Toth v. Toth, 2015 ONSC 1174

COURT FILE NO.: D1085-13

DATE: 2014-02-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Deborah Lynne Toth

Applicant

– and –

Steven Joseph Toth

Respondent

Stuart M. Law, Counsel for the Applicant

Sandra Majic, Counsel for the Respondent

HEARD: December 1-5 and 12, 2014

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] Straightforward issues of spousal support, equalization of net family properties and related matters were made out to be complex. In result, the accumulated savings from a 27 year marriage will have been spent financing this litigation. It did not have to end this way.

Background

[2] Deborah Toth and Steven Toth are both 57 years of age. They met in 1983 and married on March 24, 1984. Separation occurred on August 14, 2011.

[3] Three children were born to the relationship: Kyle Toth on January 26, 1988; Madison Toth on February 2, 1990; and Candice Toth on March 14, 1991. The children are all independent adults. Madison and Candice continue to reside with their mother.

[4] Both parties were employed during the marriage. Ms. Toth is presently a secretary in a doctor’s office, earning $33,900 per annum. Mr. Toth is a teacher. His salary is $88,285. Mr. Toth will qualify for retirement on a full pension in 2017.

[5] The matrimonial home was sold in June 2014, with the net sale proceeds being held in trust pending the determination of the issues at trial.

[6] The parties have agreed on the division of Mr. Toth’s pension. The Family Law Value of his interest in the Ontario Teacher’s Pension Plan is $517,576.49, as of the valuation date. The sum of $258,788.25, plus interest to the date of transfer, is to be transferred to a Locked-In Retirement Account of Life Income Fund of Ms. Toth.

A. The Evidence

(i) The Parties

(a) Deborah Toth

[7] Ms. Toth graduated from high school in 1975. After completing a course in floral design, she obtained employment with a florist shop. Ms. Toth lived with her parents until 1983 when she obtained a rental apartment. Following the wedding, Mr. Toth moved in to this unit. The matrimonial home was acquired in November 1984.

[8] Employment at the florist shop continued for some years, save for a maternity leave of absence following the birth of each child. This employment was reduced to a part-time position after Madison was born, due to family responsibilities. In 1993, Ms. Toth resigned and became a stay at home mother as, she said, daycare expense was using up all of her income.

[9] In 1997, Ms. Toth resumed working part-time in a florist shop. In 2006, she also obtained a clerical position in the office of Dr. McCallum. Ms. Toth discontinued the employment at the florist shop in 2008 when her other job became four days a week.

[10] In September 2010, Ms. Toth suffered a heart attack. She was briefly hospitalized and then recuperated at home. Ms. Toth was off work four months, returned to work in January 2011, initially for three days a week, but increasing to four by February.

[11] Immediately after the separation, Ms. Toth requested a raise and full-time hours, both being granted. Ms. Toth continues to be employed as a secretary by Dr. McCallum.

[12] When the matrimonial home sold in June 2014, Ms. Toth obtained a rental house at a monthly cost of $1,395. Madison and Candice reside in this home.

[13] Ms. Toth plans on purchasing a modest home with her share of the matrimonial home sale proceeds. She anticipates her savings will be required to pay the legal fees and disbursements for this case. Ms. Toth intends on working until age 65.

(b) Steven Toth

[14] Mr. Toth also graduated from high school in 1975. He obtained a position at Stelco. Given the demands of shift work, Mr. Toth left Stelco in 1987 and worked as an auto mechanic at a local garage. He would then complete the requirements for a mechanic’s license.

[15] Shortly thereafter, Mr. Toth and a friend started their own motor vehicle repair business, mortgaging the matrimonial home to provide the startup expense. The business was not profitable, losing money in the first two years, breaking even in the third.

[16] In 1990, Mr. Toth was successful in securing a position as a supply teacher and the business was discontinued. He became a full-time auto mechanics teacher in 1991, having completed teacher’s college at Queen’s University in Kingston over two summers. Mr. Toth described this career change as the best decision of his life. As required for this position, Mr. Toth continues to maintain a mechanic’s license.

[17] Mr. Toth will qualify for retirement in 2017 on an “85 factor”, namely age plus years of experience. He intends on working until at least that time, when he will be entitled to a full pension, perhaps longer, depending on his health and financial circumstances.

[18] Following separation, Mr. Toth obtained a modest one bedroom basement apartment. The monthly rent is $650. The unit, he says, is less than satisfactory and he would like to move to better premises.

(ii) The Children

[19] At the time of separation, all three children resided in the matrimonial home. Such continued thereafter for a period of time.

