Background

[1] The parties were married in June 1985. They separated in January 2005.

[2] At the time of their marriage, the parties were each commencing their chosen careers. Throughout most of the marriage, the applicant worked as a placement consultant and recruiter at various personnel placement firms and on her own. She has continued to work post-separation. The respondent had a career as a corporate and securities lawyer, starting at Goodman & Carr, then as a partner at two other large Toronto corporate/commercial firms. His practice, however, declined over the period from 2001 to 2004, such that at the end of 2004, he was let go from his firm because he was “without a book of business.” The respondent was unemployed at the time of separation. He has since built up a substantial practice as a family law lawyer.

[3] There are two children of the marriage, Jaclyn (21) and Kyle (18). Both children are now adults, attending university out of town. The parties settled custody and access matters in September 2008 on the basis of equal shared parenting. Prior to that, interim access arrangements from March 2005 to September 2008 resulted in the respondent having the children for at least 40 per cent of the time.

Issues

[4] The issues in this application are:

(1) validity and enforceability of marriage contract;

(2) ownership of matrimonial home;

(3) equalization and excluded property;

(4) support:

a) income;

b) child support;

c) s. 7 expenses; and

d) spousal support;

(5) set-off;

(6) vesting order;

(7) apportionment of assessment fees and other costs; and

(8) third party claim against Gary Spira.

Validity and Enforceability of Marriage Contract

[5] A great deal of time and money has been used up in this litigation fighting over the validity and enforceability of the parties’ marriage contract. This is because the marriage contract excludes from the parties’ net family property the value of any assets given to them by way of gift or inheritance through inter vivos or testamentary instrument. The respondent is one of the beneficiaries of an estate plan containing substantial assets.

[6] The respondent’s father, Irving Ludmer, is a successful businessman in Montréal, Québec. Irving Ludmer has three children; the respondent is the oldest of the three.

[7] For estate planning purposes, Irving Ludmer created the Ludmer Children Trust (LCT) in 1971. The first trustee was his then wife, Mona Ludmer. The beneficiaries were his three children. The respondent was 10 or 11 years old at the time.

[8] Paragraph 7 of the trust deed conferred on the trustees the “sole, absolute and uncontrolled discretion” to make distributions from the body of the trust.

[9] Paragraph 19 of the trust deed provides that all trust property as well as any property acquired in replacement or derived therefrom, “shall in no event and under no circumstances fall into or form part of any community of property which may at any time subsist between any Beneficiary and his or her consort but on the contrary shall remain the private and separate property of the Beneficiary hereunder free from the control of his or her consort and shall be paid to the Beneficiary upon his or her own separate receipt.”

[10] Irving Ludmer testified during the trial to his intention, in creating the LCT, that the fruits of the trust should be for his children, not for any spouses. It was up to the children, he said, “if they wanted to share the assets” after any assets eventually devolved to them.

[11] As a result of tax and trust law constraints, the form of the estate plan and control of the trust assets changed over time. In a process which began in 1992 and concluded in 2004, Irving Ludmer ultimately caused the LCT to transfer the trust assets equally to three corporations, one for each of his children. The voting shares of the corporations were retained by Irving Ludmer, such that he controlled the corporations. The common shares, representing participation in the equity of each corporation, were transferred to the children. The respondent, accordingly, now holds common shares in 3488055 Canada Inc. (which owns 1/3 of the estate plan’s assets), while Irving Ludmer retains voting control.

[12] The administration of the trust, its restructuring, investments, tax returns, financial statements and regulatory filings etc., are and always have been under the control of Irving Ludmer, with the help of his legal, financial and accounting advisors.

[13] The evidence of Irving Ludmer was that, from the outset of the creation of the trust in 1971 until the present, he and only he has controlled the estate plan and the estate plan’s assets. The children, he said, never had any decision-making power or any rights to exercise any powers in relation to any aspect of the estate plan. For example, the respondent (like his siblings and “their” corporations) has never been an officer, director or employee of 3488 and he has received no salary or dividends from 3488. Whenever he was required to sign shareholders’ resolutions, he was presented only with the signature page. He was generally unaware, until this litigation, of the activities and financial position of 3488. This evidence was confirmed by the respondent and was not challenged at trial.

[14] Irving Ludmer’s sole and total control of the estate plan is consistent with findings of the Québec Court of Appeal during proceedings taken to enforce the interprovincial summons to Irving Ludmer issued by Conway J. of the Ontario Superior Court of Justice in 2008. In Ludmer c. Ludmer, 2009 QCCA 1414, [2009] Q.J. No. 7381, the Québec Court of Appeal held as follows:

[6] Once constituted, the Trust subscribed to the common shares of a corporation in which Irving Ludmer had 50% of the voting control through preferred shares in his name. The object of the exercise, known as an estate freeze, is to transfer future growth of the company to future generations, with the resulting growth ultimately being taxed in the hands of the beneficiaries. It is not disputed that since its initiation, Irving Ludmer has exercised control and management over the Trust. Indeed, it was precisely because Brian Ludmer was unable to furnish information in the Ontario proceedings that he applied to the Superior Court under section 9 of the Act.

[17] Brian Ludmer, however, is not an officer, director or employee of 3488, and, consistent with the foregoing, he receives no salary or dividends from 3488. Whenever he is required to sign shareholders' resolutions, he is presented only with the signature page. He has thus always been unaware of the activities and financial position of 3488. All of the foregoing is also true in respect of the companies Irving Ludmer established for Brian Ludmer’s brother and sister.

[78] It is also manifest that Irving Ludmer has consistently acted to preserve the confidentiality of the value of the assets that comprised the Trust since 1971 and thereafter, witness the fact that Brian Ludmer is only given the signature page to sign with respect to any corporate resolutions of 3488 that might require his signature. The same is true of Brian Ludmer's siblings with respect to the companies Irving Ludmer cause to create for them with a similar purpose to that of 3488.

[15] Irving Ludmer testified that the children did not even know about the estate plan for a long period of time. It was only in the context of the respondent’s marriage in 1985 that Irving Ludmer disclosed any details about the respondent’s contingent interest in the estate plan. Irving Ludmer kept the details of his estate plan a secret, he said, because he had seen so many children of wealthy friends lose all incentive to succeed on their own because of their expectations of inheritance.

[16] About a year after the respondent and the applicant were married, Irving Ludmer advised his son that the estate plan contained “considerable value” and recommended that his son enter into a marriage contract to exclude the respondent’s interest in the LCT from the new “community of property” regime in Ontario. Irving Ludmer left the preparation of the marriage contract itself to the respondent but, at his son’s lawyers’ request, directed his accountants to prepare a valuation of the respondent’s contingent interest in the LCT for purposes of disclosure to the applicant. That valuation is attached to the marriage contract as Schedule A.

[17] The marriage contract of June 13, 1986, between the applicant and the respondent, was prepared by Goodman & Carr, the firm where the respondent was employed. Section 4 of the marriage contract provides that, in the event the parties become separated with no reasonable prospect of resumption of cohabitation, the value of certain assets are to be excluded from the calculation of net family property. The value of the identified assets, it says, shall not “be included in the net family property of the spouse who is the owner thereof.” Those assets, “shall remain the separate property of the Spouse who is the owner thereof and shall belong exclusively to that Spouse.”

[18] The excluded assets are:

(i) all assets owned by either of the Spouses at the Date of Marriage or acquired by one of them after such date from his or her parents or siblings by way of inheritance, gift, purchase or acquisition in any other manner (direct or indirect, including from a corporation, partnership or other entity controlled or owned by the parents or siblings of such Spouse), including, without limiting the generality of the foregoing, any assets which either of the Spouses may receive as a consequence of the distribution of such assets from any inter vivos or testamentary trust;

(ii) any assets acquired by a Spouse as a result of the sale or exchange of any of the assets referred to in Subparagraph (i), above, of this paragraph 4(a), including, without limiting the generality of the foregoing, all proceeds of sale of such assets or substituted assets and any assets which are acquired with any part of such proceeds; and

(iii) all income, gains and accretions derived from any assets referred to in Subparagraphs (i), and (ii), above, whether such assets are acquired before or after marriage

[19] The marriage contract goes on to provide in paragraphs 4(b) and (c) that no claims shall be made by either of the spouses for an interest of any kind in the identified assets belonging to the other spouse and that the parties each release all rights to an interest in the identified assets belonging to the other spouse.

[20] Paragraph 5 of the marriage contract confirms that the agreement does not affect any rights that either of the spouses may have to property other than the excluded property nor does the agreement affect any rights that either of the spouses may have to support or maintenance under the Family Law Act or the Divorce Act.

[21] Under paragraph 6A, the respondent agreed to maintain a policy of life insurance for which the applicant was the designated beneficiary.

[22] Paragraph 12 of the marriage contract confirms that each party received independent legal representation, understood his or her rights and obligations under the agreement and signed the agreement voluntarily. The agreement was signed by the applicant on June 13, 1986.

[23] Attached to the marriage contract is the “certificate and affidavit of solicitor” of Murray E. Lightman. In that certificate/affidavit, Mr. Lightman deposes that, on June 13, 1986, he was the solicitor for Lisa Ludmer and a subscribing witness to her signature, that he believes that Lisa Ludmer is the party who signed the instrument and that:

I have advised the said Lisa Ludmer with respect to the said marriage contract, and believe that she is fully aware of the nature and effect of the marriage contract upon and in light of her present and future circumstances, and is signing it voluntarily.

The Basis of the Challenge

[24] In her Amended Application and Reply, the applicant advanced essentially three grounds for setting aside the marriage contract:

duress;
unawareness of the nature and consequences of signing; and,
material non-disclosure of respondent’s net worth.

[25] The applicant testified in her examination in chief that the issue of a marriage contract was first raised with her during a dinner with the respondent and her in-laws at a restaurant in north Toronto called Bentleys, only two days before she signed it. She said that all three of the Ludmers made it clear to her that there would be “ramifications” if she did not sign. She testified that she felt she had no choice, that she wanted to “make peace” with the family and that she was told that if she did not sign, it would “cause problems.” Later in her testimony, in an effort to be more precise, the applicant said that it was her mother-in-law, Mona Ludmer, who said “I signed one, you should sign one too” and that “if you don’t sign, Irving will be angry.”

[26] In cross-examination, the applicant admitted that the respondent urged her to go to a lawyer of her own choice for independent legal advice. Her lawyer, Murray Lightman, made it clear to her that she should not sign the marriage contract. She testified that Mr. Lightman read the contract to her but that she was not paying attention; “I wanted to sign it and get back to my office,” she said. She told him, “I will never get divorced.”

[27] The applicant’s confirmation, in the marriage contract itself, that she had received independent legal advice, understood the agreement and signed it voluntarily, was put to her in cross-examination. She agreed that she had given that confirmation. She added, “I had to sign it. I needed to sign it. I wanted to sign it.”

[28] The applicant also agreed that Mr. Lightman himself had certified that she had signed the marriage contract, understood what it meant and had done so voluntarily. She conceded in cross-examination that she never challenged Mr. Lightman on the accuracy of his certificate and had, in fact, returned to him for legal advice on two subsequent occasions.

[29] The applicant agreed that she received a written confirmation from Mr. Lightman on June 13, 1986, in which Mr. Lightman advised her that it was not in her best interests to sign the marriage contract. Mr. Lightman explained in that written correspondence the nature and effect of the contract and what the applicant was giving up. In the same correspondence, he also said, “you have nonetheless instructed us that in the interests of maintaining harmonious family relationships, you are content to sign the agreement with the only addition being that your husband is to maintain an insurance policy in an amount not less than $100,000 and to designate yourself as beneficiary.” The applicant signed and returned an acknowledgment that the contents of Mr. Lightman’s letter were true, that she had been advised that the marriage contract was not in her best interests and that she nonetheless wished to sign it and was doing so “freely and voluntarily.”

[30] Mr. Lightman testified at the trial. Mr. Lightman’s evidence was essentially confirmatory of the facts outlined above. He produced the original of his file. His file contained a pink telephone slip dated “May 28” to “Murray” from “Lisa Ludmer” which said “Coming in Friday, June 13 @ 12:00.” Mr. Lightman confirmed that no request was made for additional financial disclosure regarding the respondent’s assets prior to the applicant's execution of the marriage contract. He also confirmed that the provision for life insurance to protect the applicant was introduced into the marriage contract on his recommendation and agreed to by the respondent.

[31] In cross-examination, Mr. Lightman confirmed his impression from the applicant that there was familial pressure on her to sign. He said, “I recall you were under a great deal of pressure. I also recall that you decided to sign.”

