SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: Cole v. Cole, 2014 ONSC 1404
COURT FILE NO.: FS-07-FA014856-FIS0
DATE: 20140307
RE: Eric David Cole, Applicant
- AND -
Mara Anita Cole, Respondent
BEFORE: Frank, J.
COUNSEL:
Applicant in person
Diane E. Klukach, for the Respondent
HEARD: January 28, 29, 30, 31, February 3, 4, 5, and 6, 2014
ENDORSEMENT
[1] Eric and Mara Cole[^1] had been married for 22 years when they separated finally in April 2003. Since then their lives have been dominated by the consequences of that separation. By the time this application was commenced in 2007, the relationship between husband and wife was shattered and the husband had not seen his three sons for nearly four years.
[2] The litigation has been acrimonious and has not brought satisfaction to either side.
[3] The issues at this trial are limited to support and equalization. The trial was not an adjudication of the alleged injustices to which each side claims to have been subjected by the other, even though it sometimes appeared that this is what both sides sought from the process.
[4] Eric is claiming reimbursement for overpayment of support of roughly $400,000 based on his average actual earnings since separation. Mara came into this trial claiming retroactive child and spousal support based on imputing earnings to Eric of $250,000 annually and ongoing support based on the same earnings. She seeks to have support secured by a transfer of Eric’s interest in the matrimonial home to her.
[5] The equalization issue is with respect to the value of Eric’s interest in his business on the date of separation and whether an amount Eric paid to Mara was an advance on equalization.
The Parties
[6] The Coles were high school sweethearts. Their marriage was troubled for many years before the separation, if not from the outset. Eric is now 55 years old. Mara is 54.
[7] Their sons were born in 1991, 1994 and 1997. Mara is fiercely proud of them and their many accomplishments. The eldest, Evan, is completing medical school at McMaster University; the middle son, Darren, is in his third year of commerce at Queens University and the youngest son, Griffin, is in grade 11.
[8] Eric has not seen his sons since shortly after the marriage breakdown. This is in spite of December 4, 2007 order of Herman J. that the children immediately commence reunifcation therapy with Dr. Barbara Jo Fidler who was also to assist Eric and Mara in the implementation of a reunification plan. Eric maintains that Mara has turned his sons from him. He points to the critical, accusatory and demanding e-mails that Mara sent to him, with copies to their sons. Mara insists that their refusal to have a relationship with Eric is entirely a result of his conduct.
Eric’s earnings
[9] Eric, like Mara, has an undergraduate and an MBA degree. Mara was employed until their first child was born. From then, Eric was the sole income earner in the family.
[10] Eric began his career as an employee in a series of small-sized family owned companies. There is some dispute as to why each job ended. Eric testified that he was fired from the second and let go from the third. Mara testified that Eric chose to leave each job. Either way, according to Eric his experience as an employee made him realize that he was not well suited to be an employee and could not function successfully in the structured employment environment. As a result, he decided to start his own consulting firm. In 1989 he established EDC Marketing Enterprises and began providing marketing consulting services.
[11] I accept the following uncontested evidence with respect to EDC. Eric obtained retainers by networking and using family connections. With only several exceptions, the companies that hired Eric were smaller-sized. In the first 12 years of EDC, Eric worked for approximately 15 clients in total. With only a few exceptions, they were smaller sized companies. None retained him a second time. He never had more than three clients at a time and there were gaps between client retainers.
[12] No financial information for EDS is available with respect to the years prior to the fiscal year ending September 30, 2001. According to Eric, there were gaps in his income in the years before the marriage breakdown. He testified that there were periods when he had difficulty functioning and understood this to be a result of depression, based on the diagnosis and treatment he was given at the time. He felt his depression was a response to work and marital difficulties. For her part, Mara has no recollection of Eric showing any signs of depression.
[13] Eric testified that until he had what he described as “a few staggeringly good years” around 2000, his income for income tax purposes had not been more than $75,000. This is not an accurate indicator of his income, however, as it does not reflect the consulting fees attributed to Mara for incoming splitting purposes or the personal benefit from some of the deducted expenses. In Eric’s best years his actual income was over $300,000. These earnings were a result of Eric having succeeded in obtaining exceptional retainers from large companies.
