definitely no longer part of the business. He even goes so far in one of his emails as to mock her lawyer’s efforts in order to try to erode her confidence in her choice of advocate. Then later in the April 22nd e-mail he is conciliatory and begs her to help him “as a friend” because he is desperate.

[62] A further example of his push-pull style of negotiation, (both while represented and when acting as his own counsel) at the same time as he was pushing to settle matters or to go to mediation, on March 6, 2012 he wrote a very provocative e-mail to Ms. May (Tab 8, Exhibit #1) taunting her that he was entertaining “a friend” in front of his $40,000 home theatre system (which she forgot to take into account when they divided their assets).

[63] I found it very informative and it confirmed for me Mr. May’s view of “truth” when Ms. May’s counsel questioned him in particular about that March 6, 2012 e-mail. At first, Mr. May denied writing it at all. Then, on further questioning, (since counsel sought to include the value of $40,000 to an asset that Mr. May crowed about keeping for himself without sharing with Ms. May), he resiled from the “I-never-sent-that e-mail” position to conceding that he did send it but that the value he bragged about for the theatre system was “a mistake” and that he had added “an extra zero” in error to what he intended to say was his $4,000 theatre system. Whatever the true value of his now dated, used home-theatre-system (which he says he imported from the United Kingdom seven years ago – except for a new projector that he recently bought in Canada) the motivation for and the viciousness of his taunting Ms. May was not lost on her, nor on me.

[64] Mr. May’s differing approaches to truth is also exhibited by how he tried to present his evidence regarding his “true” income. He prepared, served and filed four separate, sworn financial statements, all quite different from the last. Two of the statements were prepared by lawyers that he had hired. Apparently, they, like Ms. Sawatsky, readily accepted the information that he fed to them at face value and entered that information onto the forms.

[65] Mr. May also hired Chartered Accountant /Canadian Business Valuator Alison Sawatzky to prepare a report that purported to analyze his income tax returns and corporate financial income statements prepared by his bookkeeper (which income statement included a $12,000 adding error in his favour) and to offer an opinion of what “actual income” he had available to him in 2011for support calculation purposes.

[66] After studying those sworn financial statements, Ms. Sawatzky’s report and hearing her evidence at trial, it is patently obvious that Mr. May played his cards strategically and chose not to reveal to Ms. Sawatzky (or to his former counsel) either his undeclared-cash-for-services-system or the “highly illegal” (his words) scheme to import two high-end vehicles from the U.S.A.

[67] The evidence clearly established that Mr. May has also adjusted his presentations to fit the circumstances in which he placed himself from time to time. For example, when he applied for a line of credit at the Royal Bank or when he bought two new cars, partially on credit, he inflated his income to get what he wanted – the loans. When he was confronted with those income amounts that he created, he tried to attribute the inflated income numbers to someone else’s mistake or to their fraudulent motives, (as he tried to do to Mary Ernevine, the loans manager from the Royal Bank). He had told them in April 2011, (and later in December 2011, when he allowed the bank to continue to rely on the earlier application amount disclosed) that his annual income was $54,952.

[68] In August 2011, Mr. May bought a brand new 2012 car from Crosby Volkswagon. He paid $5,000 cash down. He declared his income then as $42,000 per year. Two months later, in October 2012, he bought another 2012 car from Crosby Volkswagon. He paid over $8,000 cash down then and declared his income (for financing purposes) then as $54,996 per year.

[69] Mr. May was also very elusive when asked about the various “loans” that he seems to readily obtain from friends and family. He says that his friend, Gary Evans, has loaned him various amounts at different times, (only one of which for $4,000, is secured by way of a promissory note, dated June 2012). That loan is interest free and he apparently expects me to believe that to repay all of the money Gary has loaned him, he “lets” Gary work for One2One here in Kitchener when Gary comes to visit from England. Whatever Gary “earns” by shooting weddings here, is applied against Mr. May’s various outstanding debts then owing to Gary. Ridiculous.

