ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 397-11
DATE: 2014-06-03

BETWEEN:

Paul Robert Finamore
Applicant

– and –

Sylvia Catherine Finamore
Respondent

Ian J.H. Brown, for the Applicant

Sylvia Catherine Finamore, acting in person

HEARD: January 23,24,29, 2014
February 5,18, 2014

belleghem j.

Background

1. This is a divorce action. The applicant Paul Robert Finamore, was born June 22, 1957 and at the time of the trial was 56 years of age. The respondent, Sylvia Catherine Finamore was born August 29, 1957 and at the time of trial was also 56 years of age.

2. The parties were married on September 16, 1978 and separated on September 7, 2009 after almost 31 years of marriage.

3. There are two children of the marriage, Dean who was born July 30, 1985, and Paula, born August 27, 1988. Dean is presently 29 years of age and self-supporting, although he lives with his mother. Paula, who is presently 25 years of age, suffers from Down’s Syndrome, and also lives with her mother. She will never be able to become self-supporting or independent. She receives ODSP benefits under the Ontario Disability Support Plan Act 197, SO. 1997 c. 25. (“ODSP ACT”), as well as expenses for special activities through a program known as “Passport”.

4. During the marriage, the parties mortgaged their home and purchased a business, which became Marshall Finamore Construction (“MFC”). In the late 1990’s MFC had as many as 60 employees. Although the business was quite successful in the early years, it ran into difficulties, which apparently commenced around 2007, and eventually went into bankruptcy in 2012, three years following the separation.

5. After the business failed the applicant Mr. Finamore, with most of MFC’s employees, went to work with Davan Landscaping. He worked for Davan at a salary of $83,000 for several months until his employment there was terminated. In June 2013, he began work with another company, Kiwi-Newton Group, where he is still employed, making $70,000 per year.

6. The respondent , Mrs. Finamore,worked with CIBC for approximately 25 years, working her way up from teller, to become a financial officer. She ceased working at CIBC in 2001. She then worked with MFC, initially full-time and then eventually part-time. At the present time she is not employed outside of the home, and spends most of her time looking after her adult disabled daughter, Paula.

7. The matrimonial home was sold in May 2013. Mr. Finamore presently rents from a woman with whom he apparently has some kind of a relationship, while Mrs. Finamore lives with her son Dean and her daughter Paula in her grandmother’s basement apartment.

8. There were very few proceeds left over from the sale of the matrimonial home, as virtually all of the company assets and personal assets were used to pay creditors of the company because of personal guarantees of the parties.

9. When Justice Skarica ordered the matrimonial home sold in December 2012, he also ordered the applicant, Mr. Finamore, to make child support payments of $800 per month, and spousal support of $1158 per month starting January 1, 2013. He also awarded costs to the applicant of $3,500, to be paid from Mrs. Finamore’s share of the house sale proceeds. In addition, he ordered almost $36,000 to be held back from Mrs. Finamore’s share of the matrimonial home sale proceeds. This was to be held back pending an explanation by Mrs. Finamore as to how she was managing Paula’s ODSP and Passport funds.

10. She was to provide an affidavit detailing Paula’s special expenses, details of receipts and expenditures from the accounts into which and out of which Paula’s ODSP money was received, and why Mrs. Finamore used much of Paula’s ODSP payments apparently for personal use.

11. During the course of the trial, much time was taken by both parties dealing with the issue of compliance of Justice Skarica’s order. I am satisfied that the explanation called for in Justice Skarica’s order has been provided. Therefore the terms of his order in that regard have been satisfied. I will deal in detail with the parties’ positions, with respect to Paula’s ODSP and Passport payments in due course.

12. While it was agreed between the parties that the parties would share joint custody of Paula, it was also agreed that her present living arrangements with her mother would continue indefinitely, with access to be arranged directly between Mr. Finamore and Paula. Justice Skarica, also because of the concerns raised by Mr. Finamore with respect to Mrs. Finamore’s use of Paula’s ODSP money, ordered that an account be set up in the name of Paula and Mr. Finamore for Paula’s ODSP money. However, ODSP would not comply, and as a result, Paula’s ODSP monies are still managed by Mrs. Finamore. Although this term in Justice Skarica’s order has not been complied with, I am satisfied that the present arrangements by which Mrs. Finamore deals with Paula’s money, and maintains the account for her, should continue, for reasons I will set out later. This judgment will therefore supersede the interim order of Justice Skarica, with respect to management of Paula’s ODSP funds.

13. There were essentially four issues at trial:

i. Child support;

ii. Spousal support;

iii. Equalization; and

iv. Post separation financial adjustments

14. With respect to child support, Mr. Finamore’s position was that child support should be terminated, because ODSP and Passport pay more than enough to cover what may otherwise be his child support obligation. If it were terminated, he offered to pay $400 per month into an RDSP fund which would be available several year’s down the road in the event that Paula’s parents were unable to provide for her. Mrs. Finamore took the position that child support should continue, and that the ODSP money should not reduce Mr. Finamore’s child support obligation. She also argued that in any event it made no sense to set aside future funds in the way suggested by Mr. Finamore, because ODSP would always be available if the parents were unable to support her.

15. With respect to spousal support, Mr. Finamore took the position that Mrs. Finamore’s 25 years’ experience with CIBC more than qualified her to be able to earn at least $25,000 a year. He said that she should therefore be imputed an income of $25,000 a year ,and that although spousal support be continued, it should be at the low end of the Spousal Support Guideline range. Mrs. Finamore argued that she was required to deal full time with Paula’s issues, and although she wanted to work, and was looking to work, she should be entitled to long term support at the high range of the Spousal Support Guidelines.

16. With respect to equalization the parties were initially $200,000 apart. As will be seen in my analysis of the equalization issue, virtually all of the matters pertaining to the calculation of equalization, were resolved at trial.

17. With respect to post separation financial adjustments, much evidence was led by both Mr. Finamore and Mrs. Finamore. There are two major financial adjustments which I have made. One deals with a judgment against Mr. Finamore personally by a company called Emco, arising from a construction lien breach of trust action, brought personally against Mr. Finamore. The other is a claim by Mrs. Finamore that Mr. Finamore, after separation was still using company funds to pay for personal expenses. There were many other instances where Mrs. Finamore made claims of mismanagement on the part of Mr. Finamore of the company finances, which she argued should entitle her to compensation. I have dealt with as many of these as I found had any merit whatsoever, and have made various dispositions based on my findings from the evidence presented.