[32] The respondent’s evidence was that, because the marriage contract was his father’s idea, he was essentially indifferent to whether the applicant signed it or not. He said that he was young and in love and that if his wife had refused to sign, they would simply have carried on and his father “would do what he would do.” He denied putting any pressure on the applicant to sign.

[33] The respondent also testified that the applicant, at her counsel’s request, asked for the addition of the insurance coverage proviso in the marriage contract. He indicated that he had been agreeable to this addition and that it was, on this basis, incorporated into the marriage contract.

[34] The respondent denied that there had ever been a meeting involving him and his wife and his parents at Bentleys to discuss, or pressure the applicant into signing, the marriage contract.

[35] Irving Ludmer also had no recollection of any meeting or dinner at Bentleys and testified that he had never discussed the marriage contract with the applicant at any time.

[36] On August 28, 1987, about a year after the applicant signed, the parties executed an amendment to the marriage contract. The purpose of this amendment was to delete the obligation on the respondent to maintain a policy of insurance with the applicant as beneficiary. This agreement, the evidence was, came about because the respondent had been hired at Goodman & Carr and, as part of the benefits package, he received life insurance paid for by the firm.

[37] This amending agreement too was accompanied by representations from the parties that they had independent legal representation, understood their rights and obligations and were signing the agreement voluntarily. In addition, Mr. Lightman was again retained by the applicant and provided a “certificate and affidavit of solicitor” confirming that the applicant was “fully aware of the nature and effect of the marriage contract upon and in light of her present and future circumstances, and is signing it voluntarily.”

[38] As noted above, the applicant alleges that the respondent failed to make material disclosure of the value of his contingent interest in assets held by his father on his behalf as of the date of the marriage contract.

[39] In order to respond to the allegation of material non-disclosure, the respondent retained business valuators Richard Wise and Jean-Phillipe Langevin, now of MNP LLP, to determine the value of the respondent’s interest in the assets held by Irving Ludmer on the children’s behalf at the date of marriage and when the first marriage contract was signed. MNP’s valuation report was filed as Ex. 69. Mr. Langevin testified at the trial. No responding evidence was tendered. Mr. Langevin was not cross-examined.

[40] In its report, adopted as true and accurate by Mr. Langevin, MNP acknowledges Irving Ludmer’s position that the fair market value of the respondent’s unvested interest in the LCT, and now in 3488, is nominal because the respondent’s interest is entirely subject to Irving Ludmer’s control and discretion. Nevertheless, MNP’s valuation analysis was performed as if one third of the assets held by Irving Ludmer on his childrens’ behalf would become the respondent’s property at some point in the future, even though this may never be the case.

[41] The MNP report is comprehensive and detailed. It carefully sets out the scope of work, the assumptions used, the documents reviewed, the methodological approaches used, the basis for any adjustments and the reasons for its conclusions. It notes that MNP’s conclusions about the value of the respondent’s interest in the trust assets in 1985 and 1986 were based on different valuation methods than those used by Irving Ludmer’s accountants when preparing Schedule A to the marriage contract.

[42] MNP’s conclusions on the respective values of the respondent’s interest in the trust assets in 1985 and 1986 are similar to, but lower than, the value ascribed to the respondent’s interest disclosed to the applicant in Schedule A to the marriage contract when the document was signed in June, 1986.

Analysis

[43] The Family Law Act allows parties who are married or intend to be married to enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, including ownership in or division of property. Such a contract must be made in writing, signed by the parties and witnessed.

[44] A court may set aside the domestic contract, or a provision in it:

(a) if a party fails to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature and consequences of the domestic contract; or

[45] Disclosure at the time the contract is signed is important, although not every breach of disclosure will result in setting aside the agreement.

[46] Formal disclosure by way of sworn financial statement prior to executing an agreement is not necessary to meet the obligation to disclose. It is sufficient that each party has a general awareness of the assets of the other party. Parties are expected to use due diligence in ascertaining the facts underlying their agreements; a party cannot fail to ask follow-up questions and then rely upon an asserted lack of disclosure.

[47] Disclosure is, of course, tied to a party’s ability to understand the nature and consequences of the domestic contract. This is because, without financial disclosure, a party or his or her lawyer is deprived of the opportunity to consult/advise and to make a meaningful decision about whether or not to enter into the agreement.

[48] In the present case, the marriage contract meets the technical requirements of a domestic contract under the FLA. In addition, Schedule A to the marriage contract discloses that the respondent is the beneficiary of certain identified assets held by Irving Ludmer on the respondent’s behalf. Schedule A also discloses the value, as at December 31, 1985, of those assets.

[49] Further, the evidence makes it clear that the applicant had independent legal advice. She booked her appointment with Mr. Lightman two weeks before signing the agreement. This is not consistent with the applicant’s suggestion that she only had two days to think about it. It is also not consistent with her recollection of a meeting at Bentleys. I do not accept the applicant’s evidence on either of these two points.

[50] More importantly, documents signed by the applicant at the time, as well as Mr. Lightman’s written and viva voce evidence, constitute unequivocal proof of the fact that the applicant understood the nature and effect of the marriage contract and her rights and obligations under the marriage contract and that she signed the marriage contract voluntarily.

[51] Further, although it was open to the applicant to explore the nature of the assets disclosed and the values ascribed to them, the applicant chose not to do so and accepted Schedule A at face value, without question or complaint.

[52] There is, in any event, simply no evidence to support the allegation of material non-disclosure. Not only is there no evidence to support this allegation from the applicant, there is positive evidence from the respondent, in the form of MNP’s unchallenged valuation report and testimony, that the assets and values disclosed in Schedule A were more or less accurate and, if anything, marginally overstated the value of the respondent’s contingent interest at the time.

[53] Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

[54] In this case, the parties were already married. This is, therefore, unlike the case where a marriage contract is sprung on one spouse at the 11th hour just before marriage.

[55] It is clear that the applicant had time to consider the agreement. She sought and received independent legal advice. Her lawyer, Mr. Lightman, swore his oath to the fact that, at the time, the applicant understood the nature and effect of the agreement and signed it voluntarily.

[56] The applicant’s evidence is, as well, ambivalent. She said, on more than one occasion during her testimony, and also to Mr. Lightman and, later, to Dr. Sutton, that she signed the marriage contract because she “never expected to be divorced.”

[57] Her evidence, even accepting it at its highest, is that she thought Irving Ludmer would have been “annoyed” and that there would be unspecified “ramifications” if she refused to sign; she felt familial pressure to sign.

[58] In my opinion, this evidence, even if accepted without question (which I cannot), is incapable of meeting the serious threshold required to set aside an agreement on account of alleged duress. At its highest, this evidence indicates that there was some stress associated with the issue of the marriage contract and that the applicant felt “pressure” to sign. I find that the applicant’s will was not overborne or coerced. There was no improper threat or intimidation. She may not have thought it mattered at the time, but she understood the nature and effect of the marriage contract and signed it voluntarily.

[59] Finally, I do not think it can be said that the marriage contract is per se unconscionable or unreasonable (that is, substantively unfair). All of the applicant’s rights to other assets acquired during the marriage and to spousal and child support were preserved. Indeed, the FLA s. 4(2) excludes from the definition of property assets “acquired” by gift or inheritance from a third person after the date of marriage.

[60] The contract was entered into at the outset of promising careers for both parties. The fact that the respondent’s career did not turn out as successfully as they might have hoped, and that they were unable to accumulate significant assets of their own during the marriage, does not render the marriage contract unconscionable. That is simply the way things turned out.

[61] For these reasons, I reject the applicant’s allegations that the marriage contract is invalid. I find, on the evidence, that the marriage contract is valid and enforceable in accordance with its terms.

[62] The result of this finding is that the applicant has no claim to the value or benefit of any assets owned by the respondent at the date of marriage or acquired by him after marriage from his parents by way of inheritance, gift, purchase or acquisition in any other manner including, without limitation, any assets which the respondent received or receives by way of distribution from any inter vivos or testamentary trust and any assets traceable to those assets. The value of 3488, therefore, is excluded property for equalization purposes. The value of any of the respondent’s assets traceable to funds from Irving Ludmer’s estate plan must also be excluded from the respondent’s net family property.

Ownership of/Interest in Matrimonial Home

[63] The parties occupied two homes during the course of their marriage. The first, at 136 Glengarry Ave., was purchased on March 31, 1989. The registered owner was the applicant. The Glengarry property was sold on June 29, 1992. The net proceeds of sale were used as part of the purchase price to acquire 517 Brookdale Ave., which closed on the same day as the sale of Glengarry. Title to Brookdale was also taken in the name of the applicant.

[64] The parties and their children lived in Brookdale until separation occurred in January 2005. The respondent still lives there.

[65] The evidence at trial was, and it is not disputed, that the entire purchase price ($625,000) for Glengarry was transferred from the LCT to the respondent (via the parties’ joint bank account). This transfer reduced the respondent’s “capital account” in the trust accordingly.

[66] Glengarry was sold at a loss for $435,000. After deductions for outstanding taxes, utilities, etc., this netted the parties $411,000 toward the purchase of Brookdale. The difference between the Glengarry net proceeds and the Brookdale purchase price of $687,000 was financed by a Bank of Montréal mortgage of $300,000 issued to the applicant, with the respondent as guarantor.

[67] During the trial, the parties agreed on a current valuation of Brookdale at $1,394,000 (based on a September 13, 2012 appraisal). I have therefore used that figure for the present value of Brookdale in the balance of these Reasons.

[68] There are two issues relating to the matrimonial home (517 Brookdale):

the implications of the advance by the LCT of $625,000 to acquire Glengarry and the use of the proceeds of Glengarry’s sale to acquire Brookdale; and
ownership of the matrimonial home.

The Use of Trust Property

[69] Section 4(2) of the Family Law Act, as noted earlier, excludes the value of property acquired by gift or inheritance other than the matrimonial home.

[70] It is clear, however, that parties are not precluded from agreeing to exempt the value of the matrimonial home from the equalization process. The question is whether they have done so clearly and unambiguously.

[71] Article 19 of the trust deed provides that any trust property “as well as all property acquired in replacement thereof or representing the same or derived therefrom” shall in no event form part of any community of property between a beneficiary and his or her consort.

[72] Paragraph 4(a)(ii) of the marriage contract includes within the ambit of excluded property any assets acquired by a spouse as a result of the sale or exchange of any of the assets referred to in paragraph 4(a)(i) including, without limitation, “all proceeds of sale of such assets or substituted assets and any assets which are acquired with any part of such proceeds.”

[73] The provisions of the Québec trust deed govern the relationship between the beneficiaries of the LCT and the trustee. I do not think the provisions of the trust deed can be taken to govern the relationship between the respondent and the applicant in matrimonial proceedings in Ontario, as the applicant is not a party to or in any way involved in the operations of the trust deed. Further, the LCT has been extinguished and replaced by an estate freeze involving individual corporations of which Irving Ludmer holds voting control and the Ludmer children hold the participating equity. Whether Irving Ludmer, as controlling shareholder, remains a trustee under the terms of the trust deed is a complex issue of Québec law which, in my view, need not be decided in this case. For the purposes of my analysis, I find that the provisions of the trust deed do not, in law, govern the applicant’s rights vis-à-vis the respondent in the context of Ontario matrimonial proceedings.

[74] This does not end the matter because, as concluded above, the marriage contract is valid and enforceable and does govern the relationship between the applicant and the respondent in the context of Ontario matrimonial proceedings.

[75] The respondent’s argument is that $625,000 was a gift to him, acquired after marriage, from his parents. That gift was deposited into the parties’ joint bank account but was used immediately in its entirety (no mortgage was required) to acquire the Glengarry property. The joint bank account otherwise carried a modest balance. There was no co-mingling. Glengarry, therefore, according to the respondent, became an asset acquired by the respondent as a result of the exchange of the LCT funds for the Glengarry property. When Glengarry was sold, the respondent argues that the cash from that sale ($411,000) itself became an asset acquired by him as a result of the sale of Glengarry, which was then used to acquire Brookdale. As such, Brookdale is an asset which was acquired with proceeds directly traceable to Glengarry, which is itself directly traceable to the original gift. The value of his interest in Brookdale, therefore, is excluded property.

[76] The application of some form of tracing is contemplated by section 4(2) of the Family Law Act, which provides that excluded property includes not only property under subparagraph 1 that was acquired by gift or inheritance but “property other than a matrimonial home into which property referred to in paragraphs 1 to 4 can be traced.”