[70] It also appears from the evidence that when pressed to explain where large amounts of cash appear from (to allow him to buy cars with cash, for example), Mr. May quickly assures anyone who would believe him that “a friend” (or his brother) loaned him the money. There is no paper trail other than the one loan from Gary in June 2012. For all of the other money that he has had available to him, (and that he says is borrowed or loaned to him) there is no evidence that it has materialized in any way other than by way of a continuation of his tried and true system of cash-for-services. Mr. May hastens to assure the court that he no longer does business in cash and that the court should trust his word that all of the extra money has been advanced to him from friends and family. He assures the court to accept that the extra cash is all “above board, legal and honest”. Not to put too fine a point on it, but I do not believe nor do I trust what Mr. May offers. He is far too slick, smug and glib with his handy explanations to be believed regarding the continuing source of the funding of his apparent opulent lifestyle.

[71] Accordingly, I am unwilling to accept most of what Mr. May offers when it relates to his business ventures or assets, including the mysterious trip to Buffalo to buy four damaged Porsche tire rims for a nominal sum, which he says he then refurbished and sold for $4,000. Unless his evidence is corroborated by an independent source or document, I am unwilling to buy what he is selling.

IV The Expert Evidence

[72] I have already addressed the Sawatzky Valuations Report of October 25, 2012, found at Tab 12 of the Trial Record. The scope of the review that Ms. Sawatzky was mandated to perform was very narrow and she was only fed certain sanitized information in the form of documentation that was prepared by Mr. May and his bookkeeper for C.R.A. and for public consumption. She was told nothing about the “Pink Invoice System” or anything of Mr. May’s proclivity for or skill in dealing in a system of “cash in, cash out”. She was not given access to corporate or personal bank accounts, off-shore or U.S.A. bank accounts, credit card statements, sales invoices or any of Mr. May’s sworn financial statements. In other words, Mr. May gave Ms. Sawatzky only what he wanted her to have so that the result of her review would be predictable. When she started with three income tax returns that showed incomes for 2009, 2010 and 2011 of $8,000, $13,000 and a loss of $2,300, what else could she conclude other than that his “adjusted income” for support for those three years were only $1,688, $3,751 and $4,689.

[73] I do not criticize Ms. Sawatzky for her effort or her analysis, given the constraints she worked within. However, her report is of no use to the court whatsoever.

[74] On the other hand, (and at the other end of the continuum), the report of Tim Rickert of BDO, dated April 16, 2013 (Tab 11, Trial Record) is thorough, penetrating and very impressive. The scope of his review is extensive, revealing and very helpful, despite Mr. May trying to feed Mr. Rickert the same misinformation he gave Ms. Sawatzky (see paragraph 19 of the BDO report – Mr. May stated – “he did not have any unreported cash before or after the separation”.) Mr. Rickert proceeded to examine all of the data that he could get his hands on to try to understand just how Mr. May could support the lifestyle that he enjoyed on the numbers Ms. Sawatzky believed he had available to support himself, two children and a former wife. I am very impressed with Mr. Rickert’s approach to the puzzle; the methods he used; his analysis; the depth and extent of his investigation and his ultimate conclusions. (in the face of a flat denial by Mr. May of his use of an undeclared, cash-based way of life)

[75] I commend Ms. May for deciding to hire Mr. Rickert; Mr. Milczarczyk for supporting that decision and of course Mr. Rickert for performing such an important service to the court so that I can make my decision with a hard-evidence-based approach, rather than a “pick a number” approach to try to guess what money Mr. May was really bringing in. I certainly cannot rely on Mr. May’s “best-guess” approach to reality.

[76] The BDO report offers three internally consistent and confirmatory-of-each-other approaches that provide the court an ability to render a document-based decision to order support. I am less inclined to rely on the Crosby Volkswagon / Royal Bank income-disclosure approach (a) or the self-disclosure, Form 13.1, expenses claimed, approach (c) as representing the more reliable approaches, since I think that (given his proclivities), Mr. May, inflated or exaggerated his income to impress the lender to get the financing that he sought . I think that Mr. May also overstated his expenses in his financial statements so that he could justify not having to pay Ms. May any support. I find that taken together with approach (b) the three approaches together present a much more realistic analysis of Mr. May’s financial circumstances than that of Ms. Sawatzky. Together, the three approaches support a range of income from which the court can choose an amount that can be fed into DivorceMate and will produce a set of Spousal Support Advisory Guideline amounts as is required by the Ontario Court of Appeal decision in Fisher v. Fisher 2008 ONCA 11.