Child Support

18. Paula is personally 25 years of age and living with her mother. She does unpaid work for Shopper’s Drug Mart, who supply her with a uniform and give her special discounts and other benefits. As well, she takes tutoring at Sylvan Learning where she also volunteers doing odd jobs. She receives approximately $800 per month in ODSP benefits. According to Mr. Finamore, the child support order of Justice Skarica of $800 per month was based on Mr. Finamore’s understanding that if he paid $800 per month that the ODSP money would be saved in a joint account for Paula’s benefits so that Paula would have financial support sometime in the future if her parents were unable to provide for her.

19. I agree with Mrs. Finamore that Mr. Finamore's request to set aside the ODSP payments, or $400 in lieu of all or part of his child support obligation is untenable. I cannot imagine that ODSP would sanction payments being set aside for the future when they are paid on a present basis to meet the present needs of the recipients. ODSP payments are based on a needs and means test. If the recipient was in a sufficiently good financial position to be able to set aside all of the payments being received from ODSP, then by definition, the recipient would not “need” the ODSP payments in the first place, and would not receive them. This is echoed in the Divisional Court decision in Senos v. Karcz 2013 ONSC 259 at para. 24. There, Justice Pardu refers to the payor’s argument in that case as being “circular”. At para. 24, she states:

It would be circular to reduce support payments because of ODSP payments received by the adult child when those ODSP payments would properly be reduced by the extent to which support payments are applied by the recipient parent for the benefit of non-exempt living expenses of the child.

20. Under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 2(1) Paula continues to be a “child of the marriage”.

21. As a “child of the marriage” she is entitled under the Federal Child Support Guidelines, the (“Guidelines”) to child support in an amount presumptively as set out in the Guidelines unless “the court consider that approach to be inappropriate”. Specifically the Guidelines provide as follows:

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) The amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) If the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

22. The position of Mr. Finamore in the case before me is precisely the same as the payor in Senos v. Karcz. I see no reason to distinguish the analysis or the result in the Senos case, before the Divisional Court and the present case. I adopt and apply the analysis of the relationship between ODSP and child support, set out by Justice Pardu, commencing at para. 8 as follows:

8 The ODSP Act provides in s. I that the purpose of the Act is to establish a program that:

(a) provides income and employment supports to eligible persons with disabilities;

(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

(c) effectively serves persons with disabilities who need assistance; and

(d) is accountable to the taxpayers of Ontario.

9 In order to qualify the person must suffer from a "substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more," and "the direct and cumulative effect of the impairment on the person's ability to attend to personal care, function in the community and function in a workplace results in a substantial restriction in one or more of these activities of daily living." (s. 4. ODSP Act)

10 Pursuant to s. 5(1)(c), no person is eligible for income support unless their "budgetary requirements exceed their income".

11 The relationship between child support payments made to the parent of an adult disabled child and ODSP payments made to the child was reviewed in Director, Ontario Disability Support Program v. Ansell, 2011 ONCA 309. The Court noted that generally, budget requirements of the recipient are calculated in accordance with the regulations 222/9 8 particularly s. 29, which provides,

29(1) The amount of income support for a benefit unit shall be calculated on a monthly basis by determining the budgetary requirements of the benefit unit in. accordance with s. 30 to 33.1, reducing that amount in accordance with sections 33.2 to 36.2 and subtracting from that amount the income of the benefit unit, determined in accordance with sections 37 to 43.

12 The Court discussed the interrelationship between child support and disability payments at paragraphs [29]-[31].

[29] These features show that, in her mother's hands, the child support payments are not Jocelyn's income. Jocelyn has no legal entitlement to them, no ability to access them, and no control over how they are spent. Her mother could use the child support to repair the roof, pay a hydro bill or buy a new television set. Although these expenditures might be said to benefit Jocelyn indirectly, they are not the kind of expenditures that would be characterized as income attributable to Jocelyn under s. 3 7(1) of the Regulation. They are not payments to her or on her behalf or, at a practical level, even for her benefit.

[30] In short, although the payment of child support is a duty owed to Jocelyn, it does not necessarily follow that all, or even any portion of it can properly be characterized as payments to her or on her behalf or for her benefit. To include child support as income under the Regulation could deprive applicants of disability benefits under the ODSPA, even though none of the child support is used for the applicant's benefit.

[31] Instead of focusing on the child support payments themselves, the Director should focus on what Jocelyn's mother does with these payments. Only when Jocelyn's mother decides to use the support payments for Jocelyn's benefit do they potentially become income attributable to Jocelyn under s. 3 7(1) of the Regulation and deductible under s. 29(1). However, when Jocelyn's mother uses the child support for her daughter's benefit -- in this case, to pay for her daughter's disability related expenses -- the exemptions in s. 43(1) are engaged. Because of the applicable exemptions, Jocelyn need not account for expenses related to her disability, such as the cost of her horse therapy, when calculating her income under s. 3 7(1). She could rely either on the exemption for voluntary payments for disability related items (to a maximum of $6,000 over 12 months) or obtain the Director's approval for these expenses. There is nothing to suggest that the Director would have withheld this approval.

13 The corollary of paragraph [31] is that if child support payments were used for the adult child's benefit, for non-exempt purposes, they potentially become relevant to the assessment of the adult child's budgetary requirements.

23. In Senos, the Court adopts the ratio in Lewi v. Lewi 2006 15446 (ON CA), 2006 80 O.R. (3d) 321, a decision of the Ontario Court of Appeal, which emphasized the presumption which must be displaced by the applicant in order to deviate from the Guideline amount, even in the case of a child of the marriage over the age of majority. The onus of establishing that the presumptive approach is inappropriate in this case, rests on the applicant. In the case before me the argument presented by Mr. Finamore is precisely the same argument that was presented by the payor in the Senos case, namely that because the child was entitled to ODSP benefits this fact should eliminate, or at the very least reduce, the amount of support payable. As I indicated above, this is a circular argument, because ODSP eligibility is a needs and means test which is required statutorily to take into account the availability of child support which will affect the needs and means of the ODSP recipient.

24. If I were to fail to order child support to be paid, as Mr. Finamore argues I should, then this would increase the needs of Paula. Any increase in her needs would affect her ODSP entitlement. Mr. Finamore’s proposition is that in lieu of paying child support he would pay $400 into an RDSP account which would be available for Paula’s care in the future if her parents were unable to care for her. If her parents were unable to care for her in the future, then, by definition, her means would become limited, and assuming her needs were the same, then ODSP would kick in and she would be eligible.

25. The ODSP payments could never have been saved up for her, nor would it make sense to set aside something which essentially takes the place of present ODSP payments for the future, at a time when ODSP payments would then become payable in any event. Whether you set aside the ODSP payments, or a part of them now, or whether you set aside a portion of child support otherwise payable as Mr. Finamore requests, the result is the same: you are obtaining the equivalent of welfare or public assistance payments at the present time or their equivalent which is being set aside for future use, when they would be available in any event.