[20] Kyle is 26 years of age. In December 2013, he obtained rental accommodation in Ancaster. Kyle completed an apprenticeship program and, in December 2012, obtained a mechanic’s license. He is employed and lives independently. Kyle acquired a used vehicle several years ago, the purchase funds either being gifted by his parents or from a loan provided by his father, depending on the version accepted. In August 2011, just prior to separation, Mr. Toth borrowed $10,000 on the parties’ joint line of credit, approximately $8,000 being spent by Kyle on parts and modification expense for his vehicle. The loan was subsequently repaid by Kyle, according to Ms. Toth. Mr. Toth was unsure.

[21] Madison is now 24 years of age. She completed an undergraduate program at McMaster University in 2013. Madison resides with her mother. She has several part-time employment positions, including one as a clerk at Target. The parties paid Madison’s first year tuition, the balance of the university expense financed by a student loan and employment earnings. Madison is said to be continuing payments on this loan at present. She contributes $125 monthly to her mother for room and board. Ms. Toth gave her 13 year old vehicle to Madison. The vehicle “died” in 2014. Madison purchased a new vehicle, financing it on her own.

[22] Candice is 23 years of age. She also completed an undergraduate program at McMaster University in 2013. Candice then attended graduate school at Ottawa University, obtaining a Master’s degree in 2014. She continues to reside with her mother while engaged in volunteer work that is said to be a prerequisite for another Master’s degree in speech pathology. Candice plans on commencing that program in 2015.

[23] The parties also paid Candice’s first year tuition, the balance of the undergraduate expense financed by her employment. Candice received a full scholarship for the Master’s program in Ottawa. Mr. Toth also voluntarily contributed $500 monthly to assist in her living expenses.

(iii) Separation

[24] Although not relevant to the financial issues in dispute, considerable time at trial was used to discuss the separation.

[25] Mr. Toth described being unhappy for 10 years prior to the separation. He felt they were drifting apart. Following a conversation in July 2011, Mr. Toth reported concerns with the extent of Ms. Toth’s savings, a matter, he said, he was unaware of previously.

[26] Ms. Toth was not expecting the separation. She was aware the month prior as to Mr. Toth’s unhappiness but expected he would recover. In July 2011, the parties took a short trip to Bobcaygeon, returning home a few days later. Although she reported Mr. Toth to be quiet on this trip, Ms. Toth thought their marriage was fine.

[27] A family vacation to Prince Edward Island had been planned for August 2011. Mr. Toth decided not to participate. Ms. Toth and Madison did. They returned on August 24, 2011. Mr. Toth had already vacated the matrimonial home, leaving her a note, saying:

Dear Deb

I have decided to move out for a while. I need some time to think alone. I have taken my personal belongings and have taken some money to live on. There is still enough for you and the kids to live on until I get paid again.

I am sorry to do this while you were away but it is probably for the best that you were not here. I will contact you in a while so we can talk about this.

Love

Steve

[28] As hereafter discussed, Ms. Toth was responsible for handling most of the family finances. From the evidence tendered, it appears the parties had a difference of opinion regarding their finances. Ms. Toth wanted to save for retirement. Mr. Toth felt money should be used to enjoy life at the present.

[29] The parties were good parents. They successfully raised three fine children. Unfortunately, Mr. Toth no longer has a relationship with the children. He blames Ms. Toth, incorrectly in my view. The children are adults and it is for Mr. Toth to repair the relationship.

(iv) Mediation

[30] Following separation, the parties retained collaborative family law lawyers. Negotiations were not successful and, in the Spring of 2012, there was a joint decision to engage in mediation. A mediator, Maggie Hall, met with the parties on a number of occasions from July to September. Ms. Hall delivered her report on December 3, 2012. It appears the issues in dispute had been resolved.

[31] Email communications between the lawyers indicated Mr. Toth had provided instructions for the preparation of a separation agreement based on the mediation report. At trial, he would deny giving such instructions.

[32] By April 2013, any prospect of resolution had disappeared. The parties would then retain litigation counsel. This action was commenced on July 8, 2013.

[33] At trial, Mr. Toth complained about Ms. Toth’s financial disclosure in the mediation process. The mediation report indicated her savings of $26,342, not $48,825 ($52,469 less joint accounts) as actually existed on the valuation date. However, the disclosure by Mr. Toth was also incomplete. He failed to report a bank account with $4,693 on deposit, a credit on his Mastercard account of $6,175 and his Stelco pension, later valued at $5,240.

[34] It remains to be seen if any benefit results from this litigation having regard to the mediation.