[77] The proviso excluding the matrimonial home from the gift and tracing rules, the respondent argues, is inapplicable here because of the marriage contract, which applies to all property and does not exclude the matrimonial home from its reach.[1]

[78] Perkins J., in Goodyer v. Goodyer, 1999 CanLII 20759 (ON SCDC), [1999] O.J. No. 29 (C.J. Gen. Div.), said:

The tracing concept was adopted because the Family Law Act property scheme has a bias in favor of sharing the value of assets in existence at separation date and a bias against the exclusion of assets from the equalization calculation. Hence the onus on the spouse seeking to exclude assets, and hence the requirement that the spouse seeking to exclude a gift received during the marriage be able to trace it from its original form into assets in existence at the separation.

[79] There has been, over the years since the introduction of the tracing rules into family law, a certain amount of litigation over the scope and nature of the tracing tests to be used and applied. It appears that some of the older, more technical tracing rules developed in the context of trust law are not applicable in the family law context where they would bring about an arbitrary or unfair result: see Ontario Securities Commission v. Greymac Credit Corp. (1986), 1986 CanLII 2693 (ON CA), 55 O.R. (2d) 673 (C.A.), affirmed [1988] 2 S.C.R, and Goodyer, supra, at paras. 69-70.

[80] Applying a “common sense” approach in P.A.B. v. C.M.B., 1997 CanLII 12388 (ON SC), [1997] O.J. No. 4768 (C.J. Gen. Div.), at para. 85, Justice Métivier said the following:

With respect to parcel “C” and the tracing of inherited funds which went to purchase it, I find the proximity of the two events (the inheritance and the purchase) to be such that, on a reasonable balance of probabilities, the inherited funds were used for this purchase. Strict tracing rules would not provide for this result but common sense and a reasonable view of how this couple could have found the amount of money required for the purchase of the land leads to a conclusion that the strict tracing rules should be relaxed.

[81] The language of the marriage contract refers to “none” of the identified assets being included in net family property. It defines as excluded “all assets” acquired by one of them by way of inheritance, gift, purchase or acquisition (including assets acquired by way of inter vivos or testamentary trust and “any” assets acquired as a result of the sale or exchange of one of the above assets including “all” proceeds of sale or substituted assets or “any” assets acquired with “any” part of such proceeds.

[82] In my view, the language agreed to in the marriage contract is very broad. The exclusion, if applicable, governs “all” assets. The marriage contract, therefore, is easily interpreted as capable of excluding the value of an interest in the matrimonial home if the stipulated basis for exclusion otherwise applies, Kajtor v. Kajtor, [1992] O.J. No. 1897 (C.J. Gen. Div.).

[83] In this case, the cheque from the LCT bank account to Brian Ludmer was dated March 30, 1989 and deposited on March 30, 1989. The closing of the Glengarry purchase was March 31, 1989. The funds were used to close the purchase of Glengarry. I accept the respondent’s evidence that the parties’ joint account generally carried a modest balance. This couple simply did not have the funds to acquire this home in 1989. This is precisely why the respondent prevailed upon his parents to give him the money. The proximity and context of the two events (the gift and the purchase) are sufficiently close, in the context of the parties’ means at the time, to warrant the conclusion that the gift of $625,000 from the LCT is traceable to the Glengarry property, such that the respondent’s interest in Glengarry property fell within the excluded property provisions of the marriage contract.

[84] The question then becomes whether the proceeds of sale (at a loss), three years later, of the Glengarry property, which were used to partially finance the purchase of the Brookdale property are also subject to the same tracing logic.

[85] There is no principle of which I am aware in the family law context that limits the application of tracing by number of transactions or mere changes in the form of the asset. Nor can such limitations be implied into the language of the marriage contract. At each stage, the question is whether the beneficiary can show that the subsequent property or proceeds were acquired, or partially acquired, with assets traceable to the trust property.

[86] Thus, it is not the transformation of the asset that brings tracing to an end. Rather, it is the inability of the beneficiary to prove the necessary connection or nexus between the trust property and the subsequently acquired asset. For example, tracing may reach its limit when an asset is spent or dissipated or where it is used to pay down debt or otherwise becomes co-mingled with other assets such that the original trust property can no longer be discerned.

[87] I have found no case which suggests that the excluded nature of property begins to “peter out” merely because it is exchanged for equally identifiable property or through the effluxion of time. Where there is clear documentary evidence of the transformation of an excluded asset into other identifiable property, the exclusion is preserved.

[88] It is for this reason that I am bound to conclude that the proceeds of sale of Glengarry of $411,000 represent “proceeds of sale of” an excluded asset and that the respondent’s interest in Brookdale, up to the maximum amount of $411,000, should be excluded from his net family property for equalization.

[89] The next step therefore is to determine the extent of the respondent and applicant’s interest in the matrimonial home.

Ownership of the Matrimonial Home

[90] The applicant holds legal title to the matrimonial home. The issue in dispute is the extent of the parties’ beneficial interest.

[91] Section 4(1) of the Family Law Act defines net family property to include the value of all property owned by a spouse on valuation date other than property described as “excluded property” in section 4(2). Section 4(2) provides that property, other than the matrimonial home, that was acquired by gift or inheritance from a third party after the date of marriage does not form part of that spouse’s net family property.

[92] Section 14 of the Family Law Act provides, with certain exceptions not relevant here, that the rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses as if they were not married.

[93] The first step required by section 4 of the Family Law Act is to identify all relevant property. Then ownership has to be determined. At this stage, trust principles may be brought to bear such that ownership of property for net family property purposes is deemed to be different from that which may be recorded in a title document. Once the ownership of property is established, the value of the property at the valuation date must be determined. Next, the court must determine the relevant deductions and exclusions under sections 4(1) and 4(2) of the Family Law Act: see Hamilton v. Hamilton, 1996 CanLII 599 (ON CA), [1996] O.J. No. 2634 (C.A.), at paras. 25-26 and McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at paras. 63-65.

[94] The applicant testified that the reason she alone took title to their homes was liability concerns vis-à-vis the respondent’s law practice. She did not, in her testimony, assert that either home was a gift to her alone. The respondent testified that title was taken in the applicant’s name alone on both properties to preserve the resulting trust contemplated by article 19 of the trust deed and paragraph 4 of the marriage contract. If title had been taken in joint tenancy, he said, this might have defeated the underlying intention of the marriage contract that property traceable to his interest in the estate plan was excluded property for family law purposes. The respondent testified that there was never any intention to gift either home to the applicant.

[95] Although, in her pleadings, the applicant maintained that because she held legal title to matrimonial home, it belonged to her and should be excluded from her net family property, this position was not seriously advanced at trial.

[96] As noted above, the applicant gave no testimony during the trial in support of the proposition that she held a 100 per cent beneficial interest in the matrimonial home by way of gift. In cross-examination, the applicant, when asked who owned the matrimonial home, said “It was the matrimonial home. It belonged to both of us,” and “It was our home, the family home.” She conceded that during the marriage both parties worked and both parties contributed to the upkeep and carrying costs of the family home.

[97] The respondent asserts a disproportionate ownership in the matrimonial home as a result of the fact that $625,000, given to him by Irving Ludmer out of his contingent interest in the LCT, was used to purchase Glengarry. The net proceeds of the sale of Glengarry, approximately $411,000, were used to purchase Brookdale. That was 60 per cent of the purchase price. The balance, 40 per cent, financed by way of a mortgage, was shared equally (20 per cent each).

[98] What emerges from this evidentiary background are four potential ownership scenarios.

100 per cent owned by applicant;
100 per cent owned by respondent;
jointly owned by both parties in equal shares (50/50); and
jointly owned by both parties in unequal shares (80/20).

[99] Neither of the first two scenarios was advanced by either party at trial. Thus, the issue that must be determined is whether the parties intended the 1992 ownership of the matrimonial home to be in equal proportions or whether it was to be owned 80 per cent by the respondent and 20 per cent by the applicant.

[100] The respondent’s argument - that title was put 100 per cent in the applicant’s name so as to preserve the respondent’s resulting trust interest to the extent of 80 per cent - frankly, makes no sense. I reject this argument.

[101] The applicant’s evidence, that title was put in her name to protect the home from potential creditors, since he was a partner in a major law firm and more likely to be sued than she was, makes a great deal of sense and I accept her evidence on this issue, as far as it goes. That evidence does not, however, resolve the issue of the extent of the parties’ beneficial interest in the home.

[102] The respondent’s real argument is that ownership should “follow the money.” He put up $411,000 (excluded property), to the tune of 60 per cent of the purchase price of Brookdale and both parties shared liability for the balance (40 per cent) with the result that he “put up” 80 per cent of the acquisition cost and the applicant only put up 20 per cent.

[103] The respondent relies on s.14 of the FLA and the decision of The Ontario Court of Appeal in Hamilton v. Hamilton, supra, at para. 34.

[104] A presumption of a resulting trust arises in favour of a person who contributes financially to the purchase of property but does not take title in their own name. Under this presumption the extent of the beneficial interest is proportionate to the financial contribution made to acquire the property. The presumption of a resulting trust is rebuttable by showing that the non-title holder intended the title holder to have a beneficial interest in the property.

[105] The logic of the respondent’s position, in my view, only holds up in light of circumstances as they developed in January 2005 when the parties separated. In 1992, this couple was, by both their admissions, very much in love and happily married. They had a seven month old baby. The respondent’s theory that ownership of their home in 1992 should follow the source of the dollars used to purchase it is completely inconsistent with the respondent’s testimony as to his attitude in 1985 at the time of the marriage contract. Then, he said, he was indifferent to whether the applicant signed or not.

[106] There is no evidence that the respondent’s attitude had changed in 1992. There is no evidence or any indication whatsoever, that the parties discussed, documented or agreed in 1992 that ownership of Brookdale, the new matrimonial home, would be proportional to the dollars contributed by each of them. There was no deed of gift to the applicant. Neither was there any documented or even articulated agreement that the applicant was holding title to Brookdale by way of resulting trust for herself, to the extent of 20 per cent and for the respondent to the extent of 80 per cent.

[107] I accept the applicant’s evidence that the home was “their” home and that they would share ownership in it equally.

[108] I find, therefore, that the presumption of a resulting trust to the extent of 80/20 has been rebutted. The applicant held title to Brookdale in trust for the respondent to the extent of 50 per cent. The asset acquired in Brookdale by the respondent as a result of the sale or exchange of the LCT funds used to acquire Glengarry, was a half interest in Brookdale.

[109] The evidence is that the value of Bookdale at the date of separation was $905,000. There was a $290,985 mortgage on the property.

[110] This means there was $614,015 of equity. As equal owners, their interest was worth $307,007.50 each. The respondent’s entire share of the value of the equity is excluded property by virtue of the fact that $411,000 of the Brookdale purchase price is traceable to funds advanced by the LCT. Thus, the value of the respondent’s $307,007.50 equity interest in Brookdale on valuation day must be listed as excluded property in Part 7 of his net family property statement.

[111] The respondent has been paying the carrying costs on Brookdale since 2005. By the same token, he alone has enjoyed the exclusive benefit of Brookdale by virtue of living there and running his law practice from there.

[112] There was no evidence of extraordinary investments made by the respondent in the home post-separation which materially affected its current value.

[113] Accordingly, I find that the respondent’s expenditures on the home since separation are offset by the benefits he alone enjoyed. I can find no basis in the evidence for the conclusion that the post-separation gain in value was any more than market-related. As a result, both owners must share in the increase equally.

[114] The parties agreed that the current value of the matrimonial home is $1,394,000. One half of the net gain since separation, when the house was worth $905,000, is the property of the applicant. This amount is $244,500.

[115] The respondent, therefore, must acquire the applicant’s share of the matrimonial home for an amount which includes half of the post-separation gain, as more specifically set out in these Reasons below.

Equalization

[116] The principal issue in dispute regarding equalization is the exclusion, or non-exclusion, of the value of the respondent’s interest in Irving Ludmer’s estate plan. I have held that this is an excluded asset. I am, therefore, restricting my analysis of the parties’ draft net family property statements only to those presentations which exclude the estate plan. Because the exclusion of this asset results in a “wash”, it is unnecessary to come to any conclusion on the specific value of the asset. I do, however, accept the evidence of Mr. Langevin as to the value of the respondent’s interest in Irving Ludmer’s estate plan.

[117] The second most important asset in dispute is the party’s respective interest in the matrimonial home. I have found that the applicant had a 50 per cent interest and that the respondent has an exclusion for the value of his half of his interest in the matrimonial home as a result of the gift to the respondent from the LCT.

[118] The respondent lists, as excluded property in his NFP statement, the full amount advanced to purchase Glengarry of $625,000. In my view, this amount is excessive and conceptually wrong, as only net equity of $411,000 came from Glengarry to acquire Brookdale. Thus, only $411,000 of the value of Brookdale is traceable to excluded property and may be claimed as such. However, since the value of the respondent’s interest in the net equity of the home at separation was only $307,007.50, only $307,007.50 may be excluded.