26. After separation, both parties were drawing from the company. Mrs. Finamore was receiving, on the evidence, $950 to $975 per week. According to Mr. Finamore, he was paying Mrs. Finamore $300 per week in addition to this up until the end of December 2012. According to him, this effectively, shared their incomes. However Mrs. Finamore had to look after Paula for which she also had access to Paula’s ODSP payments of roughly $800 per month. In addition to this, she started receiving in 2011 approximately $5000 per year from the “passport” plan administered by Oakland Regional.

27. After the December 2012 order of Justice Skarica, Mr. Finamore has been paying $800 per month child support. This was based on his $83,000 a year income. In June of 2013 he began working for Davan Landscaping where he has been making $70,000 per year. Child support should be based on this lower figure. He is not seeking any retroactive adjustment. According to Mrs. Finamore she receives roughly $5,000 per year from Oakland Region under the passport plan, but must supply receipts for the expenses before she is reimbursed. It appears that the purpose is to cover expenses that would be very much in the nature of section 7 expenses under the Child Support Guidelines. I have considered the targeted area of expense that is covered by the Oakland Region payments, and I am satisfied that Paula’s section 7 expenses are adequately covered by that payment, which is a net benefit to both of Paula’s parents.

28. Mr. Finamore testified extensively about his concerns about how Mrs. Finamore dealt with the ODSP payments. This was obviously a concern for Justice Skarica who made an order requiring Mrs. Finamore to account for how the ODSP money was disbursed. I have already indicated that I am satisfied that Mrs. Finamore has satisfactorily explained how the ODSP money was spent. It is readily apparent that it was spent on such items as clothing, including shoes, as well as personal items, entertainment, travel and the usual ordinary day-to-day expenses that a young person of Paula’s age could expect to incur. In addition, it appears that Paula is being trained in the use of money. She has her own debit card and is able to make cash purchases. I accept Mrs. Finamore’s evidence that her level of understanding is sufficient to enable her to engage in this type of training so she that she can be as independent as possible, despite her disability.

29. Both parties produced hundred’s of pages of documents with items blacked out, which made it difficult for me to assess many of their arguments that each of them had against each other, with respect to how money was managed. With respect to Mr. Finamore, Mrs. Finamore complained that he spent a lot of the company money on himself. Mr. Finamore ultimately conceded that this in fact was the case. Even though he agreed that he had siphoned off at least $25,000 of demonstrable personal expenses from the company which resulting in a net repayment to Mrs. Finamore of $12,500 over a three year period, it is in fact probable, that more than this was siphoned off.

30. Similarly, Mr. Finamore testified, and his counsel argued, that Mrs. Finamore, who has the day to day care of Paula, was somehow misappropriating ODSP funds for her own personal use. He complained that Paula bought men’s shoes (probably for Dean), but Mrs. Finamore testified that Dean had paid for cell phone expenses for Paula. This would not be an unusual thing for siblings. Some of the expenses that were put in issue included such mundane things as parmesan cheese and yams, which had been blacked out as purchases. These did nothing more than demonstrate that Paula was being expected to pay for some portion of the food that she ate. This is perfectly reasonable. She is a 25 year old adult. Although she is disabled she has income from both child support and ODSP . She should be expected, therefore, to provide for her own support to the extent that she is able to do so. This is precisely what ODSP and child support is for.

31. While it may well be that there is some validity to the criticism which Mr. Finamore levels against Paula’s mother for mismanaging Paula’s money, I am not satisfied that there is either fraud or bad faith on the part of Mrs. Finamore with respect to the manner in which she administers Paula’s ODSP funds or her child support. Specifically, it has not been established that Mrs. Finamore is stealing from her daughter, which was the essential subtext of Mr. Finamore’s evidence.

32. Finally, it is not the function of the Court to micromanage financial affairs as between a parent and an adult child, whether or not that child is disabled or not. I am satisfied in this case that micromanagement would be unnecessary in any event. Mrs. Finamore has satisfied me that she has Paula’s best interests at heart, and that everything that she does with respect to Paula is in Paula’s best interest. If Mr. Finamore were as concerned about Paula’s welfare as he suggests in his evidence, then I would have anticipated that he would have brought an application to attempt to obtain sole custody in an attempt to take Paula out of the clutches of Mrs. Finamore, whom Mr. Finamore suggests by implication is really attending to Paula’s needs and collecting the ODSP child support solely for her own use and not for the benefit of her daughter. This proposition is simply untenable on the evidence that I received over five days. It is simply not feasible to attempt to breakdown in any meaningful way all of the expenses that would be incurred by Mrs. Finamore and Paula in maintaining a household for both of them based on all of the income available to Mrs. Finamore from all the sources which I have named. The only thing that is clear is that the section 7 expenses are certainly covered by Oakland Region.

33. Based on the foregoing findings, and based on the application of the ratio in in the Senos case, I am satisfied that Mr. Finamore is liable for child support at the Guideline level based on his income of $70,000 per year, effective January 1, 2014. An order will issue accordingly.

Spousal Support

34. Interim spousal support had been ordered against Mr. Finamore based on his income at Davan of $83,000 per year. He subsequently moved to Kiwi – Newton in June 2013 where his salary dropped to $70,000 per year. He is not asking any retroactive spousal support adjustment.

35. His counsel however, does argue that in order to determine the appropriate level of spousal support I should impute an income of $25,000 per year to Mrs. Finamore. The evidence was that Mrs. Finamore had worked for 25 years at the bank, having been promoted from teller to becoming a sufficiently qualified financial professional to give advice with respect to mutual funds. She left CIBC in approximately 2002 when she began working with MFC doing some book-keeping. Her role in that regard diminished over the years until her husband eventually refused to allow her into the office, even though she was a 49 percent shareholder. It does not appear that she has worked out of the home since these previous work periods. She testified that she was healthy. She also testified that most of her time was spent looking after Paula. This is a little bit hard to understand, since it is clear on the evidence that Paula spends a lot of her time doing volunteer work at the Shopper’s Drug Mart and Sylvan Learning Centre. Mr. Finamore also testified that he would be available, or at least make himself available to look after some of Paula’s appointments and general running around. This does not seem particularly feasible, given his full-time employment. Be that as it may however, I am not prepared to find that Mrs. Finamore spends 100 percent of her time looking after Paula, nor that she would be required to do so in the future. Her description of Paula, who is now 25 years old, suggests that she has become reasonably well trained in looking after small finances and that she generally does not require a full time worker to look after her.