[77] Therefore, based upon the BDO analysis, I set Mr. May’s income for 2011 at $48,000 and for 2012 at $60,000, both amounts well within the range suggested by the combined three approaches.

[78] Without an analysis similar to the BDO Report and relying on only her uncorroborated evidence, Ms. May’s actual 2011 income is much more difficult to deduce. Even though I cannot fathom how a healthy and competent person, living in a just-built, encumbrance-free condominium, driving a high-end, encumbrance-free sports car, can apply and receive state supplied financial benefits, (especially while living common-law with someone with an income of $55,000 per year), Ms. May testified under oath that she had hardly any income that year and lived off her “savings”. What savings could these possibly be, when her total income in 2010 was $13,000?

[79] For this purpose, I do not count the apparent $11,000 that, in her July 2011 financial statement (Tab 3 of Ex. 1), she says she borrowed on her Line of Credit “to live on”. That amount is strangely coincident with and the timing of the amount of the money she says she spent renovating her basement to run her 10 Perfect Nails business that year.

[80] Unfortunately, in her case, I must indeed “choose a number” to attribute an income to Ms. May for what she could\should have earned in 2011. She was healthy, experienced, trained and motivated to work. She could have offered her talent to some other nail or photography business that year.

[81] Although Mr. May proved over and again how he manipulated, exaggerated or minimized numbers to his own benefit, I note that he sent a series of emails to Ms. May in February and March 2012, (Tab 9, Ex. 1) that “for the first time he worked out from the 27 weddings you dumped on May 10, how much income you wrote off last year (2011) – 90 per cent of $40,425 = $36,382.50.” and “that’s not going to look good for you in court! I still can’t believe you gave up that much income! 16 weddings were completely independent, no contact with me” then later “I am still sat here (sic) in disbelief that you gave that work up! The independent work was worth $32,000 to you and Abi, I am guessing you did not think of that!”

[82] Ms. May found regular, salaried full employment at Superior Propane (then later at Manulife) in 2012 and earned $35,000 for that year. That income has increased to what will be $38,000 for 2013.

[83] Mr. May asks that I impute an income of $35,000 to Ms. May for 2011 from the photography income that she rejected and from the nail business income that she probably made and did not report. In light of the evidence and my findings of credibility, I can find no cogent reason not to accept the proposed amount ($35,000) to impute to Ms. May for 2011 and I do so.

[84] Reluctantly, I do accept Ms. May’s vague denial that she earned any income from 10 Perfect Nails in 2012. She worked regular hours all year for an unrelated corporation, so I accept that she had no privately earned cash income in addition to her salary for support calculation purposes for 2012.

[85] I ask counsel to input the income amounts that I have found for both Mr. and Mrs. May and to agree on the set-off payments for spousal and child support for the years 2011, 2012 and this year retro-active and prospective, based upon the Divorce Mate computer program, mid-support number. I will then grant an order based thereon.

[86] Should there be arrears created that are owing one to the other, that amount will be set-off against (or added-to) the equalization payment created by my decision in that regard.

V Net Family Property/Equalization Payment

[87] I have made much of the credibility of the parties and those observations will bear greatly upon this aspect of the case.

[88] The onus of proof in family cases is of course based upon the civil burden, not a criminal level of proof. I am therefore to decide matters based upon a balance of which proof of a value is more probable than not. Of course the onus of proof rests squarely on the party seeking to prove the value of the asset in order that it be included in the N.F.P. Statement.

[89] I will proceed through the Net Family Property worksheet tendered by Ms. Geertsma and attached to her Memo of Law (for which I thank her) and make findings regarding only those items that were identified at trial as contentious.

a) The HiFi Cinema (Home Theatre equipment)

[90] I was not assisted by the oral evidence presented regarding the value of this asset.