(v) Matrimonial Home

[35] The matrimonial home was purchased on November 13, 1984. Title was taken in the names of Steven Toth and Deborah Toth, as joint tenants. The purchase price was $58,500. A mortgage from The Toronto-Dominion Bank provided $38,500. The down payment was $20,000 and there would have been the usual expenses for legal fees and disbursements. The land transfer tax was $288.

[36] Ms. Toth said the $20,000 came from her pre-marriage savings. Bank records are no longer available for that time period.

[37] Mr. Toth does not deny that some of Ms. Toth’s savings were used for the purchase. He went on to say cash gifts were received from guests at their wedding and it was “possible” some of it was used to acquire the residence. Mr. Toth did not report any savings at that time.

[38] Neither party was able to report as to the amount of cash received at the wedding reception. The monies were deposited to their joint bank account. Ms. Toth stated the funds were used for furnishing the residence and other expenses.

[39] At some point, an addition was constructed. Mortgage financing was required.

[40] Following the case conference on October 24, 2013, the matrimonial home was listed for sale. A different realtor was engaged after the settlement conference on February 11, 2014. An offer to purchase was accepted in March 2014. The sale price was $475,000. Closing of the transaction occurred on June 25, 2014.

[41] Peter Dudzic was jointly retained as the real estate solicitor for the transaction. Although his reporting letter and trust ledger statement would have been delivered to both parties, these documents were not tendered in evidence. It appears the mortgage, municipal tax arrears, real estate agent’s commission and the solicitor’s account were paid from the sale proceeds. The balance is being held in trust by Mr. Dudzic, presumably in an interest bearing account, pending the outcome of this trial. The amount in trust is $364,904, according to Mr. Law. Ms. Majic says it is $368,887.

[42] The parties agree on the equal distribution of the trust funds, subject to any equalization payment and, no doubt, costs. The retroactive spousal support award, previously dealt with by McLaren J., has been paid from Mr. Toth’s share in the fund.

[43] There is a dispute regarding liability for the municipal tax arrears from December 1, 2013 to the closing date. Ms. Toth was responsible for payment of the tax in this period, pursuant to the order of McLaren J. granted January 20, 2014. She says she paid the taxes “to the best of my knowledge”. Mr. Toth claims she did not.

[44] The dispute could have been avoided by the parties or counsel making a simple inquiry of Mr. Dudzic or by presenting the solicitor’s reporting letter and trust ledger statement. Instead, the only documents tendered were as follows:

(a) Mr. Dudzic’s letter to the City of Hamilton, dated June 26, 2014 referring to an enclosed trust cheque for $7,910.25, representing the balance outstanding for municipal tax arrears; and

(b) the statement of adjustments indicating 2014 total taxes to be $4,151.69, the vendor payment of $2,088.34 and the vendor’s share to closing being $1,990.54, with a resultant adjustment in favour of the vendor for $97.80.

[45] Ms. Toth would be responsible for municipal taxes of approximately $2,340, being the $1,990 for 2014 to closing, plus the month of December 2013.

[46] In her closing submissions, Ms. Majic referred to a tax arrears statement from the City of Hamilton dated May 6, 2013 indicating tax arrears of $5,126.13. This was improper as the document had not been tendered in evidence. In any event, it remains unclear as to what period of time relates to the payment by Mr. Dudzic.

[47] There is a further issue as to Mr. Toth’s entitlement, if any, to occupation rent.

[48] Mr. Toth left the matrimonial home on August 14, 2011. Ms. Toth, and the children, continued to occupy the residence until June 25, 2014. For the most part, the parties shared mortgage, municipal tax to some extent and insurance expense until December 1, 2013. Ms. Toth paid the remaining household expense. Mr. Toth voluntarily paid spousal support of approximately $1,100 monthly. He discontinued payment in late 2012 until July 2013.

[49] The parties mistakenly stated that Mazza J. directed the sale of the matrimonial home at the case conference on October 24, 2013. Rather, it appears they simply agreed to list it for sale.

[50] Following separation, Ms. Toth advised Mr. Toth she did not want to sell the matrimonial home until Madison and Candice completed their undergraduate programs in 2013. Although Mr. Toth said he wanted the house sold, he did not take any steps to do so.

[51] Mr. Toth went on to say he was “surprised” when Mazza J. granted the order for sale. He indicated he had been content to allow Ms. Toth to remain in the house with the children as she had asked.

[52] Mr. Toth complained about Ms. Toth’s delay in listing the property and in the subsequent selection of a different realtor after the case conference. He referred to Madison interfering with the sale process and in allowing her dog to be present during showings to prospective purchasers. Ms. Toth denied the allegations. Neither realtor was called as a witness.