36. There are three factors that incline me to the view that Mrs. Finamore is capable of earning something, although it may not be in the range argued by Mr. Finamore’s counsel. The first factor is that she has 25 years’ banking experience, together with book-keeping experience at MFC. The second factor is that she is healthy, and agrees that she would like to go back to work if she could find work. I am not satisfied that she has been looking for work sufficiently diligently. The third factor, is that even at the new minimum wage of approximately $11 per hour for a 40 hour week, it is arguable that at some stage she should be able to make somewhere between $20,000 and $25,000 per year.

37. Against these factors however, remains the fact that she would be required, as Paula’s caregiver, to provide more time to Paula’s care than if she had no children responsibilities at all. As a result, I am satisfied that while she is able to work, and wants to work, that it would be more probable than not that she would find employment on a part-time basis. Absent any other evidence to guide me in this regard, I find that she is able to work, and ought to be imputed an income on a part-time basis of exactly one half of the $25,000 amount which Mr. Finamore’s counsel argues I should impute to her . I impute an income to her, therefore, commencing June 1, 2014, of $12,500 per year.

38. In order to establish the appropriate level of spousal support, in addition to Mr. Finamore’s income and the income I impute to Mrs. Finamore, I need to take into account child support and section 7 expenses. With regard to section 7 expenses, I am satisfied that these are adequately met by the availability of the special funds under the “passport” funding that Mrs. Finamore is receiving on Paula’s behalf. The funds are targeted to virtually the same special expenses that would be covered under section 7 of the Child Support Guidelines. Accordingly, the only remaining matter is how to factor child support into the equation.

39. Mr. Finamore strongly argued that he should not be required to pay child support, but that he would voluntarily put $400 per month into an RDSP. I am rejecting that proposal and requiring him to pay child support in accordance to the Guidelines. Accordingly, taking all of the above factors into account, my order with respect to spousal support will be that Mr. Finamore will pay spousal support based on his income of $70,000, Mrs. Finamore’s imputed income of $12,500 and Mr. Finamore’s child support obligation of $639 per month.

40. A Divorce Mate calculation using the Spousal Support Guidelines at the midrange level shows that the appropriate midrange figure based on this scenario would be $1,268 per month. The factors that I have taken into account, together with the resulting midrange spousal support, virtually equalizes the net disposable income between the parties. In this respect it mirrors the result argued for by counsel on behalf of Mr. Finamore, the only difference being that in the scenario argued on Mr. Finamore’s behalf the income imputed to Mrs. Finamore would have been $25,000. I have already given my reasons why I am using a figure of $12,500. Based on the argument of counsel for Mr. Finamore, he would have been paying roughly $1,100 spousal support and $400 into an RDSP. Under the order which I am making he will be paying a little more than $1,250 in spousal support per month and almost $640 in child support. I am satisfied that the numbers at which I am fixing spousal support, in light of Mr. Finamore’s other obligations, keeping in mind that the net effect is to virtually equalize the parties net disposable income, is appropriate. Accordingly, under the heading of spousal support, my order will be that Mr. Finamore will pay to Mrs. Finamore spousal support commencing June 1, 2014 at the rate of $1,268 per month, subject to the usual condition which would require a material change in circumstance to warrant changing the amount of spousal support.

41. My intention at fixing spousal support at this level, in light of my finding of Mr. Finamore’s child support obligation, is meant to encourage Mrs. Finamore to seek employment. She can earn at least $12,500 per year without adversely affecting her spousal support receipts. If she is able to gain part-time employment at this rate then hopefully it will lead to permanent full-time employment, which will then accrue to the benefit of both she and her husband, as well as Paula. I have also tried to fix a spousal support figure which is not crushing on Mr. Finamore, given the extent of the equalization payment which he must bear.

Life Insurance

42. Given Mr. Finamore’s spousal and child support obligations, it is appropriate, and is so ordered, that he provide life insurance in the sum of $200,000 payable to Mrs. Finamore in trust for herself and Paula. If he is unable to do this through his employment, then he is to make his best efforts to do so personally, and to provide written proof that he has done so, together with a copy of the policy if he is able to obtain insurance. Such evidence of best efforts, or the policy, as the case may be, are to be provided within six months of the making of this order.

Net Family Property Equalization

Matrimonial Home

43. The wife’s position was that the matrimonial home was worth $525,000 at the date of separation and since it was sold for $630,000 in May 2013, she should be entitled to the increase in value because she maintained it during that period. While I will deal with her argument when I come to post separation financial adjustments, I am satisfied that it was owned equally at separation and from an equalization stand-point is a “wash”, subject to the adjustment’s argument which I will deal with in due course.

Household Goods and Furniture

44. Mrs. Finamore was cross-examined at length about notations in the original financial statement prepared when she had a solicitor, in which she claimed $15,000 worth of household goods and furniture, she counter-argued that Mr. Finamore took a number of items. After considerable wrangling Mr. Finamore’s counsel agreed that the matter was moot, because he was no longer going to be claiming that $15,000 worth of household goods should go onto her side of the net value property statement. Accordingly, I allow nothing on either side with respect to household goods and furniture.

Cars, Boats and Vehicles

45. There is no dispute that the 1975 Pontiac Firebird owned by the respondent, was worth $3,500 at the time of separation and this will therefore go on her side of the ledger.

46. Equally, there is no issue that her 2008 Audi was worth $35,000 at the time of separation, and this will appear on her side of the ledger. I should note at this point, that this same item will appear in the net family property as a debt.

Jewellery and Art

47. In the financial brief filed by Mrs. Finamore’s original counsel, she was shown as having $50,000 worth of jewellery. Understandably therefore, Mr. Finamore took the position that this should appear on her side of the ledger in the NFP statement. It appears that the original figure was based on appraisal value rather than what the sale of the jewellery items would in fact bring. Mrs. Finamore filed documents to support her position. She argued that her jewellery should be valued at $23,000. I am satisfied that the actual value of the jewellery would be probably a lot closer to the value set out in her recent valuations rather than the original appraisals if she were forced to sell them as of separation date. In the result therefore, I fix the value of her jewellery at $25,000 which will appear on her side of the NFP ledger.

48. It was common ground between the parties that the defendant had purchased a watch collection for $8,000 and he valued this at the same amount as of separation. Mrs. Finamore testified however, that in addition to the $8,000 watch collection he had about $10,000 worth of jewellery. She was quite specific in identifying seven or eight items together with the values and descriptions of the items, along with when they were purchased. The purchased cost of all of the jewellery was somewhere between $8,000 and $10,000 to which she was able to testify. In the same manner in which I have made allowance for the actual probable proceeds that a forced sale of the jewellery would bring, when considering Mrs. Finamore’s jewellery, I apply the same principle to Mr. Finamore’s jewellery collection. I accept his value of $8,000 for the watch collection and add to it $5,000 on his side of the ledger for the balance of his jewellery for a total of $13,000.