[91] However, I am apparently offered two choices. It is either worth $40,000 (Mr. May’s taunting email boast) or only $4,000 (it was just an(other) mistake-I added a zero!) Audiophiles of wealth certainly do spend $40,000 on sound and theatre systems. Mr. May, except for his professed impecuniosity, is just such a person. The image that he presents to the public is one of wealth – his trips, his car, his house, his paying with cash for luxuries. He likes to play the part of the well-healed gentleman. He spent large amounts of money (albeit with his brother) on Hifi equipment in the U. K. for his cars and his home. He says he spent 12,000 pounds on just such equipment. (when his salary was barely twice that amount per year) He entered large contests to display his knowledge and skill in sound and sound equipment. He concedes he bought a new projector here in Canada for the U.K. theatre system. He does not reveal when he bought it or how much he paid. In an era when a good flat screen television itself can cost upwards of $4,000 to $5,000, it is not much of a leap to expect that he didn’t “cheap out” on his new projector, which is the heart of his whole system.

[92] In this case, had he resisted his boastful inclination and his need to mock Ms. May, I would have had absolutely no idea what the whole system is worth (nor, probably, that it even existed). He should have let it lie.

[93] Mr. May himself set the value of this asset and I accept it. I do not accept his after-the-fact, facile explanation that he just made a mistake. The Home Theatre System is valued at $40,000 and goes to his side of the ledger.

b) The Porsche Tires

[94] Again, Mr. May is caught in a trap of his own creation. He concedes that he did acquire the tire rims in the U.S.A. (for an undisclosed price) and says that he deposited the proceeds of their sale into his personal account. His position is that both the purchase and the sale happened after separation. He offers not a scintilla of proof of either of those assertions and I cannot find any such deposit into his personal account in the documentation he revealed to Mr. Riekert (and is attached to the BDO Report at Tab 11, Trial Record pages 137 and 138 “Bank Account Analysis of Peter May Deposits January 2011 to October 2012.”)

[95] As I explained previously, I have little confidence that I can rely on Mr. May’s uncorroborated evidence. Accordingly I make an adverse inference that the rims were bought pre-separation and sold post-separation as alleged by Ms. May. The $4,000 value for that asset goes on Mr. May’s side of the ledger.

c) The Division of the One2One assets at Separation

[96] I have already made reference to my conclusion regarding the values of these assets.

[97] Mr. May’s own corporate documentation sets the value of the photography assets that he retained at separation.

[98] I direct that $10,000 shall be added to Ms. May’s side of the ledger. $29,510 is to be added to Mr. May’s side.

d) The Tax Bill at Separation

[99] I accept the documentation provided (Ex. 21) that corroborates the amount of city taxes owing on the matrimonial home as a result of the re-assessment occasioned by the renovations completed pre-separation. Those taxes of $1,373 and $5,937.82 were outstanding and unpaid on separation. The total claimed and proven is $8,310.82. I rule that this is a joint debt. One-half of that total is to be added to each party’s side of the ledger.

e) The Line of Credit Interest

[100] Before separation the parties jointly owned their largest asset, the matrimonial home. They had a joint line of credit registered against that asset. As an advance to Ms. May, (so she could fund a new condo), Mr. May agreed to liquidate her part of her half interest in the home that was not yet pledged (they already had drawn down on that line of credit). They did not agree on who would absorb the cost of that advance but they must have known that the money freed-up was not “free” or without some cost to someone.

[101] By this action, Ms. May was able to convert her interest in the matrimonial home into another encumbrance-free asset, her new condo. It seems unfair and unreasonable that by agreeing to allow her obtain, then re-invest her half of the home, Mr. May should be required to absorb the costs directly associated with the freedom that Ms. May enjoyed by the advance to her of almost one quarter of a million dollars.

[102] Therefore, I direct that the entire interest cost attracted by the increased Line of Credit over the pre-advance balance (that already existed, namely $124,555.79 (Ex. 22)) for which they were jointly liable (until the Gordon, J. order) be added to Ms. May’s side of the ledger. Described in another way, the interest cost attracted by the increase of $262,000 over that valuation date Line of Credit debt of $124,555.79 for ten months between February 9, 2011 and November 14, 2011 (the date of the Gordon, J. order) is Ms. May’s responsibility and is to be added to her side of the Net Family Property ledger.

f) Date of Marriage Assets

i) The Law

[103] Mr. Milczarczyk relies on Belgiorgio v Belgiorgio, [2000] W.D.F.L. 746 (SCJ) confirmed at [2002] W.D.F.L. 29 (OCA) and Bilas v Bilas (1994), R.F.L. (4th) 354 (O.C.J. Gen. Div.), to support the proposition that if Mr. May did not provide an actual document, bill of sale, deed, cheque or a written evaluation report to prove the value of an asset at the date of marriage, no value at all should be allowed for the asset, even though it might have existed at that time.