[119] Their equal ownership interest in the home also affects the apportionment of the secured line of credit registered against the Brookdale property and notional costs of disposition, which both must be apportioned 50/50 as well.

[120] I accept the respondent’s net family property statement “excluded property version”, filed at Tab 3 of the respondent’s opening trial statement brief, with these and the following additional amendments.

[121] The respondent’s statement includes values for the applicant’s jewellery at a purported replacement value of $8,275. The applicant (in her net family property statement filed at Tab 57 of the Trial Record) represents that the jewellery is worth only $2,700. I am not satisfied that the evidence warrants inclusion of this asset at replacement value. The value of $2,700 shall be used.

[122] Under Part Five of his statement, Debts and Other Liabilities, the respondent has entries for amounts owing to Kall Plumbing, Smart Wiring and Home Depot for $10,000, $ 2,000 and $5,000 respectively. My reading of the evidence supports the figures of $8,746, $1,926 and $4,134 respectively for these items. I therefore find that these three items total $14,806, not $17,000.

By my calculation, all of the above noted adjustments result in net family property of $559,592 for the applicant and $19,356 for the respondent, for net equalization owing to the respondent by the applicant of $270,118. I therefore find this amount is owed by the applicant to respondent on account of equalization of net family property.

Support

a) Income

[123] Income is one of the important determinants of spousal and child support as well as the apportionment of s.7 expenses under the Federal Child Support Guidelines, SOR/97-175 (“CSG”).

[124] In this case, the determination of the applicant’s income is reasonably straightforward – she was a T4 employee post-separation. The respondent’s income is more complicated – he was let go from his law firm at the end of 2004. In 2005 and 2006 he had essentially no income. Starting in 2007, he began to develop a family law practice. His income increased thereafter but he made substantial deductions from gross income for tax, line 150 income, purposes.

i) Applicant’s Income

[125] The applicant’s line 150 income for the period since separation (2005-2012) was:

2005 $ 66,809

2006 $128,460

2007 $331,918

2008 $302,212

2009 $108,073

2010 $ 71,302

2011 $ 82,509

[126] However, in 2007 and 2008, the applicant cashed in RRSPs which increased her income. For purposes of calculating spousal and child support, I have excluded these non-repeating encroachments on capital. I find, therefore, that the applicable income numbers for the applicant for 2007 and 2008 are $164,620 and $122,453 respectively.

[127] In 2012, the applicant remained employed by the same employer until October when she started a new job at slightly higher pay ($90,000). The increment in income for 2012 is therefore quite small. For support purposes, I find the best evidence of the applicant’s income in 2012 to be $84,000. Thus, for support purposes I find the applicant’s income was:

2005 $ 66,809

2006 $128,460

2007 $164,620

2008 $122,453

2009 $108,073

2010 $ 71,302

2011 $ 82,509

2012 $ 84,000

ii) Respondent’s Income

[128] The respondent’s line 150 income for the same period was:

2005 $0

2006 $26,105

2007 $235,576

2008 $303,491

2009 $90,103

2010 $226,162

2011 $149,080

[129] The evidence is that Irving Ludmer provided the respondent with substantial funds in the period from 2004 to 2007. These funds were loans to the respondent from Irving Ludmer. Irving Ludmer testified that 3488 was ultimately the payor of the loans.

[130] The funds were advanced to pay the respondent’s significant tax liabilities (resulting from, among other things, his withdrawal from a law partnership in 2004), legal fees, assessment fees and some of the childrens’ s. 7 expenses.

[131] The loans are all documented and the loan agreements were admitted into evidence.

[132] Mackinnon J., in Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), [2006] O.J. No. 1660 (S.C.), at para. 21, considered the issue of whether gift or loans should be inputed into income. He wrote:

The court should be cautious in imputing income on the basis of gifts when so doing would have the effect of transferring a child support obligation to someone who, legally, does not have that obligation.
Income is generally imputed where a parent is not properly utilizing earning capacity or other resources to support his or her children.
Factors supporting income imputation on the basis of gifts include:

a. the gifts represent a significant portion of the recipient’s overall income;

b. the gifts are part of a planned or intentional diversion of income or substitution for income previously earned from this source; and,

c. there is reliance upon the regular and ongoing nature of the gifts as an income source in lieu of pursuing other remunerative employment commensurate with the abilities of the respondent.

Failure to make full disclosure is a frequent factor in cases where income is imputed.

[133] In this case, of course, Irving Ludmer had no legal obligation to support his former daughter-in-law or his grandchildren: see Yunger v. Zslty, 2011 ONSC 5943, [2011] O.J. No. 4459.

[134] Accordingly, caution must be exercised in imputing discretionary advances from Irving Ludmer to his son as “income” to the respondent for support purposes. This is particularly so where the assistance is targeted, as it was here, to specific purposes, such as taxes, legal and assessment fees and childrens’ expenses.

[135] As set out in more detail below, I find that the respondent, in 2005 and 2006, was not purposely avoiding utilizing his income earning capacity. The loans from Irving Ludmer were not recurring “income replacement” in my view.

[136] While these loans did represent a significant portion of the moneys available to the respondent in those years, they were not, I find, part of a planned or intentional diversion of income; there was no reliance on these funds as an income source in lieu of other remunerative employment and disclosure was made of these loans.

[137] For these reasons, I find that the loan advances from Irving Ludmer to the respondent in the 2005 to 2007 period are not income for support calculation purposes.

[138] In 2005, the respondent had professional income of about $76,000, but, because of bad debts and other expenses, he suffered a net loss of over $50,000.

[139] In 2006, the respondent earned gross professional income of $103,000 with net income of $26,000.

[140] The respondent’s 2007 income of $235,000 reflects non-repeating encroachment on capital (cashing in RRSPs) of $98,631. As with the applicant, I am disregarding such capital encroachments for calculation of income for support purposes. I, therefore, find the respondent’s gross professional income in 2007 to be $204,505. After deduction of business expenses, this resulted in reported line 137 professional income of $136,945.

[141] Again in 2008, the respondent had to cash in RRSPs in the amount of $83,333. I find that his gross professional income for 2008 was $340,057. After business expenses were deducted, the respondent reported net professional income of $219,602.

[142] By 2009, the respondent was well into his plan to reinvent himself as a family law lawyer. His gross professional income was $266,370 in 2009. After business expenses, however, in 2009, his net income was only $90,103.

[143] For 2009, 2010 and 2011, the respondent’s net income as a percentage of gross professional income was:

33.82% (90,103/266,370)

43.01% (266,162/618,789)

21.58% (149,080/690,644)

respectively.

[144] The respondent concedes that his expenses were high but argues that to build the practice he had to spend a lot of money on publications and technology and hire a substantial number of secretarial and paralegal staff.

[145] The respondent’s accountant, Rebecca Campbell, testified at trial. She said that she did the respondent’s books and prepared his tax returns. She testified that she performed a limited “audit” function, to the extent of satisfying herself that a given expense was supported by a receipt which, at least arguably, appeared to relate to the earning of professional fees. She did not, however, have experience with other sole practitioner law practices and performed no assessment of whether the respondent’s expenses, for example, in 2011 of 78.42 per cent of gross revenues, represented a reasonable level of profitability for a small business such as this one.

[146] I accept that the respondent made reasonable efforts to find new employment during 2004 (before his working notice ran out) and throughout 2005 and into 2006. I accept that given the reversal of his fortunes as a securities lawyer in a large downtown firm, especially following the end of the technology bubble, it was going to take some time to re-establish himself.

[147] I also accept that during the period 2007 and 2008, while the respondent was establishing himself as a sole practitioner in family law, his expenses would represent an abnormally high percentage of gross professional revenues.

[148] For these reasons, I do not think there is any basis to impute income to the respondent during the years 2005 through 2008, as a result of intentional under-employment or by way of challenge to his business deductions.

[149] However, once his practice was up and running and generating substantial revenues starting in 2009, closer scrutiny is warranted.

[150] Significant expenses of the respondent’s practice in 2009, 2010 and 2011 included:

	2009 (% gross rev)	2010 (% gross rev)	2011 (% gross rev)
Home Office	30,667 (11.51%)	19,875 (3.21%)	30,518 (4.42%)
Legal/Acctg.	21,947 (8.24%)	55,766 (9.01%)	82,996 (12.02%)
Vehicle	7,944 (2.98%)	11,998 (1.94%)	13,265 (1.92%)
Meals/Ent.	2,783 (1.04%)	8,975 (1.45%)	8,060 (1.17%)
Publications	50,222 (18.85%)	54,558 (8.82%)	68,596 (9.93%)
Total	113,563 (42.63%)	151,172 (24.43%)	203,435 (29.46%)

[151] Although the CSG apply only to child support, the courts have tended to rely on the determination of CSG income for spousal support calculation purposes as well: see Murray v. Murray (2003), 2003 CanLII 64299 (ON SC), 66 O.R. (3d) 540 (S.C.), at para. 57, rev’d on other grounds (2005) 2005 CanLII 30422 (ON CA), 76 O.R. (3d) 546; Hawco v. Myers, 2005 NLCA 74, [2005] N.J. No. 378, at para. 42. Whether spousal support or child support is at issue, the task is to determine an income level that fairly reflects the means or compensation available to the spouse or parent: see Aelbers v. Aelbers, 2010 BCSC 1574, [2010] B.C.J. No. 2180, at paras. 12-13.

[152] Sections 18 and 19 of the CSG provide that the court is not bound by line 150 income reported to CRA for purposes of determining support: see Brophy v. Brophy, 2002 CanLII 76706 (ON SC), [2002] O.J. No. 3658 (S.C.), at para. 35. This is because the payor spouse’s income for income tax purposes may not be an accurate reflection of the money that the spouse has available for support payments. The fact that a business expense is “legitimate” for tax purposes does not mean that the same deduction is reasonable for support purposes: see Cook v. Cook, 2011 ONSC 5920, [2011] O.J. No. 4399, at para. 60.

[153] The case law reveals that car expenses, rent/home office, travel, meals/entertainment, phone/internet, insurance and legal expenses all represent examples of expenses that have been “added back” to income for support calculation purposes. The amount added back can range from small percentages (20 per cent) to the full amount (100 per cent).

[154] It must also be noted that when a spouse has organized his or her finances so as to pay less tax than a salaried employee would pay, if the court proposes to add back business expenses to income for support purposes, the amounts added back must be “grossed up” for taxes to satisfy the consistent treatment objective of the CSG: see Riel v. Holland (2003), 2003 CanLII 3433 (ON CA), 67 O.R. (3d) 417 (C.A.), at paras. 35-36.

[155] In my view, the full amount of home office, legal, vehicle, and meals/entertainment deducted from the respondent’s gross income should not be deducted from the respondent’s income for support purposes. In addition, I do not think the respondent’s publication expenses, running at 9 to 19 per cent of the respondent’s gross revenue, can be regarded as reasonable for support purposes.

[156] Another way of looking at this issue is to assess whether total expenses running at 66.18 per cent, 56.99 per cent and 78.42 per cent of gross income for 2009 to 2011 for a small professional practice are reasonable.

[157] As noted, courts have added back up to 100 per cent of home office deductions, for example, grossed up for taxes. There is no scientific or absolute means of determining the right balance of expense deduction to gross revenue for a one-person law office. Whether by adding back specific, grossed up amounts or considering the overall reasonableness of the level of expenses versus gross revenues I am, in the end, required to determine an income level that fairly and reasonably reflects the compensation available to the respondent to pay support. Common sense suggests that expenses of 78.42 per cent of gross revenue are unreasonable and unsustainable.

[158] Similarly, common sense suggests that expenditures of over $68,000 (10 per cent of gross revenues) on publications to support a one-man operation are unreasonable.

[159] In my view, the fairest and simplest expedient in these circumstances is simply to find that the respondent’s business expenses, for support purposes, cannot reasonably exceeded 50 per cent of gross revenue.

[160] The respondent’s evidence in October 2012 was that his anticipated gross revenues for 2012 were up over 2011 by 20 per cent (that is, by approximately $138,000). However, the respondent also testified that he was likely to incur new additional costs associated with the need to rent office space (municipal planning rules have required him to move some of his operation out of the home).

[161] The best evidence of the respondent’s 2012 income, therefore, applying the same rule of thumb (expenses cannot reasonably exceed 50 per cent of gross revenues) is that the respondent’s anticipated 2012 income for support purposes will be $414,322.