Special Items

1968 GTO

49. With respect to a 1968 GTO motor vehicle owned by Mr. Finamore, I ascribe a value to it of $10,000. He said he bought it in 2005 from Arizona, and paid about $8,000. He said it is now worth about $5,000. There was conflicting evidence about the value ranging between $5,000 and $15,000 but based on other evidence in the case, primarily commentary in the various appraisals related to the 1968 GTO, I am satisfied that it would have increased in value from when it was purchased and would be more than the $5,000 claimed by the applicant but less than that claimed by the respondent. Therefore I fix the value of the 1968 GTO on the applicant’s side of the NFP ledger at $10,000.

1969 GTO

50. Mr. Finamore bought the 1969 GTO in July of 2009 shortly before the separation. He sold it in November of 2010 for $15,000. An insurance document shows a value of $36,000 US as of July 31, 2009. The evidence respecting the 1969 GTO was somewhat convoluted because of Mr. Finamore’s evidence that he had not actually completed paying for it and owed his friend Enzo money on it and subsequently sold it to Richard O’Driscoll for $15,000. In November 12, 2010, a receipt shows the sale, but exhibit 48 dated July 23, 2009 shows at that time, a selling price of $27,000. Given all of the conflicting evidence with respect to the value of the 1969 GTO as of the separation date in the fall of 2009, I am satisfied that it would not have changed in value very much from the time it was actually purchased. Despite the insurance value of $36,000 US, and despite Mr. Finamore’s convoluted evidence about his interest in the vehicle, I am satisfied that at separation, the vehicle was worth the $27,000 he initially paid for it. This will therefore be the figure which appears on the applicant’s side of the NFP opposite the 1969 GTO.

1970 Pick-up

51. The 1970 pick-up was the subject of much evidence including two appraisals, one prepared in the summer of 2013 and another for trial. The later which was obtained by Mrs. Finamore, included the comment that it was an appraisal “without a hands on approach, as the vehicle cannot be found.” However, the person who did the appraisal had actually worked on the specific vehicle and was familiar with it. The other appraisal was prepared at the time that the vehicle was sold in the summer of 2013. Mr. Finamore’s appraisal is $24,000 in the summer of 2013, and Mrs. Finamore’s appraisal is $40,000 at the time of trial. The latter figure, I find is coloured by the fact that Mrs. Finamore said that Mr. Finamore was constantly bragging that the vehicle was worth $40,000.

52. In arriving at a value for it, I need to take into account commentary in the appraisal, that the vehicles would rapidly increase in value. It is very difficult to determine the actual value of the vehicle in 2009. The applicant Mr. Finamore admits that the vehicle was worth at the very least $15,000. It was certainly worth at least $24,000 in the summer of 2013.

53. At the end of the day, despite the difficulty in arriving at a fair evaluation, the parties being $16,000 apart, I am satisfied that the fairest value to ascribe is the $24,000 put forward by counsel for Mr. Finamore on the assumption that it was likely a “fire sale” in July 2013 and the vehicle may well have been worth more. However, in order to have sold it for $24,000 it is more probable than not, that Mr. Finamore would not have taken a loss at that time, and therefore it would be safe to assume that the vehicle was at least worth $24,000 in 2009. What makes it particularly difficult to value the vehicle is the fact that it had been purchased in 1999 somewhat indirectly. I assign a value of $24,000 to the 1970 Chevrolet Pick-up on Mr. Finamore’s side of the NFP ledger.

Joint Accounts

54. The Meridian Credit Union account ending in 261, had $20,450.81 in it at the time of separation. I am satisfied on the evidence that all of this money was utilized by Mr. Finamore and accordingly, this sum will appear on his side of the NFP ledger.

55. The joint checking account with TD Canada Trust ending with 004 had nothing in it and therefore, zero will appear on each side of the ledger.

Paul Accounts as of September 30, 2009

56. All of the accounts under this heading are agreed to and will appear as in the NFP in the applicant’s submissions.

57. The checking account with TD Canada Trust ending with 555 was a joint account but the money was retained by Mr. Finamore. Accordingly, with reference to this account, the sum of $1390.14 will appear on his side of the NFP.

Sylvia Accounts as of September 30, 2009

58. Accounts ending with:

a) 130- it was agreed this could be ignored;

b) 433 – it was agreed this could be excluded because this was an account in Mrs. Finamore’s mother’s name;

c) 138 – it was similarly agreed this could be excluded as it was in the grandmother’s name;

d) 663 – was agreed that $282.94 should appear on Mrs. Finamore’s side;

e) 460 – this was apparently a joint household account and it was agreed it could be ignored;

f) 869 – it was agreed this could be excluded, because it belonged to Mrs. Finamore’s mother;

g) 360 – it was agreed this could be ignored as a trust account for Paula;

h) 464 - it was agreed this could be ignored as a trust account for Paula;

i) 084 – this account represents the balance of life insurance proceeds from the death of Mrs. Finamore’s brother. It was agreed that this could be excluded, as being held either in trust or as life insurance proceeds which would be exempt from the NFP statement. Accordingly, nothing will appear on the NFP statement for this amount;

j) 071 – this account represents two GIC’s one for $7,514.52 and another for $3,705.84. When the company was getting into difficulty, Mrs. Finamore transferred these GIC’s to her grandmother and son in order to protect them. She agreed in cross-examination that she had control over the ability to transfer the money back to herself and therefore, I attribute her with ownership of the 2 GIC’s one in the amount of $7,514.52 and the other in the amount of $3,705.84. They will appear on her side of the ledger;

k) 0076 – it was agreed that this belonged to Mrs. Finamore, and therefore it will appear on her side of the ledger, in the amount of $8,266.74;

l) 073 – this account represents funds owned by Mrs. Finamore’s mother and will be excluded;

m) accounts ending 627,425,492,631,300,382 – these are all GIC’s which it is agreed, properly appear on Mrs. Finamore’s side of the NFP ledger;

n) 705 – is part of the CIBC mutual funds accounts in Mrs. Finamore’s name. Mrs. Finamore posted in her submissions a figure of $7,351 but exhibit one, prepared in a brief by her counsel, showed that under that account, the proper figure for that account should be $9,315.24. This is the number therefore, that will appear on Mrs. Finamore’s side of the NFP ledger; and

o) Accounts ending with 274, 168 443 928 – are all RSP funds in the control of Mrs. Finamore and therefore appear on her side of the ledger.

Life Insurance

59. With respect to the Sun Life policy it was agreed that the sum of $9,055 should appear on Mr. Finamore’s side of the ledger, and with respect to the Clarica policy, although it was initially suggested that the cash surrender value was $6,372, it ultimately came out in evidence that the cash surrender value, at least as of October 5, 2010, was $4,770. The latter figure will therefore appear on Mr. Finamore’s side of the NFP ledger.