[104] He referred me to paragraphs eight to twelve of the Belgiorgio case to support his argument:

“…However, s. 4(3) of the Family Law Act clearly places the burden of proving such a deduction, as well as its value, on the claiming party.

Based on the corroborating testimony of Mrs. Belgiorgio, I believe that Mr. Beliogioro was involved in a motor vehicle accident prior to the marriage, and that he subsequently received some form of settlement from a claim arising from that accident. However, Mr. Beliorgioro has failed to substantiate his assertions as to the value of the settlement. Mr. Belgiorgio was well aware that he should provide such information to support his claim, as evidenced by a statement contained in an affidavit sworn March of 1999. In that affidavit, Mr. Belgiorgio swore that he was attempting to obtain proof of the value of the insurance settlement. But at trial, Mr. Belgiorgio offered no evidence to substantiate his claim. He could not even provide documents to substantiate his efforts to obtain details of the settlement.

In Bilas v Bilas (1994), R.F.L. (4th) 354 (O.C.J. Gen. Div.), Klowak J. was presented with circumstances similar to those before this court: the husband claimed as a deduction the value of a cottage he had brought into the marriage, but failed to provide substantive evidence with respect to its value. It was held, at pp. 363-4:

I have no doubt that it would have been appropriate, if there was a cottage at the time of the marriage and its value had somehow been shown to me, to deduct it as property owned on the date of marriage. I look at the husband’s neglect or refusal to supply supporting documentation for his financial contentions on both this issue and several other issues as consistent with him not wanting to disclose his true financial picture and I am prepared to draw inferences negative to him in the result.

The examination for discovery took place on October 21, 1992, and I am satisfied that the husband was well aware from that time on that should he be claiming the value of the cottage as an exemption, then he had to provide information with respect to it. He did not do so and consequently the wife is in no position to e able to test him on the evidence he now gives. In the result, I will attribute no value whatever to the husband with respect to a cottage.

Similar action was taken by Sheppard J. in McDonald v McDonald (1994), 1994 CanLII 7435 (ON SC), 5 R.F.L. (4th) 215 (Ont. Gen. Div.), affirmed (1997), 1997 CanLII 14551 (ON CA), 33 R.F.L. (4th) 425 (Ont. C.A.).

Mr. Belgiorgio clearly understood the importance of obtaining documentary evidence to support the claimed value of his accident settlement. He did not obtain documentary evidence to substantiate the settlement value or even his efforts to obtain such documents. I therefore attribute no value to the accident settlement.” (my emphasis)

[105] Like Mr. Belgiorgio, Mr. May (or his counsel) understood the importance of obtaining documentary evidence to support the claimed values of the various assets that he sought to be included as Date of Marriage deductions (his boat, car, watch, house, pension, HiFi equipment and furniture). He says he flew to England just for that purpose. Whether I believe he did so or only included those tasks while he was there working as a photographer for his friend Gary (or merely on vacation) is irrelevant to the reality that he invested time and energy to successfully get some/all the documentation available and to arrange for independent witnesses to testify at trial to corroborate his claims. (e.g. Colin Perryman, Cherylyn Vikins and Stephen May.)

[106] Even though, like Beaulieu, J. in Belgiorgio, I found Mr. May’s testimony unreliable and, without corroboration, untrustworthy, unlike Mr. Belgiorgio Mr. May has actually produced documentation and some independent evidence to substantiate the values of his date-of-marriage assets that he seeks to include:

“Mr. Belgiorgio has not produced any documentary evidence indicating the deposit of inheritance funds into the joint bank account, and their subsequent application as payment for the goods he seeks to exclude. His evidence regarding the funds was inconsistent, evasive and argumentative. Mrs. Belgiorgio demonstrated a clear memory of events, including details Mr. Belgiorgio claimed not to remember, such as the people who were named as the beneficiaries under his father’s will. Mr. Belgiorgio seeks to satisfy the onus placed upon him by s. 4(3) of the Family Law Act by suggesting that the court accept his oral testimony with respect to the traceability of the inheritance funds. As I do not find Mr. Belgiorgio to be a credible and reliable witness with respect to this issue, I find that the onus under s. 4(3) has not been discharged.” (my emphasis)

[107] The facts of this case are quite different from the Belgiorgio and Bilas cases in that Mr. May has actually proffered to the court the best, now-existing evidence (20 years later) that he can obtain (unlike Mr. Bilas and the value of his cottage). I can therefore distinguish both of those cases from this case.