[162] Accordingly, I find that the respondent’s income, for support purposes, is as follows:

2005 $0

2006 $26,000

2007 $136,945

2008 $219,602

2009 $133,185

2010 $309,394

2011 $345,322

2012 $414,322

b) Child Support

[163] It is not contested in this case that the respondent, from the date of separation, exercised a right of access to or had physical custody of the children for not less than 40 per cent of the time over the course of each year until September 2008 when child custody and access was settled. Following that settlement, the respondent had a right of access to and physical custody of the children for 50 per cent of the time over the course of the year.

[164] Section 9 of the CSG provides that in such circumstances, the amount of the child support order must be determined by taking into account:

(a) the amounts set out in the applicable Tables for each of the spouses;

(d) the increased costs of shared custody arrangements; and

(e) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[165] The Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 65, [2005] 3 S.C.R. 217, at para. 37 stated that: “the framework of s. 9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support.”

[166] Since there is no dispute in this case that the respondent met the 40 per cent threshold, I will move directly to step two under the Contino methodology.

[167] A good deal has been written about how to calculate child support amounts under a shared custody model. It is clear that there are no presumptions in favour of awarding at least the Guideline amount under s. 3 and there is no presumption in favour of reducing a parent’s child support obligation downward from the Guideline amount. No fixed formula is mandated. Multipliers are not to be used. There is no need to separate out s. 7 expenses (although, in this case, the parties have done so and I have treated these expenses separately in these Reasons).

[168] The basic approach might be described as involving three steps. The starting point for a reasonable solution under s. 9(a) is the simple set off of each parent’s Table amount for the number of children involved in the shared custody arrangement. This is, however, not the end of the inquiry. A court must depart from the set-off amount or make adjustments to it if the set off amount is inappropriate in light of the factors considered under ss. 9(b) and 9(c).

[169] Accordingly, the court must next look at the parents’ actual spending patterns, based upon child expense budgets. All of the expenses of both parents should be considered, not just the additional expenses resulting from an increase in access. Child expenses should be apportioned between the parents in accordance with their incomes.

[170] Third, not every dollar spent by a parent in exercising access over the 40 per cent threshold results in a dollar saved by the recipient parent. Accordingly, the court must consider the ability of each parent to bear the increased cost of shared custody and the standard of living for the children in each household.

[171] Both parties filed extensive material on their expenses which related to the children. Both parties filed sworn financial statements periodically throughout these proceedings containing household budgets. Both parties sought to maintain for the children, post-separation, a lifestyle comparable to that which they enjoyed pre-separation. The respondent stayed in the matrimonial home but ran his law practice from there. The applicant rented her own home not far away. Both parents paid for various items; the applicant bought most of the clothes, for example, whereas the respondent paid for more of the cell phone expenses.

[172] In general, the applicant’s income exceeded the respondent’s in three of the eight years since separation; the respondent’s income exceeded the applicant’s in four of the eight years; and the party’s incomes were roughly comparable in the remaining year.

[173] Jaclyn has been living away from home during the school term for the last four years. Kyle is also now living away from home during the school term.

[174] I have carefully considered all of the evidence, documentary and oral. I am unable to conclude that shared custody arrangements (meaning 40 to 50 per cent access/physical custody) per se have caused the parties to incur disproportionate additional cost. I am also unable to conclude that the non-s. 7 type expenses have been shared disproportionately between the parties. Further, there have been significant swings in the parties’ relative incomes. The respondent’s income is now clearly on the rise but this has been a time when many of the day-to-day childrens’ expenses (i.e., not s. 7-type expenses) have been reduced because Jaclyn and now Kyle have been away at school.

[175] The respondent testified that if he had not had the children, he would not have kept a nanny and would not have kept the Brookdale home, and that expenses would have been accordingly reduced. The nanny, in my view, is a separate issue which I shall deal with under the category of s. 7 expenses. In any event, I do not accept the respondent’s evidence that his decision to keep the nanny or to remain in the Brookdale house turned only on the threshold of 40 per cent access/physical custody. The respondent’s evidence was that he desperately wanted to have a strong and stable relationship with his children and to preserve the children's lifestyle, to the greatest extent possible, post-separation. He did so, in the early post-separation years, in fact, by borrowing significant amounts from his father. Further, the respondent ran his practice out of the home. There were significant reasons, therefore, to remain in the Brookdale home, many of which had nothing to do with whether he had access/custody of the children 40 per cent of the time.

[176] Accordingly, I have concluded that the starting point under s. 9 of the CSGs in this case does represent a reasonable solution to the fair allocation of child-related expenses for child support purposes. The additional factors do not require any adjustment to the set-off amounts.

[177] Child support must, therefore, be calculated on the basis of the Table amounts payable by each parent, based on the incomes as found above, set off against each other.

[178] I find that the amount of child support payable is as set out in the Table below. In the years 2009-2012, when Jaclyn was attending university away from home, child support is payable for her only during the four summer months during which she was not attending university. For this reason, child support is calculated to be payable for two children for the first eight months of 2009 and for one child (Kyle) for the last four months of that year. In 2010 and 2011, child support is payable for one child (Kyle) for eight months of the year and for two children for the four summer months. In 2012, when both children were attending university, support is payable for one child (Kyle) for eight months and Jaclyn for only the four summer months. No support is payable for September to December 2012 because both children were away at university.

Year	**Table amount applicant to pay	**Table amount respondent to pay	Set-off amount	Number of months	Total owed by
2005	$895	$0	$895 (A)	12	$10,740 (A)
2006	$1536	$379	$1,157 (A)	12	$13,884 (A)
2007	$2,162	$1,840	$322 (A)	12	$3,864 (A)
2008	$1,673	$2,799	$1,126 (R)	12	$13,512 (R)
*2009	$1,503	$1,797	$294 (R)	8	$2,352 (R)
	$940	$1,129	$189 (R)	4	$756 (R)
*2010	$1,058	$3,841	$2,783 (R)	4	$11,132 (R)
	$656	$2,434	$1,778 (R)	8	$14,224 (R)
*2011	$1,190	$ 4,258	$3,068 (R)	4	$12,272 (R)
	$739	$2,699	$1,960 (R)	8	$15,680 (R)
*2012	$1,220	$5,025	$3,805 (R)	4	$15,220 (R)
	$754	$3,219	$2,465 (R)	4	$9,860 (R)
A owes	$28,488
R owes	$95,008
Set-off total owed by R	$66,520

The two lines within each of these years reflects the two calculations required because one or both children were away in full time attendance at school. ** Based on the incomes as found in these Reasons.

Ongoing Child Support

[179] The only ongoing support is in respect of Kyle, who will likely graduate in 2016. Child support, therefore, is payable for four months of each year. Based on the applicant’s projected $90,000 income for 2013 and an average of the respondent’s last two years’ income ($379,822), child support based on a set-off of the parents’ obligations is a net of $2,163 per month for a total of $8,652 per year. This amount shall be paid by the respondent in a lump sum on June 30 of 2013, 2014 and 2015, provided Kyle remains in full time attendance at school.

c) Section 7 Expenses

[180] The evidence is that the respondent spent over $600,000 on children’s expenses from 2005-2012. The amounts, which were not challenged by the applicant, were:

2005 $84,751.97

2006 $80,766.66

2007 $88,222.94

2008 $75,440.48

2009 $56,855.86

2010 $82,984.34

2011 $85,297.58

2012 $52,257.29

Total: $606,577.12

[181] The evidence was unchallenged that these expenses were comprised of essentially five components:

Hebrew day school;

nanny;

Kyle’s hockey;

post-secondary school (after RESPs); and

summer camp.

[182] The applicant effectively admitted that the respondent paid for these activities; that they were in accordance with the family’s life-style pre-separation; that she acquiesced in and to some extent herself enjoyed the provision of these benefits to the children; and, that she paid nothing from 2005 to 2012 for these expenditures.

[183] The respondent spent $84,751.97 on special and extraordinary expenses for the children in 2005. This was a year in which his income was zero and his wife’s income was $66,809 (for a total income of $66,809).

[184] In 2006, the respondent spent $80,766.66 on special and extraordinary expenses. This was a year in which his income was $26,000 and his wife’s was $128,460 (a total of $154,460).

[185] The respondent testified that he strived to maintain the children’s life-style as it was at separation. Since he had no money, he funded these expenditures through loans from his father.

[186] From late December 2004 through to the end of 2006 Irving Ludmer loaned the respondent significant amounts for various legal, tax and other expenses.

[187] These loans were all well documented. They bore interest.

[188] It is not necessary, for the purpose of these Reasons, to get into the specific amounts other than to say that, in 2005 and 2006, the respondent received non-earmarked funds in the amount of about $100,000 each year that the respondent used to pay for the childrens’ s. 7 expenses.

[189] Irving Ludmer testified that the “expectation” was that he would be repaid by 3488 and that 3488 was, in fact, “ultimately the payor of the loans.”

[190] Issues relating to the calculation of the respondent’s income from 2005 through 2007 have been dealt with above. In the context of determining “income”, I have accepted the respondent’s argument that the Irving Ludmer loans in 2005 and 2006 are not properly characterized as “income” in the respondent’s hands for support purposes.

[191] It is on this basis that the respondent argues that he should be reimbursed (proportionate to the parties’ income) for s. 7 expenditures made by him in 2005 and 2006 even though he had no, or almost no, income from which to pay for these expenses: see Franklin v. Franklin , 2010 ABQB 787, [2011] A.W.L.D. 1514 (Q.B.) at para. 24.

[192] I am not convinced, however, that the principle that “gifts are not income” is dispositive, in this case, of whether the applicant must reimburse her proportionate share of child-related expenses in 2005 and 2006 which this couple could not possibly have afforded on the basis of their own incomes.

[193] Section 7(1) of the CSG provides a two-part test to determine whether a claimed expense falls within the definition of a special or extraordinary expense – necessity and reasonableness. The expense must be necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and the child and the family’s life-style prior to separation.

[194] Section 7(2) says that expenses allowed under s. 7(1) are generally to be shared by the parents in proportion to their incomes. The court, however, retains discretion to decide the parent’s obligations other that in proportion to their incomes where there is good reason to do so: see R. (E.K.) v. W. (G.A.), 1997 CanLII 22798 (MB QB), [1997] M.J. No. 501.

[195] Because the “reasonableness” of the 2005 and 2006 expenses is in issue, “the court can look beyond the respective incomes of the parties and consider their overall means,” including support from other family members: see Pearse v. Pearse, 2010 BCSC 117, [2010] B.C.J. No. 148, at para. 44. Where an expense is not within the means of the parties the court may limit or deny recovery of that amount: see Ebrahim v. Ebrahim, [1997] B.C.J. No 2039 (S.C.); L.H.M.K. v. B.P.K., 2012 BCSC 435, [2012] B.C.J. 593, at paras. 97-98.

[196] In my view, child-related expenses of $84,751.97 in a year in which the respondent had no income (and the applicant only $66,809 of income) are not reasonable. The fact that he was able to fund these expenses through family financial assistance may not make the assistance “income” for support purposes. But this does not mean that the respondent is automatically entitled to 100% reimbursement from his wife, for an expense they clearly could not afford.

[197] I find, in these circumstances, that none of the 2005 expenses are subject to reimbursement by the applicant.

[198] A similar analysis can be made of the 2006 expenses, although the disparity between income and expenses is not quite as stark. The 2006 child-related expenditures, therefore, I find, while still unreasonable, were not as unreasonable as those in 2005.

[199] Nevertheless, I find that, for 2006, the applicant is required to reimbursement only 50% of the respondent’s s. 7 expenditures.

[200] For the years 2007 through to and including 2012, I find the applicant liable to reimburse the respondent for the s. 7 expenditures proportionate to income as found in these Reasons.

[201] The only claim made by the applicant which potentially falls within the proper ambit of s. 7 expenses was for private school fees for the children in the years for which the respondent refused to pay.

[202] However, the only evidence put before me was that the applicant was not required to pay these fees (about $60,000) on account of financial hardship. There was some suggestion of an understanding with the school that the fees would be paid out of any lump sum equalization paid to the applicant. However, there was no evidence of any legal obligation to do so.

[203] On this evidence, I am unable to conclude that the applicant incurred any s. 7 expense in respect of school tuition. Accordingly, there is no basis for seeking to apportion that expense between the parties.

[204] On the basis of my findings, the apportionment of s. 7 expenses shall be as follows:

Year	A Income	R Income	A %	R %	S.7 Exp.	A share	R share
2005	66,809	0	0	100	84,751.97	0	84,751.97
2006	128,460	26,000	50	50	80,766.66	40,383.33	40,383.33
2007	164,620	136,945	54.6	45.4	88,222.94	48,169.72	40,055.22
2008	122,453	219,602	35.8	64.2	75,440.48	27,007.69	48,432.79
2009	108,073	133,185	44.8	55.2	56,855.86	25,471.43	31,384.44
2010	71,302	309,394	18.7	81.3	82,984.34	15,518.07	67,466.27
2011	82,509	345,322	19.3	80.7	85,297.58	16,462.43	68,835.15
2012 (est.)	84,000	414,322	16.8	83.2	52,257.29	8,779.22	43,478.07
Total:					606,577.12	181,789.88	424,787.24

[205] There is a minor variation in the totals due to rounding. I find that the applicant owes the respondent $181,790 on account of s. 7 expenses incurred by the respondent from 2005 through 2012.