Marshal Finamore Construction

60. Both parties agree that the business interest should be valued at $100,000 each and this is the figure that will appear on the NFP ledger. There were no retained earnings or cash at the time of separation.

Building Lot

61. 35 Rowland St. is a lot that was purchased jointly by Mr. Finamore and another person. The tax assessment filed, as exhibit 25, shows a value of $50,000. I accept his evidence that although it had been listed for $84,000 it did not sell because of environmental issues. I fix the value of the lot at $50,000, and Mr. Finamore’s interest therefore will be fixed at $25,000 which will appear on his side of the ledger.

Debts

62. There was no dispute with respect to all of the debts set out under the heading of joint debts and Sylvia save and except for the $61,106.91 debt claimed by Mr. Finamore to be a joint debt. I am taking that out of the NFP ledger altogether for a number of reasons which I will discuss later under the heading of post separation financial adjustments. Essentially it was for supplies which were not delivered until after separation and any discussion of how to deal with it should therefore not be in the context of equalization but in the context of post separation financial adjustments.

63. Apart from the Emco debt, therefore, all of the other items under debts will appear in the NFP as they appear in the applicant’s NFP submission.

Property on the Date of Marriage

64. There is no dispute that Mrs. Finamore had a Datsun worth $3,500 at the date of marriage, which is property allowed as an exclusion and will therefore appear as an exclusion on the NFP.

65. Annexed to this judgment as appendix A will be a Net Family Property Statement, containing the accounting details, derived from the above analysis, resulting in the equalization payment. Mr. Finamore will pay Mrs. Finamore $90,218.31 to equalize their net family property.

Post Separation Financial Adjustments

66. Mrs. Finamore represented herself in the proceedings. Much of her cross-examination of Mr. Finamore dealt with how he handled the company finances particularly in the time leading up to the separation and in the three years until the company finally went bankrupt. Many of the areas explored by her, some of which I will deal with later, were the proper subject of a forensic accounting examination. No forensic accounting specialist was called and in many cases I was left to speculate about what Mrs. Finamore was specifically trying to establish from a financial perspective as losses to her personally arising from how Mr. Finamore managed the company.

67. She and the lawyer she had initially retained were given full access to all of the company records eventually, together with access to the company book-keeper and the outside accountant who prepared the company returns. In addition to this, the company itself went into bankruptcy and as both Mr. and Mrs. Finamore were joint owners of the company she had equal access to whatever information the trustee in bankruptcy had. Given her access to the information, and given the fact that no forensic accounting analysis was ever performed that demonstrated any wrong doing of how Mr. Finamore managed the company, I am satisfied that in large measure Mrs. Finamore's probing cross-examination of Mr. Finamore was as much of a “fishing expedition” as it was an attempt to establish positive facts in her favour.

68. Having said that, however, there are a few specific areas where she has successfully persuaded me that financial adjustments should be made in her favour. I will get to those shortly.

69. In the meantime, I am not satisfied that there was any substantial wrong-doing on the part of Mr. Finamore that led to losses to Mrs. Finamore. In particular, I accept Mr. Finamore’s evidence that he transferred some assets to Davan where he ultimately went to work, and that Davan took over some of the liabilities under the contracts, which liabilities exceeded one million dollars. This was beneficial to the company which was going under. In addition, I am satisfied that the bulk of the assets went to the trustee in bankruptcy for the benefit of the creditors.

70. I have also looked at Mrs. Finamore’s evidence and Mr. Finamore’s evidence respecting efforts for outsiders to buy Mrs. Finamore’s 49 percent interest in the company which fell through in April 2012. I am satisfied that there was nothing sinister about this effort and that it fell through simply because the buyers knew that the business was in trouble.

71. I also accept Mr. Finamore’s evidence in which he denied getting any “kick-back” from anyone when the contracts were transferred. Most of the contract transfers had to do with equipment leases.

72. I also accept Mr. Finamore’s evidence that he sold a curb and gutter maker and a truck, but the money was put into the company i.e. the Meridian account for the benefit of both himself and Mrs. Finamore. In fact, he had to get a release from Meridian before he could sell these items on which Meridian would have had a lien. Meridian would have insisted that the money go to pay down debt.

73. I also accept Mr. Finamore’s evidence that he never agreed to assume all of the debts of the company. It would make no sense for him to do so because he and Mrs. Finamore were the joint owners. Even if he had, there would have been no consideration. Such an agreement would have been unenforceable by her.

74. I do agree with Mrs. Finamore however, that on the evidence that she was able to bring out that Mr. Finamore in fact used company money to pay personal debts and to make personal purchases. Much of the evidence tendered with respect to the Visa statements is ambiguous, while some of it is more obvious. For example, exhibit 23, a Visa statement shows quite clearly that Mr. Finamore kept $400 cash personally of company money. However, I got the impression from both witnesses that much of what Mr. Finamore did after separation was similar to how company business was conducted while the parties were living together. This is confirmed by his reply to her at one point telling her that “it was the same as they did for a trip”.

75. Mrs. Finamore demonstrated considerable expertise during the trial with respect to financial matters, and this is no doubt due to her 25 year’s experience working at the bank. She advanced from a teller to become a financial consultant. While she may have been excluded from attending the office after she was charged with assault, she knew how to go about getting a new vehicle, utilizing the company.

76. Similarly, while she complains that Mr. Finamore had the company pay for his personal gas she agreed that she herself had the company pay for her vehicle and gas and that she did not claim it as a tax benefit, preferring to simply indicate that everything that she did was “okay” with the tax preparers.

77. I accept Mr. Finamore’s evidence that Mrs. Finamore looked after most of the personal finances and that in fact he was not aware of what he had in RRSP’s until he obtained that information from Mrs. Finamore. At the end of the day, most of the complaint’s made by Mrs. Finamore that formed the basis for her various claims for financial adjustment subsequent to their separation, were based on her assumption, that Mr. Finamore simply mismanaged the company according to her. According to her, this is why the company went downhill and eventually bankrupt.

78. What is ironic about her position of course is that Mr. Finamore argues that the reasons he should not have to pay any more child support and why he should be permitted to put some money which is less than child support into a RDSP for Paula, is because of his complaint that Mrs. Finamore has mismanaged Paula’s ODSP and Passport funding money. I dealt with this earlier, but before moving onto the specific financial adjustments I am going to make in this case, I want to assure both parties of something. It is this: while Mr. Finamore’s handling of company finances may have been “shoddy”, as essentially argued by Mrs. Finamore, and Mrs. Finamore’s handling of Paula’s money may have been “shabby”, as essentially argued by Mr. Finamore, neither party is guilty of fraud or sufficient wrong-doing to warrant any intervention by the court, other than adjusting their financial affairs as I intend to do through this judgment.