[14] Regardless of what Eric’s mental health was in the years before the marriage breakdown, he and Mara agree that Eric earned enough for them to have an affluent lifestyle that included club memberships and vacations for the family.
[15] When they finally separated, Eric promised Mara that her and the children’s lifestyles would not change as a result of the marriage breakdown. Mara’s focus has been on this promise and Eric’s failure to live up to it. It appears to have fuelled her disbelief, outrage and resentment over the changed circumstances she and their sons have faced.
[16] Eric describes himself as going into a tailspin when the marriage ended. He testified that his depressive symptoms were exacerbated by Mara’s harassment of both him and his family and by his estrangement from his children. These and the financial stresses he felt caused his self-confidence to suffer and reduced his ability to focus and perform consistently. He insists that in spite of this, he worked diligently to earn an income. But, he has not been successful and has survived only by borrowing heavily from his family.
[17] As a result of a settlement reached during the course of the trial, Eric’s income for the purposes of support has been agreed to as follows[^2]:
2001: $342,118
2002: $270,251
2003: $84,952
2004: $147,023
2005: $68,506
2006: $117,240
2007: $73,738
2008: $127,546
2009: $0
2010: $79,548
2011: $273
2012: $66,976
[18] Based on Eric’s sworn financial statement dated December 15, 2013, his earnings in 2013 were $4,500.
[19] Eric’s average earnings, based on the agreed to amounts, from 2003 through 2012 were $76,580. His average earnings for the four years ending in 2012 were $36,699. Taking just the last three years ending 2012, they were $48,932. Using $4,500 as Eric’s earnings for 2013, his average earnings in the last three years were $23,916.
[20] Since October 15, 2013, Eric has been working in Japan as a Berlitz employee teaching business English as a second language. His current annual income is $32,000. He testified that he is working on augmenting it through obtaining private students. He hopes that within one or two years his income will reach $40,000. He has set himself a five year commitment to this work.
(continued verbatim through paragraph [197] and the footnotes exactly as provided in the source HTML)
FRANK J.
Date: March 7, 2014
[^1]: I will refer to Mr. Cole and Ms. Cole by their first names to make the narrative of this judgment easier to follow. I mean no disrespect in doing so.
[^2]: These amounts are for the business year ending September 30, and not the calendar year.
[^3]: 2002 41868 (ON CA), 61 O.R. (3rd) 711, at para. 28
[^4]: Mr. Chiarelli also spoke with Eric’s brothers and refers to Stephen Cole’s views of Eric’s limitations. That evidence is not before me. In my view, the evidence is not significant to Mr. Chiarelli’s conclusions and the fact that it cannot be considered does not undermine the reliability of Mr. Chiarelli’s opinion.
[^5]: I find that the evidentiary basis for Mr. Chiarelli’s assumption that Eric quit the PWC job because he was unable to perform and felt he had no choice, has been established for reasons that I set out below.
[^6]: 2011 ONSC 4794, at para. 5
[^7]: See, for example, entries for March 2004, October 11, 2006, September 2007, November 2010, Dec. 16, 2010.
[^8]: For example, entries for Nov. 26, 2010, April 19, 2011 and April 29, 2011.
[^9]: January 15, 2013 entry
[^10]: July 12, 2011 consultation note
[^11]: for example, entries of December 16, 2010, March 16, 2011, April 29, 2011, and Jan. 4, 2013.
[^12]: 2013 ONCA 715
[^13]: 1999 35007 (ON SC)
[^14]: This conclusion is not affected by my finding with respect to equalization that $58,000 of the $625,000 agreed to have been paid by Eric is to be reimbursed to him on the basis of it having been an advance on equalization.
[^15]: This is with the exception of the $58,000 referred to above and discussed under the heading ‘equalization’.
[^16]: 2006 42240 (ON CA), 82 O.R. (3d) 641, at para. 32