[108] On the other hand, Ms. Geertsma, relies upon the more recent decision of Nolan J. in Jacobs v Jacobs 2011 ONSC 2699 as well as White J.’s earlier decision in Kozuch v Kozuch (1992), 35 ACWS (3rd) 583 (O.C.J. Gen. Div.)

[109] I accept Nolan, J.’s analysis of the onus of proof and her review of the case law contained in paras. 36-41 inclusive in Jacobs, supra; especially her acceptance of Professor Rollie Thompson’s thesis at para. [40] that:

… it is in family law that many of the hardest issues of evidence are raised and that judges must be dedicated to the demanding task of balancing the “need to apply the rules of evidence with the distinctive purposes of modern family law.” Thompson distinguished evidence issues in family law practice between financial matters (property and support) and custody and access issues as well as child protection. He said that in financial matters, family law evidentiary rules are closest to “ordinary” civil litigation rules, …

[41] … , it would not be cost-effective to require each party to obtain expert appraisals for all items. At the same time, when one party has an onus to establish a deduction, the obligation on that party to obtain and present the best evidence and for the court to weigh the evidence using the ordinary rules of evidence is a higher obligation. In considering the evidence presented by that party, the court must take into account the adequacy of the evidence, and what steps were taken by the party to obtain all available documentary or oral evidence to support his or her position and whether the onus has been met on the balance of probabilities. (my emphasis)

[110] Nolan, J. also considered the case of Traversy v Glover (2006), 30 R.F.L. (6th) (Ont. S.C.J.) when addressing the Onus of Proof issue:

[43] The nature of the evidence required when one party is claiming a deduction or an exclusion is significant. The onus of proof is on the person claiming the deduction or the exclusion as set out in section 4(3) of the Family Law Act, RSO 1990, c F-3. The rules regarding the evidence are further elaborated by often-cited case law. In Traversy v Glover (2006), 30 R.F.L. (6th) (Ont. S.C.J.) the court held that the onus of proof in a marriage deduction request includes “proof that the property existed at the date of marriage and of its value. The court may estimate value, if ownership is clearly established, and only limited evidence of value is possible” [emphasis added] While attempts to obtain proof of the value may be considered by the court, the court in Traversy seemed to require proof of such attempts to get the necessary evidence rather that just relying on the claimant’s testimony and memory. (my additional emphasis)

[111] I find that Mr. May has (for the most part) discharged the Traversy-established level of effort required to find and present any evidence that still existed after two decades in order to allow me to set values for his date-of-marriage assets. (despite my findings against him regarding his uncorroborated testimony).

ii) 35 Fountains Drive, Bristol, U.K.

[112] Based upon all of the documentary evidence provided by Mr. May, (see Ex. 1, Tab 25, Ex 13 and 29) I accept that he purchased this home in May 1989 for 92,500 pounds with a mortgage registered against it of 62,500 pounds. As at the date of marriage August 13, 1994, the value of the house had decreased, thus reducing the value of his 30,000 pound down payment to 23,875 pounds, which with the exchange rate at that time being 2.12 (as agreed), his equity in the home was $50,615.00. I allow that value as a Date of Marriage Deduction.

[113] I accept that the amount set out regarding this asset, Ex. 25 (another email from Mr. May to Mr. Milczarczyk) is another example of Mr. May “winging it” and playing fast and loose with his numbers. I accept the values set out in the documentation presented, not Mr. May’s memory or his “best guess”. His best guesses have proven entirely unreliable.

iii) Furniture at 35 Fountains Drive

[114] I accept the pictures (Ex. 14) that, at marriage Mr. May had some furniture left that Ms. Vokins did not take. I accept that there was a dining room set, some living room chairs, a couch, a T.V., some side tables, some curtains, and a bedroom set.