79. I move on then to the specific areas of adjustment where some claims will be allowed, and some not allowed.

Emco

80. When dealing with the equalization issue, I refused to allow Mr. Finamore to deduct as an equal debt between the two parties, the sum of $61,106.91. The total amount of this debt owing to Emco was paid out of the sale proceeds of the matrimonial home. Hence, half of this amount was paid out of Mrs. Finamore’s share of the matrimonial home proceeds.

81. It was suggested to Mrs. Finamore that Mr. Finamore had asked early on for the matrimonial home to be sold, and if she had agreed, and the home had been sold in a timely manner, that the proceeds would have been obtained from the sale prior to the Emco execution, going against it. This argument is predicated on satisfying me that it was more probable than not, that the home would have been sold in such a timely manner and that the Emco debt would, therefore, more likely than not, have been avoided as a payment out of the joint sale proceeds. I am not persuaded that this would have happened. There is no evidence put forward as a foundation to satisfy me on the balance of probabilities that a sale would have gone through that would have netted the amount of money that was netted. If $60,000 less were obtained by an earlier sale, then this would have cancelled out the entire effect of the argument. In other words, the argument is simply speculation, with no evidential foundation.

82. On the other hand, what is not speculation is what in fact occurred respecting the Emco debt. According to Mr. Finamore the debt arose from the supply of material in 2011. It was, therefore, a debt that did not exist at separation. Mrs. finamore had been told to stay out of the office. Mr. Finamore was managing the business for both of them. Emco was attempting to serve Mr. Finamore in September 2012, right around the time of discussions about whether or not the company should go bankrupt were taking place. Judgment was taken out on December 21, 2012. The bankruptcy was in October 2012, and Mr. Finamore’s argument was that if the house had been sold sometime between September 2012 and December 2012 when he was trying to have it sold, the execution would not have attached.

83. This argument, apart from being rejected for the reasons set out above, does not hold water in any event, because the debt was a personal one to Mr. Finamore arising out of a breach of trust. While it is not necessary to go into this part of the law in any detail, it is questionable however, whether the bankruptcy in any event could have prevented the debt from attaching because of the nature of the breach of trust that occurred.

84. Mr. Finamore, I am sure, would be fully familiar with the provisions of the Construction Lien Act, and his obligations to pay funds received to sub-contractors. There is more than one way that Mrs. Finamore’s claim for this financial adjustment in her favour can be justified. She was not permitted to conduct company business because Mr. Finamore refused to let her into the office. She certainly would have had no access to information respecting the lawsuit against the company by Emco. He assumed this responsibility and the correspondence between he and his lawyer respecting this matter, demonstrate that she was never involved in the lawsuit, either personally or on behalf of the company. I find that he was negligent in the manner in which he dealt with the action and there is certainly sufficient circumstantial evidence to support a finding that he was simply evading service of the papers, and in doing so permitted substituted service and eventually an ex-parte motion for judgment. This alone would be sufficient to warrant refusing to allow him to attribute half of the debt to Mrs. Finamore.

85. More importantly, this was a personal debt based on breach of trust. It was not her debt at all in the first place, and should, therefore, never have been realized against her share of the house, or if it was, he had an obligation to reimburse her.

86. For the forgoing reasons, I allow the adjustment as requested by Mrs. Finamore and order Mr. Finamore personally to pay to Mrs. Finamore the sum of $30,553 being her share of the Emco judgment paid out of the matrimonial home sale proceeds.

Company Paid Personal Expenses

87. Mrs. Finamore alleged during the trial, that Mr. Finamore charged approximately $40,000 of personal expenses to the company. She painstakingly reviewed Visa statements for 2010, 2011 and 2012. She said that after separation he was using his personal Visa, to pay both personal and business expenses, but that the personal Visa was then paid by the company. Counsel for Mr. Finamore objected to Mrs. Finamore being permitted to introduce this evidence because she had not confronted Mr. Finamore with any of this evidence other than vague references when he was giving his evidence and was highly prejudiced because of the amount of detail that he was being asked to recall.

88. I agree with counsel for Mr. Finamore that it would have been preferable for Mrs. Finamore to have gone through this exercise a long time even before the trial itself had commenced in order to give Mr. Finamore an opportunity to do his own analysis as to whether or not the $40,000 figure which she claimed represented personal expenses paid by the company was accurate. Despite the obvious prejudice to Mr. Finamore, in having to meet this evidence, it was important that this particular issue be aired and resolved if at all possible. Fortunately, Mr. Finamore and his counsel agreed that rather than delay the matter in order to come up with some kind of response, he would admit that he spent at least $25,000 of personal expenses, which he charged to the company. Mrs. Finamore accepted this, and was made aware that the net effect, would be that he would have to pay her a $12,500 adjustment to cover for these personal expenses, paid by the company. Based on the resolution of this issue by the parties, I therefore make an order, that Mr. Finamore pay Mrs. Finamore by way adjustment the sum of $12,500 under this heading.

Personal Line of Credit Adjustment

89. Following the December 2012, support order, Mr. Finamore agreed that he stopped paying the personal line of credit, which he and Mrs. Finamore had with the CIBC so that Mrs. Finamore paid it for four months, out of her own mother’s account. The monthly payments were $1,225.04 per month, which was $612.52 each. Mr. Finamore said he stopped making the line of credit payments because he could not afford to continue with his support payments in addition to paying half of the personal line of credit, and pay rent for his own accommodation while Mrs. Finamore lived in the matrimonial home. The fact of his paying rent and her living in the matrimonial home is a matter I took into account, and which I will later refer to in refusing her request for an adjustment. The other issues simply have no bearing on the equities as between the parties. In the result therefore, I accept her argument, that he should be ordered to repay her for the four payments she made on his behalf, of $612.52 for those four months. He is, therefore, under this heading, ordered to pay her a post separation financial adjustment of $2,450.08.

90. Similarily Mr. Finamore in September 2010 appropriated to himself a cheque for the amount of $979.49, which was supposed to have been put towards the CIBC line of credit, when the line of credit was paid down by $56,559.94 from the proceeds of the 14 Walnut property sale. An order will therefore issue that he pay a post separation financial adjustment to Mrs. Finamore for $489.75. for this item.

CRA Credit

91. As I indicated earlier, both parties put their vehicles and vehicle expenses through the company. However, in 2009 Mr. Finamore received a tax benefit of $2,054.21 which was not available to Mrs. Finamore but which arose from how the vehicles were treated by the company in dealing with the taxes. Mrs. Finamore is entitled to reimbursement for her share of the benefit or $1,027.11 and I so order.