Ongoing Section 7 Expenses

[206] Jaclyn is about to graduate. Kyle is expected to remain enrolled in undergraduate studies until the spring of 2016.

[207] There was no claim for ongoing s. 7 expenses beyond each child’s first undergraduate degree.

[208] I therefore make no order for the sharing of special or extraordinary expenses for Jaclyn beyond the spring of 2013. Special or extraordinary expenses with respect to Kyle shall be shared proportionate to income until the spring of 2016 (provided he remains in full time attendance at school).

d) Spousal Support

[209] Sections 15.2(1) and (2) of the Divorce Act set out the court’s jurisdiction to make interim or final orders requiring a spouse to pay such spousal support as the court considers reasonable.

[210] Section 15.2(4) of the Divorce Act directs the court hearing a spousal support claim to take into consideration the condition, means, needs and other circumstances of each spouse, including:

a. the length of the spouses cohabitation;

b. the functions performed by each spouse during cohabitation; and

c. any order, agreement or arrangement relating to support of either spouse.

[211] An award of spousal support must:

a. recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;

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

c. relieve economic hardship of the spouses arising from the breakdown of the marriage; and,

d. promote economic self-sufficiency of each spouse within a reasonable period of time.

[212] In determining the issue of spousal support, the court is required by section 15.2(4) to consider the means, needs and other circumstances of each spouse. The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependants and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. These factors include, but are not limited to, the inability of a spouse to support him or herself due to professional and career sacrifices made during the marriage and the functions performed by the spouses during the marriage: see Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at paras. 36 and 39; Smith v. Smith, 2012 ONSC 1116, [2012] O.J. No. 800, at para. 69.

[213] The Ontario Court of Appeal has said that the factors and objectives outlined in the Divorce Act require a balancing of “the parties’ circumstances, including the duration of the parties’ cohabitation, their ages, their incomes and prospective incomes, the effects of equalization, the stages of their careers, contributions to the marital standard of living, participation in household responsibilities, the absence of child-care obligations, [and] the parties’ reasonable expectations”: see Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.), at para. 84.

[214] The Supreme Court of Canada has held that all of the stated objectives in section 15.2(6) of the Divorce Act must be considered since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective based on the particular circumstances of the parties: see Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at paras. 53-54; Bracklow v. Bracklow, supra, at para. 35; Smith v. Smith, supra, at para. 70.

Entitlement

[215] There are three conceptual bases for entitlement to spousal support:

(a) Compensatory: This is in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Specifically, compensatory support is intended to compensate a spouse upon relationship breakdown for contributions made to the relationship and to recognize sacrifices made and the advantages to one spouse and disadvantages to the other, both during and after the breakdown of that relationship. It is to compensate for foregone careers and missed opportunities during the marriage, and to serve as reimbursement for hardships accrued as a result of the marriage breakdown;

(b) Contractual: This entitlement may arise from express or implied agreements between spouses that purport to either create or negate a spousal support obligation; and

(c) Non-compensatory: This entitlement arises as result of the needs of a spouse, even if that need does not arise as a result of the roles adopted during marriage. This basis for spousal support is founded on the view that marriage is a relationship involving mutual obligations and interdependence that may be difficult to unravel when the marriage breaks down.

[216] The respondent argues strenuously that the applicant does not meet the threshold for entitlement to spousal support. He argues that the applicant does not qualify for compensatory support or for support based on need. There is no contractual basis for any support award.

[217] To justify an award of compensatory spousal support, the respondent says, it is not enough that one spouse suffers an economic deprivation or that the other spouse experiences a financial gain because of the roles adopted in the marriage. The deprivation or the financial gain must be significant: see Bruni v. Bruni, 2010 ONSC 6568, 104 O.R. (3d) 254, at para. 182.

[218] The two most common situations leading to an award for compensatory support are where one spouse gives up or compromises his/her education, training or career to raise the children of the marriage or does so to support the education, training or career of the other spouse: see Taylor v. Taylor, 2004 CanLII 42952 (ON SC), [2004] O.J. No. 4802 (S.C.), at para. 87. The respondent argues that neither of these situations is present in the case at hand. The applicant worked throughout the marriage and, he says, never sacrificed her own education or career to raise the children or to further the respondent’s career.

[219] I cannot agree with the respondent that there is no compensatory basis for spousal support in this case. While it is true that the applicant generally worked throughout the marriage, this does not necessarily lead to the conclusion that no sacrifices were made or that a disproportionate childcare burden did not fall on her shoulders.

[220] Indeed, the facts of this case demonstrate quite clearly that the applicant worked to support the family while the respondent completed his legal training, that she took time off work to care for the children and that she did shoulder a disproportionate share of the day-to-day child care responsibilities pre-separation.

[221] The parties were married in June 1985. The applicant worked from the beginning of the marriage. The respondent was called to the bar in 1987. The respondent became a partner in a large, well-established corporate/commercial law firms in downtown Toronto. The respondent admitted in his own evidence that, in the context of home and family life, he “wasn’t around a lot.”

[222] The parents had a nanny, to be sure, but it is clear that the respondent was required to work long hours to make partner and to meet the expectations of partners in his chosen law firms.

[223] The applicant, on the other hand, chose to leave regular outside employment after the birth of their children. She stayed home after the birth of their first child in 1991. Their second child was born in 1994. On the evidence before me, the applicant did not return to an outside job but, instead, in 1996, decided to start her own executive search business and to run it from the home. She ran this business from 1996 to about 2003.

[224] In my view, the evidence supports the conclusion that the applicant was financially disadvantaged, at a personal level, by the allocation of roles during the marriage. She spent more time at home with the children and, because of this, decided to work from the home for a number of years.

[225] There was some evidence about billings issued by the applicant for her business from 1998 on but it is unclear from the evidence what the annual net income from the applicant’s consulting business was prior to 2003. It appears to have been significant in some years (e.g., over $100,000) but quite modest in others (e.g., as low as $30,000).

[226] Although the respondent’s income tailed off just at the time of separation (indeed, his release from his last firm in 2004 appears to have triggered the marital breakdown), prior to that time this family had enjoyed an upper-middle-class lifestyle. The respondent has, since at least 2009 if not before, continued to enjoy an upper middle-class income. I find that the respondent’s lifestyle following separation, even while unemployed, did not suffer appreciably due to financial assistance from his father.

[227] Although the principle of equitable sharing which underpins modern spousal support concepts does not guarantee to either party the standard of living enjoyed during the marriage, the pre-separation standard of living is “far from irrelevant”: see Moge, supra, at para. 84. The longer the relationship endures, the closer the economic union of the spouses and the greater the presumptive claim to equitable standards of living upon its dissolution.

[228] This was a long-term marriage of almost 20 years. There was a complete merger of economic lifestyles which created a joint standard of living; this is a standard of living that the applicant, as the lower income earner during most of the marriage and for a significant number of years post-separation, is unlikely to be able to replicate on her own. This, it seems to me, leads to the conclusion that the applicant has suffered economic hardship as a result of the breakdown of the marriage and meets the threshold for receipt of spousal support.

[229] Most of the respondent’s other concerns can be dealt with through the determination of quantum and duration of spousal support.

Quantum and Duration

[230] The respondent relies on a line of authority for the proposition that increases in income from efforts made after separation cannot form the basis of a spousal support calculation: see Fisher v. Fisher, supra. The respondent argues that at the time of separation, he was unemployed and that it was only through his own efforts, post-separation, that he reinvented himself as a family law lawyer and was able to begin earning a substantial income again.

[231] I do not think this argument can succeed in this case for three reasons. First, the Court of Appeal in Fisher, supra made it clear that post-separation income is relevant to compensatory-based spousal support. I have found, on the facts of this case, that there is some basis for compensatory spousal support.

[232] Second, the reason post-separation income is not relevant to need-based support is because support on that basis is “generally restricted in quantum to the lifestyle enjoyed during the marriage”: see A.A.M. v. R.P.K., 2010 ONSC 930, [2010] O.J. No. 807, at para. 203, citing Phillip Epstein’s annotation to Fisher, supra.

[233] While the respondent became unemployed at the end of 2004 immediately prior to separation, throughout most of the marriage he was employed as an associate, then partner, at major corporate commercial law firms. The lifestyle enjoyed during the marriage was not at all reflected in the circumstances of the respondent at the date of separation. These parties enjoyed an upper-middle-class lifestyle during the marriage. They had well paying jobs. They lived in Forest Hill. Their children had a nanny and attended private school and summer camp.

[234] The respondent’s return to the practice of law as a family law lawyer did not bring about a new lifestyle – it was a return to a lifestyle they had previously, for many years, enjoyed during marriage.

[235] Finally, two significant factors in the analysis of whether a payor’s post-separation income is to be used in the determination of spousal support involve: a) whether the skills and credentials used to earn the post-separation income were acquired during the marriage; and b) whether the income flows from the continuation of a career or from an entirely new venture.

[236] While there is no doubt that the practice of securities and commercial law is different from family law, both before and after separation the respondent earned his living as a lawyer. He obtained his qualifications to practise in Ontario during the marriage. Many of the lawyering skills he acquired during the marriage – analysis of legal issues, analysis of complex statutes, clarity of language, drafting documents and legal judgment – are skills that any lawyer must have. In my view, the skills and credentials which formed the basis of the respondent’s post-separation income were, to a large extent, acquired during the marriage. In my view as well, the post-separation income flowed from the continuation of the respondent’s employment as a lawyer, not from an entirely new venture unrelated to what he did during the marriage.

[237] For these reasons, I find that the respondent’s post-separation income is relevant to the determination of spousal support.

[238] I am cognizant of the fact that:

(a) the SSAG are not mandatory – they are guidelines, albeit important guidelines which must be considered, which operate on an advisory basis;

(f) the SSAG do not take into account the distribution of property or the goal of self-sufficiency which underpins modern spousal support rules;

(g) the SSAG do not apply in cases where the payor’s income exceeds $350,000; and

(h) although the applicant sued for support in 2005, no motion for interim spousal support was ever brought; eight years have, therefore, gone by during which the applicant has neither sought, nor received, spousal (or child) support.

[239] In deciding the amount and duration of any spousal support payable in this case, I must consider not only the Guidelines but also such things as the strength of the applicant’s compensatory claim, the recipient’s needs and age, the age and stage of the parties’ children, and the need for incentives to achieve self-sufficiency.

[240] Although the parties were married for 20 years, the applicant was only out of the workforce from 1991 to 1996. Her subsequent work from the home appears to have generated significant income in some years, but only modest income in others. The applicant has worked since separation.

[241] While the applicant undertook a disproportionate share of the day-to-day childcare during the marriage, she had a full-time nanny to help and to free up her time for work and other purposes. The compensatory claim, while it exists, is not especially strong.

[242] The applicant is now 48 years of age (41 at separation). She has skills and experience which enable her to hold a good job in her field which earns $90,000 per year.

[243] The children are now adults. Jaclyn is completing her undergraduate education. Kyle has just begun his. Both children live out of Toronto during the academic session and spend more or less equal time with their parents to the extent the children are in Toronto during the summer at all.

[244] The applicant has substantial debts, although these are almost exclusively related to the cost of eight years of litigation (on which the parties have spent about $1 million each prior to trial).

[245] The applicant’s September 2012 financial statement discloses monthly expenses of about $9,500 ($113,900 per year). During her evidence at trial, however, the applicant testified that she had given up the lease on the home she lived in since 2005 and was about to move in with her new partner. There, she will contribute $2,000 per month towards housing costs. This should result in a reduction in her monthly expenses of up to $1,000.

[246] In her new job, the applicant earns $7,500 per month. Based on her budget, therefore, the applicant will suffer a shortfall of $1,000-$2,000 per month. Her budget, however, makes no provision for repayment of her substantial debts, for savings or for the payment of children’s post-secondary school and other expenses, which must be shared between the parties.

[247] Self-sufficiency incentives, combined with the specific timeframe giving rise to a compensatory claim in this case, the fact that the children are getting close to the end of their education and the applicant’s relative youth (married at 21, separated at 41 and 48 at date of trial), suggest that a time limited spousal support award is appropriate. Ten to eleven years reflects the period of time the applicant took off from work after the children were born together with several years when her self-employed income was quite low. This seems to me to be an appropriate time limit for the payment of spousal support: see Fisher, supra and Davies v. Quantz, 2010 ONSC 416, 100 R.F.L. (6th) 156.