[115] I was given no evaluation report of these items and it is well known that used furniture is notoriously invaluable.

[116] I reject the $10,000 value suggested and allow only $2,500 for the value of the totality of the furniture.

iv) The Picton Royal Ski boat, motor and trailer

[117] I accept the existence of and value sought to be allowed for this asset. (see Ex 19)

[118] Mr. May’s evidence is corroborated by his brother regarding the sale date (late September or October 1994).

[119] Both brothers netted 5,000 pounds for their one-half interest in that asset. At the agreed exchange rate of 2.12, I therefore allow a value of $10,600.00 for that asset.

v) The GiS Tag Heuer Watch

[120] Ex. 20 proves the purchase price of this asset, bought on September 22, 1993 as 835 pounds. I find that it would not have devalued by the date of marriage and, at the agreed exchange rate. I therefore allow a value for that asset of $1,770.20

vi) Rover Si Motor vehicle

[121] Ms. May says she bought it and it was hers. Mr. May says he bought it, it was his (but she used it.) Mr. Stephen May remembers the vehicle but cannot say when it was bought, to whom he sold it, nor for what amount.

[122] There’s no independent documentation provided and the oral testimony is both contradictory and unreliable.

[123] No value is allowed for this asset.

vii) Car HiFi equipment

[124] I accept the documentary evidence of Ex. 18, which corroborates both Mr. May and Stephen May’s oral evidence.

[125] I therefore accept the value claimed for this equipment and with exchange, allow $13,780.00 for this asset.

viii) Pension

[126] I accept Mr. Perryman’s evidence (which I found very compelling and persuasive) together with the documentation provided in Ex.’s 5 and 6, which when considered together establish the value of this asset at marriage at 7000 pounds. This value, after exchange, converts to a Canadian dollar amount of $14,840.00, which amount I allow.

ix) The white Cavalier GSi

[127] Much contradictory evidence was heard regarding this asset.

[128] Since Ex. 18 corroborates the timing of its sale (but not the amount) and since Stephen May also confirms that a Cavalier was sold “after the car HiFi competition finals in September 1994” (but he can’t remember exactly when), I accept that at the date of marriage, Mr. May owned a white Cavalier GSi.

[129] Ex. 16 is a series of pictures of various cars owned by Mr. May but there are no dates of purchase or sale. Stephen May recalls that the white Cavalier was replaced by a “purple” (Mr. May called it “burgundy”) Cavalier GSi. The third and fourth pictures show both Cavaliers. Stephen May recalls that Mr. May came in second with the white Cavalier and third with the purple Cavalier in two of the car HiFi competitions he entered. The fourth picture shows the purple Cavalier, actually on display at the competition at Wembly Stadium.

[130] Mr. May of course seeks inclusion of the value of the white Cavalier in his Date of Marriage assets. Unfortunately, Ex. 18 does not identify which Cavalier was sold in September 1994 or for what amount. However, Ex. 15 independently corroborates a best estimate of the value of the 1991 Cavalier 2000 GSi (dark metallic red-or burgundy) that Mr. May bought used in early 1992. As Mr. Wilshire of Vauxhall in Bristol, U.K. explains in the Exhibit:

“The price new for this car in the early 90’s would have been around £18,000 it was “top of the range” and one of the most expensive cars Vauxhall made at this time. We obviously do not have any sale documents this far back, but this car being less than one year old, would have sold to Mr. May for about £15,000 approx.”

I accept the value at “about £15,000 approx.” in early 1992 when he bought it. The colour of the car is irrelevant.

[131] Over the two or so years that he owned the car until (August 1994), the car would have depreciated in value, even though Mr. May had added 7,000 pounds of HiFi equipment to it.

[132] Accordingly, I allow only 10,000 pounds for the marriage-date-value for the Cavalier GSi, which, after the exchange, converts to a Canadian value of $21,200.

x) NFP/Equalization calculation

[133] Having now set the values for the contested assets, I ask counsel to confer and agree upon a final equalization payment created by/from the findings that I have now made, which payment is ordered to be paid forthwith, subject to the retroactive Child and Spousal Support amounts that are to be set off against or added to that equalization payment created.

[134] Should counsel be unable to agree upon the equalization payment based upon these findings, I will accept their respective written submissions on this issue within 30 days of the release of these Reasons for Judgment.