Medical Adjustment

92. Evidence was led, which was not contested, showing that Mr. Finamore had pocketed the sum of $119.57, which was reimbursement for medical bills which had in fact been incurred by Mrs. Finamore. The entire amount of $119.57 is therefore ordered to be repaid to her.

Matrimonial Home

93. Mrs. Finamore introduced evidence to show that she had paid approximately $52,000 to maintain the matrimonial home, during the time that she was in it from separation until it was sold in the spring of 2013. Between the time of separation and the time of sale, the house apparently escalated in value over $100,000. She argued that she should be entitled to payment of the enhanced value because she maintained the property. I rejected her argument. She would have been responsible for $26,000 of the expenses incurred in any event and her claim would only be for the $26,000. She also agreed that the rental value would be at the very least $1,400 per month, and accordingly, she would owe him $700 a month for rental for the same period of time. This works out to roughly $32,000 she would owe him in rent, while he would owe her $26,000 for maintaining his property. I am satisfied in these circumstances that she should not be entitled to amend her claim to include the maintenance costs claim against him of $26,000, and he has not brought a claim in response to claim $32,000 occupation rent. I treat the issue of him having to pay rent while she was in the matrimonial home and her maintaining the property while not paying him rent as a “wash”. Accordingly, I decline to make any adjustment respecting the matrimonial home.

Gas

94. Mrs. Finamore argued that Mr. Finamore was “double-dipping” with respect to gas for the cars. It should be kept in mind here that both parties put vehicles through the business and benefited equally from this fact. However, in addition, Mrs. Finamore pointed out that Mr. Finamore was charging more mileage than he could have possibly been driving, and therefore was profiting at the expense of the company in an amount entitling her to a 50 percent compensation. Mr. Finamore’s simple answer was that he was charging sufficient mileage to produce revenue for the company to pay for the car payments themselves and that provided that he and Mrs. Finamore were treated equally by the company with respect to the financing and maintenance of their cars, no allowance should be made. I agree with Mr. Finamore’s counsel, and decline to make any adjustment with respect to mileage or gas.

Amici

95. Mrs. Finamore suggested that some cheques paid to Amici properties with respect to rental, were appropriated by Mr. Finamore. I accept Mr. Finamore’s explanation that what in fact occurred was that the cheques were issued to avoid having to pay a full year in advance, because of the pending bankruptcy and that he did not personally profit. I similarly accept his explanation respecting the transfer of the option to purchase as being equally beneficial to both parties.

Cash

96. Mrs. Finamore filed photocopies of some cash which she said represented occasions when Mr. Finamore would accept cash on behalf of the company and pocket it without sharing with her. Mr. Finamore said that she was aware of all cash transactions, and that they were shared equally between them, amounting to $6,000 to $7,000 split amongst the family over the same period of time that the company took in between $5,000,000 and $6,000,000 of business. I find that she was an equal benefactor of this practise and has not established her claim.

Meridian Line of Credit

97. The company had a $400,000 line of credit with Meridian, from which according to Mrs. Finamore, Mr. Finamore was secretly taking cash withdrawals for personal use. The evidence does not satisfy me that this is the case, and her request for an adjustment is denied.

Silverado

98. Mr. Finamore purchased a 2010 Silverado and Mrs. Finamore argued that the price was inflated to benefit Mr. Finamore. I accept Mr. Finamore’s explanation, that the price was in fact inflated, but this was done to include the outstanding lease debt owed by him which was taken on by him personally, and resulted in a net benefit to the company, which of course would benefit both he and Mrs. Finamore. The vehicle was subsequently traded in March 2013 for a Jeep. The Silverado transaction did not affect the assets or debts as of separation, and simply had the effect of providing for a longer payment term at a smaller monthly rate and did not financially adversely affect Mrs. Finamore to entitle her to an adjustment.

Ms. Nobil

99. Ms. Nobil, who is described by Mrs. Finamore as Mr. Finamore’s girl-friend, is the person from whom he rents his residential property. Mrs. Finamore tried to show that in fact he was somehow involved in the purchase of the property by her. However, the documentation filed, shows that in fact she made the purchase from a legacy, and there is nothing in the evidence that implicates Mr. Finamore financially in the purchase, which could entitle Mrs. Finamore to some kind of compensation. Her claim in this regard is denied.

CRA Renovation Write-Off

100. Mrs. Finamore argued that she should be entitled to a credit for a CRA benefit received by Mr. Finamore with respect to renovations to the house, paid for by the company. No assessment was filed, and there is simply no evidence that the claim was allowed, or that it financially prejudiced Mrs. Finamore . Her claim in this regard is disallowed.

Legal Bills

101. Mrs. Finamore attempted to establish that Mr. Finamore had agreed to pay some of her legal bills. On the evidence it appears that MFC agreed to pay up to $2,000 with respect to one meeting she had with regard to the bankruptcy, but the company of course is in no position to pay them. It would make no sense for Mr. Finamore to pay Mrs. Finamore’s legal bills, and I reject her evidence and argument that he had agreed to do so. Accordingly, I deny this claim.

Cost Order

102. On the other hand, Justice Skarica made a cost order against Mrs. Finamore for $3,500 when he ordered her to provide evidence of how she dealt with Paula’s ODSP money, and also ordered that $35,000 of the matrimonial home sale proceeds be retained in trust pending resolution of how Paula’s ODSP funds were dealt with by Mrs. Finamore. As I explained earlier, I am satisfied that Mrs. Finamore has adequately explained where Paula’s ODSP money went, and therefore Justice Skarica’s order has been complied with in that regard. However, the $3,500 cost order is still outstanding, it has not been appealed from, and I do not have authority to set it aside, or to deal with it in any manner other than to allow it as an adjustment in favour of Mr. Finamore, when determining the total amount of adjustments post separation, that are to be made. The $3,500 cost order should therefore be taken into account as a deduction from any adjustments ordered above to be made by Mr. Finamore to Mrs. Finamore.

Conclusion

103. Judgment shall issue in accordance with the above reasons. Costs shall be addressed by written submissions. The applicant shall deliver written cost submissions within 30 days, the respondent shall respond in writing within 15 days thereafter, and the applicant shall have 5 days to reply. I will issue a cost endorsement unless I require further oral submissions.

“Justice Belleghem”

Justice J.R. Belleghem

Released: June 3, 2014

COURT FILE NO.: 397-11
DATE: 2014-06-03

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Robert Finamore
Applicant

– and –

Sylvia Catherine Finamore
Respondent

REASONS FOR JUDGMENT

Justice J.R. Belleghem

Released: June 3, 2014