[248] Since the respondent did not start to earn significant income sufficient to attract support obligations until 2008, I find that the payment of support obligations shall commence in 2008 and continue for 8 years.

[249] With respect to the specific monthly amount of support, I have considered the condition, means, needs and other circumstances of each spouse, the Guideline amount, the result of the equalization calculation and the distribution of property between the spouses, the age and stage of the applicant, the ages and stages of the children, the work histories of the parties, the length of the marriage, the functions performed by each spouse during the marriage, the economic disadvantages to the applicant resulting from the marriage breakdown and the promotion of the applicant’s self sufficiency.

[250] I conclude that, balancing all of these factors, the monthly and annual support amounts set out below appropriately reflect the statutory considerations, as developed in the case law, concerning the quantum of support to which the applicant is entitled in this case.

Year	A Income	R Income	Monthly Support Payable ($)	Annual
2008	122,453	219,602	1,000	12,000
2009	108,073	133,185	1,000	12,000
2010	71,302	309,394	5,000	60,000
2011	82,509	345,322	5,000	60,000
2012	84,000	414,322	6,000	72,000
2013			6,000	72,000
2014			6,000	72,000
2015			6,000	72,000
Total				432,000

[251] The respondent, in written submissions, argued in favour of a lump sum award, if any spousal support were ordered payable.

[252] This seems to me to be a case where there would be significant advantages to a lump sum award. Due to the high conflict nature of this bitter divorce, the amount of time that has already passed since separation and the fact that the children are now adults, the reduction or termination of ongoing contact or ties between the parties would be highly advantageous. A lump sum would also provide capital to the applicant to assist in dealing with her immediate obligations. The respondent has the means to arrange such a payment.

[253] The chief disadvantage of a lump sum is that needs and means may change over time. A lump sum effectively deprives the parties of the opportunity to apply for a variation.

[254] However, given the time limited duration of the spousal support order and the relative stability of the parties’ current incomes and lifestyle, this risk seems relatively low.

[255] In this case, the advantages of a lump sum award exceed the disadvantages. I find that a lump sum award to the applicant on account of past and future spousal support is the appropriate resolution of this issue: see Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221 and Beck v. Beckett, 2011 ONCA 559, [2011] O.J. No. 3752.

[256] There is some support in the authorities for adjusting a lump sum representing future support payments for the tax consequences as well as for future contingencies and present value.

[257] In this case, I do not think any adjustment is necessary. The period in question is relatively short. The lump sum I have awarded was determined based on my discretion taking into account a wide range of factors, not least of which was the consequences for the applicant of equalization and property division in this case. Five of the eight years have already gone by. Had there been discounting on account of taxes, the amount of support awarded would have been proportionately higher.

[258] Accordingly, the respondent owes the applicant $432,000 lump sum on account of and in complete satisfaction of her claims for spousal support.

Set-off

[259] There are a number of issues that have been resolved in these Reasons on a basis that is different than what may have been proposed at trial. In addition, in some cases, the applicant owes money to the respondent (s. 7 expenses, equalization) whereas in others, the respondent owes money to the applicant (child and spousal support).

[260] Given the ages and stages of the children and my disposition of ongoing spousal support issues by way of lump sum, among other things, it seems to me that this is a case ideally suited to the set-off of the parties’ various financial obligations to one another. I therefore direct that only the net amount, after set-off, shall be held ultimately owing by one party to the other as set out below.

Vesting Order

[261] Section 9(1)(d)(i) of the FLA provides the court with jurisdiction to vest property in a spouse.

[262] The Ontario Court of Appeal in Thibodeau v. Thibodeau, 2011 ONCA 110, [2011] O.J. No. 573, held that an equalization payment ordered in favour of the wife did not create a proprietary interest in the husband’s property. Accordingly, the wife had no priority against other unsecured creditors when the husband went bankrupt. The Court acknowledged that s. 9(1) of the FLA “clothes the court with its statutory authority to grant remedies in the context of an equalization of net family property application under s. 7 of the FLA” (para. 31).

[263] The respondent seeks a vesting order against the applicant’s interest in the matrimonial home, in this case, because the applicant has testified to substantial indebtedness (principally to her former lawyers) and advised the Court and the respondent during the trial that she was contemplating bankruptcy.

[264] Vesting orders under s. 9(1) should only be made where there is a real need for them, after all relevant considerations have been taken into account. They are not granted as a matter of course. It must be established, based on the target spouse’s previous actions and reasonably anticipated behaviour, that any equalization order is unlikely to be complied with in the absence of more intrusive provisions: see Thibodeau, supra, at paras. 41-42.

[265] In my view, it has not been established that there is a “real need” for a vesting order at this stage. While the respondent is owed a substantial equalization payment, he in turn owes substantial amounts on account of support and the post-separation increased value in the matrimonial home.

[266] In addition, while the applicant raised the prospect of a bankruptcy filing at the outset of trial, she did not pursue that course at the time and I have received no additional information, since closing arguments were completed, of any additional steps in that regard.

[267] For these reasons, I decline to make any vesting order at this time.

Assessment and Other Costs

Assessment Fees

[268] The parties jointly retained Dr. Sutton to provide an assessment for child custody and access purposes. Dr. Sutton was appointed by the court as an assessor in May 2005. He conducted extensive interviews throughout 2005 and 2006 and produced a report in December 2006.

[269] The parties settled custody and access matters in 2008.

[270] Dr. Sutton charged $90,000 for his services. The respondent paid Dr. Sutton’s fees without prejudice to his future rights to claim indemnity from the applicant for some or all of these fees.

[271] The respondent argues that the applicant should pay the entire cost of Dr. Sutton’s involvement. This claim is based on an argument analogous to the “offer to settle” rules.

[272] Before the cost of Dr. Sutton’s assessment was incurred, the respondent offered to settle the dispute over parenting time with the children on the basis that he would have the children six nights of 14 and the applicant would have the children eight nights of 14 (his offer was marked as Ex. 8 in the trial).

[273] In the end, after the cost of Dr. Sutton’s services had been incurred, the applicant and respondent agreed to settle child custody and access on the basis of shared parenting and equal time with both children.

[274] Because the respondent did “better” in the final result than his offer, the respondent argues that the applicant should pay for the full cost of Dr. Sutton’s services.

[275] These parties were locked in an extraordinarily vituperative battle over their two children from 2005 to 2008. That they were able to settle this aspect of their matrimonial dispute is likely attributable to many factors. A significant factor, I have no doubt, was the process the parties went through with Dr. Sutton and the product of his work in the form of his three volume December 2006 report.

[276] By settling child custody and access issues, the parties not only avoided enormous trial expense but, even more importantly, the emotional strain on themselves and the children of taking these issues through to a full trial.

[277] Dr. Sutton’s involvement conferred significant benefit on both parties. The why and wherefor of the parties’ ultimate settlement is complex and, essentially, unknowable.

[278] I do not think it is appropriate or particularly helpful, in a case of this kind, to go back through the history of the parties’ dispute over child custody and access and to analyze, years later with the benefit of hindsight, which party was the more or less reasonable, which party was the obstacle to an earlier resolution and who or what was responsible for the eventual settlement of these issues.

[279] I am not satisfied that whatever position the applicant took at the time, it should attract liability for the full amount of Dr. Sutton’s work. No doubt Dr. Sutton’s involvement contributed to the eventual settlement. Because both parties benefitted, both parties should share equally in the cost.

[280] I therefore find the applicant liable to reimburse the respondent in the amount of $45,000 for the cost of Dr. Sutton’s services.

Other Services Providers

[281] The respondent also seeks reimbursement for half the cost of other psychiatrists and psychologists who became involved in this case. I see no reason, on the same logic as with Dr. Sutton, why the applicant should not share equally in those expenses.

Accordingly, I find the applicant liable to reimburse the respondent for half of amounts he paid to Dr. Irving, Dr. Fidler, and Dr. Radovanovic. Her share of these expenses is $11,250.

Other Cost Issues

(i) Home Appraisal Fees

[282] The applicant acknowledged in her financial statement an obligation to reimburse the respondent for half of the cost of the 2005 appraisal of the matrimonial home. Accordingly, an order shall issue requiring payment by the applicant of $428 to the respondent.

(ii) Loan Advance (Mesbur J.)

[283] The applicant also acknowledges an obligation to repay a loan from the respondent of $3,500 ordered by Mesbur J. Accordingly, an order shall also issue requiring repayment of this amount.

(iii) Acura MDX

[284] By written agreement in 2005, the respondent transferred to the applicant, in April 2005, ownership of one of the parties’ two cars. The respondent kept the other. The two vehicles were roughly equivalent in value. The evidence was not challenged that the value of the Acura as of 2005 was $36,500. The respondent is entitled to a credit against his payment obligations to the applicant for this amount.

[285] The total owing by the applicant under the category of assessment and other costs is $96,678.

Third Party Claim – Gary Spira

[286] In 2008, the respondent amended his answer in these proceedings to add a claim against Gary Spira, a former neighbor of the Ludmers, seeking:

(a) damages of $50,000 for invasion of privacy;

(b) injunctive relief prohibiting Mr. Spira from intercepting or forwarding the respondent’s electronic communications and requiring the return of any intercepted communications;

(d) punitive and exemplary damages.

These claims were pursued at trial.

[287] In the body of the third party claim, the respondent alleges that Mr. Spira “improperly intervened in the respondent’s life with his children” including “truly actionable matters” such as “ignoring the respondent’s parental authority” and a whole range of other interventions which allegedly “straddle the line between immoral and ill-considered” and “actionable.”

[288] Although not specifically mentioned in the prayer for relief, the respondent also makes allegations in the body of the claim which arguably constitute a claim for intentional infliction of mental distress:

a) that Mr. Spira’s interventions were “very upsetting” and “damaging” to the respondent’s relationship with his children and were motivated by malice and done intentionally to cause upset to the respondent;

b) that the respondent has “suffered serious emotional upset” as a result of Mr. Spira’s intervention; and

c) that Mr. Spira’s conduct was a “deliberate and willful flaunting” of the respondent’s parental rights which constitute harassment and invasion of privacy “calculated to cause serious emotional distress and suffering.”

[289] The claims against Mr. Spira fall into two categories:

allegations that Mr. Spira invaded the respondent’s privacy by intercepting and reading the respondent’s private, and in some case privileged, electronic communications; and
allegations that Mr. Spira interfered in the respondent’s relationship with his children and was “blindly aligned” with the applicant in a campaign to interfere with the respondent’s parental relationship with his children.

1. Invasion of Privacy

[290] The respondent relies on the recent decision of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, which recognized a tort of “intrusion upon seclusion.” This tort is defined as follows at para. 19:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to the other person.

[291] The key elements of the tort are:

i) the defendant’s conduct must be intentional (including reckless);

ii) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; and

iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[292] There are two aspects to the invasion of privacy claim:

the allegation that Mr. Spira himself was accessing the respondent’s confidential e-mails; and
the allegation that Mr. Spira assisted the applicant by, at her request, faxing copies of some of the respondent’s e-mails to the applicant’s lawyers.

The Alleged “Hacking” of the Respondent’s E-mail Account

[293] The evidence is that for some period of time in 2005 and 2006, the applicant had access to the respondent’s email account and was reading his emails. Some of these emails were between the respondent and his father, discussing the matrimonial litigation. Some of the emails were between the respondent and his counsel, Mr. Joseph.

[294] I do not think the evidence supports the allegation that anyone “hacked” the respondent’s email account. I find that the applicant gained access to the respondent’s email account because she had his password. I find that Mr. Spira never had or exercised direct access to the respondent’s emails.

[295] In December 2005 the respondent noticed, at the bottom of an email which he had sent to the applicant, the words:

gary spira is reading your e-mails.

[296] Shortly thereafter, at the bottom of the same email, he saw the words:

he also sees your inbox.

[297] In August 2006, the respondent claims to have received an e-mail from gspira1@yahoo.com which said:

Gary Spira co-erces your wife into making all sorts of accusations against you. If I were you I’d make him pay. – a friend

[298] During the trial, the applicant admitted that she accessed the respondent’s email account using the respondent’s password. She admitted that she copied some of these e-mails and asked Mr. Spira to fax them to her counsel because, she said, they contained evidence of the respondent’s alleged bullying and abuse.

[299] The applicant also testified to the fact that at least one of her children also had access to the respondent’s emails.