VI Divorce

[135] I grant judgment for Divorce based upon separation for greater that one year. An order shall issue in the terms of the Marriage Certificate filed as Ex. 9.

VII Spousal and Child Support

[136] Having set the incomes for Mr. and Mrs. May for 2011, 2012 and 2013, counsel are now able to calculate the amounts payable to each other for each of these obligations.

[137] Both Abi and Lewis are entitled to child support per S. 15.1 of the Divorce Act until Abi turned 18 and was no longer full time in school. Lewis, of course, continues to be entitled.

[138] Ms. May is also entitled to spousal support not on a compensatory basis but, at least for 2011, on the basis of need, pursuant to the objectives of support set out in S. 15.2 (6) of the Divorce Act.

[139] Of course, their respective incomes found by me will establish Mr. May’s ability to pay spousal support on the “with child” formula as revealed by the Divorce-Mate computer program.

[140] If counsel cannot agree on those support numbers, both child and spousal, based upon the mid-range spousal support amount, I require them to offer me their written submission on this issue, within 30 days of the release of these Reasons for Judgment. I will then set the amounts owing, both retroactively and prospectively.

[141] Otherwise, on order shall issue setting out those child and spousal support amounts.

[142] The retroactive aspect of the support orders shall be capitalized and set off against (or added to) the equalization payment determined in the property aspect of this judgment.

[143] I do not expect that there will be any significant spousal support payable by Mr. May to Ms. May from September 2013 onward, as long as Abi continues in post-secondary education and lives “at home” with Mr. May. Because of that circumstance, Ms. May will owe guideline support for two children to Mr. May from then, together with her pro-rata share of Abi’s net S. 7 directly-attributable-education expenses.

[144] Because she failed to produce any documentary proof of the financial “arrangement” between her and Abi (or for the car that she says that she bought – I thought the used car that Mr. May bought from Crosby VW was for Abi) I have not allowed any credit to Ms. May for any direct S. 7, additional-to-guideline-support paid by her to date.

[145] If counsel wish, after/if Ms. May (can) produce(s) proof of such direct payment(s), they and the parties may agree to such an adjustment/credit. However, I do not invite fresh/new/additional evidence from Ms. May on this issue. As in Belgiorgio, Ms. May knew (or ought to have known) that she had to produce documentary proof that she actually paid these amounts. She chose not to do so.

[146] Mr. Milczarczyk suggested that spousal support continue indefinitely but with a review date to be included in my final order. Given that their marriage would be considered a long one, (17 years) I accede to his request that the term of the spousal support order be indefinite However, I decline to set a review date for spousal support since by my reading of Fisher v Fisher [2008] W.D.F.L. 1097 (O.C.A.) and Mr. Epstein’s Annotation thereto, for me to pick a date by which time I expect Ms. May to have achieved self-sufficiency, (and thereby terminate support), would “shift the burden of establishing material change, justifying ongoing support to the recipient spouse.” (page 7 of Annotation)

[147] I have decided to leave it available to either spouse to re-institute proceedings to vary this spousal support order, based upon a perceived material change in circumstances; that is to say, based upon Ms. May’s need or Mr. May’s ability to pay. (after the children, or one of them becomes financially independent, or either parent has re-partnered or experienced a significant increase or decrease in his/her income.)

X Interim Orders

[148] On consent and at the request of both counsel, both interim orders are rescinded nunc pro tunc. Child and spousal support shall flow from the date of separation and upon the calculations that are based upon the incomes set by this judgment.

[149] Any outstanding arrears of support based upon the above interim orders are cancelled in their entirety. Any money already seized or obtained may be applied against an order resulting from this judgment.

XI Costs

[150] I will accept brief written submissions from counsel together with a costs outline, docket and bills rendered to clients and any Rule 18 Offers of Settlement exchanged.

[151] Ms, Geertsma shall have 30 days to file her submissions and Mr. Miczarczyk shall have 10 days thereafter to do likewise.

[152] Ms. Geertsma may reply to Mr. Milczarczyk’ within 5 days thereafter.

[153] I thank counsel for their efforts on behalf of their clients and for their assistance to the court.

G.A. Campbell J.

Released: July 18, 2013