ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-16525
DATE: 20140416

B E T W E E N:

Jose octavio meza
Applicant

• and -

lourdes lavie
Respondent

Barry Lynn, for the Applicant
Appearing in Person

HEARD: March 26, 27 and 28, 2014

STEVENSON J.

REASONS FOR DECISION

Introduction

[1] The applicant, Jose Octavio Meza ("Mr. Meza"), issued an Application on January 8, 2010 seeking spousal support and equalization of net family property or, in the alternative, unequal division of net family property, freezing of assets, the sale of family property and the sale of the matrimonial home, occupation rent, prejudgment interest and costs. At trial, Mr. Meza indicated that he was no longer seeking spousal support and that the matrimonial home had been sold.

[2] The respondent, Lourdes Lavie ("Ms. Lavie"), filed an Answer, dated October 7, 2010, seeking a divorce, spousal support for a duration of three years, indexing of support, medical and dental coverage, equalization of net family property, pre-judgment and post- judgment interest and costs.

Facts and Position of the Parties

[3] Mr. Meza is 65 years of age and Ms. Lavie is 49 years of age. The parties were married on August 10, 1994. Mr. Meza states that the parties separated on September 15, 2009 while Ms. Lavie states that the date of separation was September 21, 2009. The parties were married for fifteen years.

[4] Pursuant to the order of Backhouse J. dated March 19, 2014, Mr. Meza provided his evidence-in-chief by Affidavit and Ms. Lavie cross-examined him. Also pursuant to the order, Ms. Lavie opted to provide her evidence-in-chief orally.

[5] Mr. Meza served a Request to Admit dated January 3, 2014 on Ms. Lavie. There was some confusion as to the date of service. Counsel for Mr. Meza indicated that Ms. Lavie served him with a Response to Request to Admit but it was served late. Again, there was some confusion as to the date of service and Ms. Lavie was confident that she served the Response to Request to Admit within the time prescribed by the Family Law Rules. Counsel for Mr. Meza also indicated that Ms. Lavie's responses were not of assistance. I made a ruling at trial allowing Ms. Lavie's Response to Request to Admit to be filed and considered by the Court.

[6] In her Response to Request to Admit, Ms. Lavie admitted that the parties jointly owned the matrimonial home located at 124 Charlton Boulevard in Toronto, Ontario. She further admitted that the matrimonial home was sold on September 30, 2010 and that the proceeds of approximately $136,000 are currently being held in trust with the parties' real estate lawyer. She further admitted that Mr. Meza solely paid the mortgage and property taxes for the home from the date of separation until its sale. Ms. Lavie also admitted that she is readily available to work full-time in Canada. She further admitted that she previously earned income by housing boarders at the matrimonial home but as the home has been sold, this is no longer a viable income option for her.

[7] I note that Ms. Lavie did not admit specifically in paragraph 2 of her Response to Request to Admit that any documents were genuine nor did she deny that any documents were genuine in paragraph 4 of her Response to Request to Admit. I do note that Ms. Lavie refused to admit, in paragraph 6, that the documents pertaining to Mr. Meza's pension plan, some documents pertaining to the line of credit and documents pertaining to Mr. Meza's RRSP were genuine. Counsel for Mr. Meza submits that Ms. Lavie admitted that the other documents set out in his Request to Admit are genuine, presumably as she only referenced these three concerns in paragraph 6 of her Response to Request to Admit.

[8] The main issues in contention are the issues of equalization of net family property, post-separation adjustments, as Mr. Meza contends that he paid for the majority of the carrying costs with respect to the matrimonial home pending its sale, occupation rent and spousal support for Ms. Lavie.

[9] Mr. Meza is currently employed as an industrial designer on a contract basis and earned an income of approximately $52,912.85 gross in 2013. Ms. Lavie's Financial Statement, sworn February 21, 2014, indicates that she received an income of $157 per month for a total of $1,884 gross per year in 2013 operating a business under the name of ISSCA. She also indicates that she receives spousal support in the amount of $737 per month from Mr. Meza. The parties agree that the amount of $737 per month in spousal support has been paid by Mr. Meza to Ms. Lavie since January 1, 2012. This amount was agreed to by the parties and determined on the basis of Mr. Meza having an annual income of $54,995 gross and Ms. Lavie being imputed an annual income of $21,320 gross based on a minimum hourly wage of $10.25.

[10] In her closing submissions, Ms. Lavie indicated that she is seeking spousal support in the amount of $737 for another year and a half. Mr. Meza contends that his income has been reduced somewhat since he agreed to pay $737 per month. It is his position that Ms. Lavie only claimed spousal support for three years and that he should pay this amount until the end of December 2014 as he has been paying support since January 1, 2012. Alternatively, he contends that his spousal support obligation should be terminated if the Court characterizes his post-separation payment of the carrying costs of the matrimonial home or entitlement to occupation rent as being in lieu of spousal support payments. He asks that the Court also consider that he will be turning 66 years of age and he will soon be facing retirement as his employment may be terminated or his contract not renewed.

[11] At the time of separation, Ms. Lavie boarded students in the matrimonial home through her company ISSCA and was receiving income from the boarders. She attempted to obtain financing in order to purchase Mr. Meza's interest in the matrimonial home but was unable to do so. It is her position that she has not been able to continue with her business as she no longer resides in the matrimonial home.

[12] With respect to equalization, Mr. Meza previously resided in Chile and had a pension. There is no agreement between the parties with respect to the value of the pension, both at the date of marriage and at the date of separation. Mr. Meza testified that he used some of his Chilean pension funds during the marriage in order to assist with the purchase of the matrimonial home and for other purchases enjoyed by the parties. This is disputed by Ms. Lavie. Ms. Lavie seeks one-half of the proceeds from the sale of the matrimonial home and a portion of Mr. Meza's RRSPs. Mr. Meza's position is that his net family property value is less than that of Ms. Lavie's and that he is owed an equalization payment. Additionally, he seeks post-separation adjustments as he contends that he has paid for the carrying costs of the matrimonial home and other monies are due to him as expenses of Ms. Lavie were paid out of the proceeds from the sale of the matrimonial home. Mr. Meza also seeks occupation rent from Ms. Lavie for a twelve-month period from the date of separation to the sale of the matrimonial home.

(Decision continues exactly as in the source text.)

Released: April 16, 2014
Stevenson J.