[300] The applicant testified that Mr. Spira did not help her to gain access to the respondent’s emails nor, as far as she was aware, did he have access to the respondent’s email account.

[301] The applicant said she did not “remember” typing the lines “gary spira is reading your emails” or “he also sees your inbox” on the December 7, 2005 emails.

[302] The respondent argues that these lines were typed by the applicant. He argues that these so-called “admissions” of the applicant are true and that Mr. Spira was accessing his inbox and reading his emails. He points as well to the 2006 e-mail from gspira1@yahoo.com. The respondent speculates that because Mr. Spira was in the computer business (he was in data management), he knew how to hack into the respondent’s e-mail.

[303] All of these assertions are flatly denied by Mr. Spira. Mr. Spira testified that he did not see the respondent’s inbox or read his emails. He swore that he did not send the 2006 e-mail and never had an e-mail address gspira1@yahoo.com. He swore that he did not help the applicant access the respondent’s email account. The only assistance he ever provided, he said, was to fax, on four occasions at the applicant’s request, documents which he understood to be copies of the respondent’s emails, to the applicant’s lawyer.

Analysis

[304] I do not think the respondent has proved that Mr. Spira ever had access to or read or intercepted the respondent’s e-mails. The relationship between the applicant and respondent was at that time vitriolic. The respondent’s relationship with his children at the time, especially his then teenage daughter, was, by his own admission, also extremely difficult and, at times, acrimonious.

[305] There is no direct evidence that Mr. Spira ever had access to the respondent’s emails. The fact that Mr. Spira was in “the computer business” is probative of nothing. The respondent’s belief that Mr. Spira was reading his e-mails is complete speculation. Any inferences to be drawn implicating Mr. Spira are equally, if not less consistent with inferences that the applicant, or the parties’ children, were saying these things to “punish” the respondent. The respondent himself admits that the children “threatened to go to” Gary Spira’s house or to “call” Gary Spira when they were upset with him.

[306] The respondent produced only paper copies of the “Spira” emails. The original electronic versions, which are the only versions that could possibly cast forensic light on the origins of these documents, were not preserved or ever analyzed.

[307] There is simply no evidence to support the conclusion that Mr. Spira had access to the respondent’s email account, that he was reading the respondent’s emails or that he was helping the applicant to do so. I find, as a fact, that Mr. Spira did none of these things.

[308] The respondent’s claim for invasion of privacy on this ground is dismissed.

Faxing Copied E-Mails to Applicant’s Lawyer

[309] The second branch of the respondent’s invasion of privacy claim is that Mr. Spira knowingly assisted in the invasion of his privacy by helping the applicant to forward copies of intercepted emails to the applicant’s lawyer.

[310] There is no doubt Mr. Spira did so. He admits it. He says, and I accept, that he did not read the content of the emails but that he understood from the applicant that these were copies of intercepted communications from the respondent which tended to show the respondent’s bullying and abusive behavior. He frankly admits that he sided with the applicant in her marital dispute with the respondent and that he sent the faxes in the belief that he was helping her with the prosecution of her case against the respondent.

[311] The question is, does the act of faxing a photocopy of communications intercepted by the applicant to the applicant’s lawyer constitute the tort of invitation of privacy? In my view, it does not.

[312] It was the applicant, not Mr. Spira, who intentionally intruded upon the respondent’s private affairs. The assistance provided by Mr. Spira was not to assist in the applicant’s intrusion (I have found that Mr. Spira did not help the applicant to gain access to the respondent’s emails) but in forwarding copies of those communications to the applicant’s lawyers for the purpose of helping her with her legal case against the respondent.

[313] Such conduct does not, in my view, fall within the definition of the tort of intrusion upon seclusion as articulated by the Court of Appeal in Jones v. Tsige, supra. The act of putting documents in a fax machine to the applicant’s lawyer was not of itself a “deliberate and significant invasion of personal privacy.”

[314] I, therefore, dismiss this ground of the respondent’s claim against Mr. Spira as well.

2. Interference with Respondent’s Relationship with his Children

[315] Under this head of claim, the respondent originally sought a permanent injunction under s. 35 of the Children’s Law Reform Act, restraining Mr. Spira from certain types of contact with the Ludmer children and from interfering with the respondent’s relationship with his children.

[316] The respondent testified that the complained of behavior stopped not long after the claim against Mr. Spira was served. No interim relief was ever sought. The children are now adults. In argument, the respondent abandoned any request for relief under s. 35 of the CLRA.

[317] The respondent does, however, seek damages for intentional infliction of mental suffering and punitive and exemplary damages in connection with Mr. Spira’s conduct.

[318] The complained of conduct is that:

Mr. Spira allowed the children to come to his house if they were having a fight with their father;
Mr. Spira helped Kyle with a science project “knowing” that the respondent wanted to help;
Mr. Spira occasionally took the children to doctor or dentist appointments and;
at Jaclyn’s request, Mr. Spira drove Jaclyn to school one morning (following a fight with her father) over the respondent’s objections.

[319] In Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, the Supreme Court of Canada dismissed as untenable at law an action in which a husband sued his former wife and her new partner for frustrating his access to their children.

[320] The majority reasons were delivered by La Forest J. At paras. 6 to 10, La Forest J. detailed serious policy concerns that would arise if civil claims for damages of this kind were to be allowed. But what really determined the matter, he went on to say, was that any possible judicial initiative has been overtaken by legislative action.

[321] In all the provinces, legislation has been enacted to provide for custody of and access to children. In Ontario, the Children's Law Reform Act, R.S.O. 1990, c. C-12, now deals with the matter in a comprehensive manner. In particular, the courts are given the role of ensuring that issues involving custody of and access to children are determined on the basis of the best interests of the children. Numerous remedies are provided for the enforcement of orders granting custody or access. The court can give such directions as it considers appropriate for the supervision of those having custody of or access to children. It may, on application, make an order restraining any person from molesting, annoying or harassing the applicant or a child in the applicant's custody. It may also empower the applicant or someone on his or her behalf to apprehend a child to give effect to the applicant’s entitlement to custody or access. In certain circumstances, it may direct the sheriff or the police to do so and empower them to enter and search any place where they have reasonable and probable grounds to believe a child may be, and to use such assistance or force as may be reasonable in the circumstances. The court may also take steps to prevent the child from being removed from the province. In addition to its common law powers in respect of contempt, the court is specifically empowered to impose a fine or imprisonment for willful contempt of or resistance to its process or orders in respect of custody or access.

[322] La Forest J. concluded that the legislature intended to devise a comprehensive scheme for dealing with these issues. If it contemplated additional support by civil action, he said, the legislature would have made provision for this, especially given the rudimentary state of the common law. Indeed, the Ontario legislature went out of its way to abolish all the relevant, if inadequate, remedies then existing at common law. This legislative action shows a clear disposition not to permit recourse to the courts for civil actions of this nature.

[323] Paras. 9 and 10 of La Forest J.’s judgment are particularly apposite in the present context. He wrote:

It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child’s welfare may well have been considered reason enough for the law’s inaction, though there are others.

There are also serious difficulties in defining such a tort. At what stage and for what actions should one be able to claim interference with access? Is advice or encouragement to a child sufficient? It is notorious that free, and not always disinterested and wise advice abounds in a family setting. There are degrees of interference, of course, and some interference is malicious and some is not, but where the line is to be drawn defies specification. It seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child’s benefit stops and malicious obstruction begins is virtually impossible to divine. This is especially so because, as Alan Milner, ante, at p. 429, has pointed out, “when there is dislike, a desire to injure is never far behind.” Besides, the awarding of damages will do little to bring back love and companionship, but it may, in some cases, well deprive a child of the support he or she might otherwise obtain from a custodial parent and relatives. If, on the other hand, the action is generally limited to the recovery of expenses, it will be of little use to most parents given the costs, in time and money, of court actions. These and other practical considerations are sufficient to raise serious doubts about whether an action at law is the appropriate way to deal with this type of situation. This probably explains the reticence of the courts in finding a remedy at common law.

[emphasis added.]

[324] The respondent argues that Frame v. Smith is restricted to civil claims as between family members, not third parties like Mr. Spira. Accepting that merely supporting one spouse in favour of another is not sufficient to attract liability, the respondent nevertheless argues that Mr. Spira “crossed the line.”

[325] Both these arguments are considered, and rejected, by the Supreme Court of Canada in Frame v. Smith.

[326] La Forest J., in referring of the undesirability of provoking suits within the family circle, specifically speaks of not only parents suing former spouses but the grandparents, aunts and uncles “to say nothing of close family friends” for interfering with rights of access (para. 9).

[327] La Forest J. also addressed the “crossing the line” argument at para. 10 when he said “where the line is to be drawn defies specification.” “[W]here the point is reached,” he said, “where permissible advice intended for the child’s benefit stops and malicious obstruction begins is virtually impossible to divine.”

[328] In my view, Frame v. Smith is effectively on all fours with the present case. It is a complete answer to the respondent’s claims of interference with his access to and the relationship with his children. There is no civil claim for damages available.

[329] The respondent’s remedy, which he pleaded in this case, was to seek to restrain interference by Mr. Spira under s. 35 of the CLRA. That remedy was, however, never pursued. The offending behaviour apparently stopped when the claim was issued. In any event, no interlocutory relief was ever sought. The claim for a permanent restraining order was abandoned at trial.

[330] For these reasons, the respondent’s claim for damages for emotional distress and for punitive damages, etc. is also dismissed.

Conclusion

[331] In conclusion, I make the following findings, orders and declarations:

The marriage contracts of June 13, 1986 and August 28, 1986 are valid and enforceable in accordance with their terms. The marriage contract of June 13, 1986 excludes from the respondent’s net family property the value of any asset held on his behalf by the LCT or by 3488 and any asset traceable to such assets;
The matrimonial home, 517 Brookdale Ave., Toronto, is owned 50/50 by the parties. The respondent owes the applicant $244,500 with respect to the post-separation increase in market value of the matrimonial home;
The applicant owes the respondent $270,118 by way of equalization;
The respondent owes the applicant $66,520 for child support to December 31, 2012;
Ongoing child support in the amount of $2,163 per month for four months shall be paid by the respondents with respect to Kyle while enrolled in full time undergraduate studies. This is based on incomes of $90,000 for the applicant and $379,822 for the respondent. This support shall be paid in an annual lump sum in the amount of $8,652 on June 30 of 2013, 2014 and 2015;
The applicant owes the respondent $181,790 on account of s. 7 expenses from 2005 to 2012. Ongoing s. 7 expenses shall be apportioned in accordance with the parties’ incomes as found in these Reasons.
The respondent owes the applicant $432,000 on account of lump sum spousal support.
The applicant owes the respondent $96,678 on account of her share of the assessment fees and certain other costs.
The above amounts shall be set off one against the other. The net amount owing to the applicant by the respondent is $194,434. This amount shall be paid to the applicant within 30 days. Upon payment of this amount, 100% of the ownership of 517 Brookdale Ave. shall vest in the respondent and all financial obligations between these parties, other than ongoing child support and apportioned liability for ongoing s. 7 expenses, shall be at an end.
The application for a vesting order is otherwise dismissed.
The claims against Gary Spira are dismissed.

Costs

[332] There is an outstanding issue relating to the respondent’s claim for costs against the applicant’s former solicitors personally. Counsel for the relevant parties shall confer and seek to agree on a process for the resolution of that issue. A pre-hearing appointment can be made through my assistant if the matter needs to be spoken to.

[333] I encourage the parties to the matters resolved in this Judgment to seek an accommodation on costs. In the absence of an agreement, however, any party seeking costs shall do so by filing a brief written submission (not to exceed five typed, double-spaced, pages) together with a Bill of Costs and any supporting documents within 30 days of the release of these Reasons. Any party wishing to respond to a request for costs may do so, subject to the same page limit, within a further 15 days.

Penny J.

Released: February 11, 2013

COURT FILE NO.: 05-FD-304485FIS

DATE: 20130211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA LUDMER

Applicant

– and –

BRIAN LUDMER

Respondent

and -

GARY SPIRA

Third Party

JUDGMENT

Penny J.

Released: February 11, 2013

[1] I note here that section 51 of the Family Law Act refers to ownership in and division of “property” and does not purport to exclude from private contracting, or treat differently in any way, ownership of the matrimonial home.

Ludmer v. Ludmer, 2013 ONSC 784

Case Summary

Background

Issues

Validity and Enforceability of Marriage Contract

The Basis of the Challenge

Analysis

The Use of Trust Property

Ownership of the Matrimonial Home

b) Child Support

d) Spousal Support

Entitlement

Quantum and Duration

1. Invasion of Privacy

2. Interference with Respondent’s Relationship with his Children

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 12

Legal Tests 3

Legislation 3