[53] No evidence was tendered regarding the quantum of reasonable occupation rent. Ms. Majic did not identify the time period, or the amount, for her client’s claim.

(vi) Incomes

[54] The employment incomes of the parties were as follows:

Ms. Toth Mr. Toth

2010 $19,914 $84,864

2011 $22,497 $87,243

2012 $31,726 $88,735

2013 $33,904 $88,285

Their incomes in 2014 are expected to be similar to that in 2013.

[55] In 2013, Mr. Toth withdrew $24,630 from his retirement savings plan. This resulted in taxable income being $112,915 for that year. Counsel agree that only employment income ought be considered with respect to the spousal support issue. I concur. Using retirement savings plan income in these circumstances leads to an artificial income and double dipping.

[56] Mr. Toth asks that income be imputed to Ms. Toth in the amount of $45,000, on the basis of deliberate underemployment. His evidence on this issue was brief, saying he expected her to resume full-time work after the children were in school, she could have pursued better employment and improve her skills and that she should have requested a raise and full-time hours before, not after, separation. No evidence was tendered as to other employment opportunities for Ms. Toth.

[57] In her testimony, Ms. Toth spoke of child care and household responsibilities and the resultant decision to work four days per week. She considered upgrading her employment skills and, in 2000, started taking university courses. Ms. Toth reported Mr. Toth being unsupportive of her studies given her age. Mr. Toth did not deny her comment.

[58] Ms. Toth went on to say her current position with Dr. McCallum is dependable and secure, unlike other jobs in the community. Ms. Toth was not challenged on this evidence.

(vii) Savings

[59] A significant dispute between the parties, and the focus of the trial, pertained to the savings accumulated by Ms. Toth. Mr. Toth is of the belief that Ms. Toth has not made complete disclosure of her assets. Further, on his behalf, Ms. Majic asserts Ms. Toth “… has been calculating and covert in her misappropriation of monies and disclosure well before the date of separation” and that there must be other undisclosed or “mystery” savings accounts.

[60] Ms. Toth emphatically denied this allegation, saying full disclosure has been provided. Ms. Toth previously offered to sign any authorizations requested by Mr. Toth so as to allow him to make direct inquiry of any financial institution he chose.

[61] The parties had the following joint accounts with funds on deposit as at the valuation date:

(i) First Ontario Credit Union – savings; $ 4,257.22

(ii) PC Financial – savings (mortgage); $ 850.10

and

(iii) PC Financial – chequing; $ 2,189.59

[62] Mr. Toth reported the following accounts:

(i) ING – savings; $ 4,693.07

and

(ii) Burgeonvest-Bick – RSP $18,234.00

The latter account is shown as the “book value”. As hereafter discussed, there is a minor dispute as to whether it should be “market value”. The account statements indicate the estimated market value on July 31, 2011 as $21,745.43 and on September 30, 2011 as $19,430.82.

[63] Ms. Toth disclosed 22 accounts, namely:

(i) TD Canada Trust

(four accounts on one statement) – RSP; $ 5,652.72

(ii) Burgeonvest-Bick / C1 Financial / Sun Life

(four accounts said to be one and the same) – RSP; $29,979.86

(iii) First Ontario Credit Union – share; $ 150.00

(iv) First Ontario Credit Union – RSP; $ 3,984.16

(v) First Ontario Credit Union – RSP; $ 1,494.57

(vi) First Ontario Credit Union – RSP; $ 3,644.66

(vii) ING / Tangerine – RSP; $ 2,458.92

(viii) ING / Tangerine – RSP; $ 1.28

(ix) ING / Tangerine – Madison / OSAP; $ 200.49

(x) ING / Tangerine – Deb / Personal; $ 0.00

(xi) ING / Tangerine – Candice / Ottawa; $ 0.00

(xii) ING / Tangerine – government deposit; $ 0.00

(xiii) ING / Tangerine – T.F.S.A. $ 8.29

(xiv) ING / Tangerine – Deb / RSP; $ 1,246.32

(xv) PC Financial – chequing; $ 0.00

[64] Ms. Toth assumed control of the three joint accounts following separation. The stated value of all accounts of Ms. Toth, including half of the joint accounts was $52,469.73, as set out in her final Net Family Property Statement. The stated values in her various financial statements were as follows:

(i) July 3, 2013 $53,292.03

(ii) March 25, 2014 $53,382.52

(iii) October 1, 2014 $52,469.73

(iv) November 17, 2014 $52,469.73

[65] As to the number of accounts, Ms. Toth said there were accounts for a special purpose, such as the joint accounts with Madison and Candice, while best available interest rates were the determining factor for the various retirement savings plans.

[66] Ms. Toth was responsible for managing the family finances. Their incomes were deposited to the joint chequing account. Excess funds were transferred to the joint savings account. Deposits to retirement savings plans occurred, Ms. Toth said, when sufficient funds were accumulated. Further, some plans were acquired using money gifted to Ms. Toth by her mother, such as the $4,000 in 2009 that initially went to a Tangerine account and later transferred.

[67] Ms. Toth testified as to always informing Mr. Toth as to what was occurring with “their money”. While Mr. Toth may not have known the exact amount on deposit, Ms. Toth said he was aware of all of the accounts. Mr. Toth also attended when she met with their financial advisor.

[68] Ms. Toth denied the allegation of establishing secret accounts. They had discussed retirement plans over the years and, she said, there was no reason to hide money. Although most of the RSP accounts were in her name, some being spousal plans, Ms. Toth referred to all of them as “our accounts”. Mr. Toth had a pension plan. Ms. Toth did not.

[69] Mr. Toth stated he was not made aware of the savings accumulated by Ms. Toth. In July 2011, he became concerned when he discovered a $10,000 payment on their joint line of credit. Mr. Toth asked Ms. Toth about the source of the funds. The response, he said, was savings from groceries.

[70] At this point, Mr. Toth asked to see all of the accounts. Some were brought up on the computer screen. Mr. Toth reported then instructing Ms. Toth to close all of the accounts and put the money into their joint chequing account. When that did not occur, Mr. Toth decided to move out.

[71] Mr. Toth is of the view that Ms. Toth has not been truthful in her financial disclosure. He expressed concern as to whether she was truthful about finances during the marriage. Mr. Toth does not believe Ms. Toth when she said there are no other accounts. No evidence was tendered by Mr. Toth in support of his opinion.

(viii) Assets on Date of Marriage

[72] There is a dispute regarding the value of assets as of the date of marriage.

[73] Mr. Toth reported owning several vehicles with an estimated value of $20,000. He did not obtain appraisal reports. Nevertheless, Ms. Toth does not challenge the stated amount. Mr. Toth did not have any savings.

[74] Ms. Toth indicated savings of $20,000 on deposit at Stelco Credit Union and furniture valued at $4,000. The savings, accumulated from 1975 to 1984, were used as the down payment on the matrimonial home, according to Ms. Toth, while the furniture had been acquired in 1983 when she moved into an apartment.

[75] Mr. Toth would not agree the funds for their residence came from Ms. Toth’s savings. He was of the view some unknown amount was from the cash gifts at their wedding. Further, in his opinion, the furniture had a value of $1,500 to $2,000.

[76] Bank records were not available as of the date of marriage, according to Ms. Toth. She did not obtain an appraisal of her furniture. Ms. Toth referred to the wedding cash being used to acquire furniture for their residence.

(ix) Stelco Pension

[77] Mr. Toth was employed by Stelco, now known as U.S. Steel Canada, from 1975 to 1987. A valuation report, prepared by David Wolgelerenter, dated November 27, 2014, indicates the “family law value” of Mr. Toth’s Stelco pension to be $5,240.

[78] Mr. Toth did not report the pension value in any of his financial statements or his net family property statement. This pension was not mentioned in his examination-in-chief.

[79] In cross-examination, Mr. Toth acknowledged that $5,240 is the pension value for this litigation. In re-examination, he said it was his prior understanding the pension had no value and, hence, a valuation report was not obtained earlier. Mr. Toth went on to say there is “potential” he will not receive any pension payments given the ongoing issues with U.S. Steel. No evidence was presented to support his belief.

(x) Financial Positions Post Separtion

[80] The financial positions of the parties have changed since the date of separation. As previously mentioned, the matrimonial home was sold and the net sale proceeds remain in the solicitor’s trust account. The following is a summary of other changes, having regard to the most recent financial statements filed and oral evidence.

(i) Ms. Toth

• according to her financial statement, sworn November 17, 2014, her income exceeds expenses;

• in January 2012, she borrowed $5,000 on the joint line of credit to retain a new solicitor (to be adjusted on equalization);

• gave her 2000 Dodge Neon vehicle to Madison and, in March 2014, purchased a 2013 Hyundai Elantra for $20,000, financing at $275 per month;

• savings increased from $52,469.73 on valuation date to $79,649.82 in November 2014, a total of $27,180.09

• her current debt, acquired since separation consists of a personal loan from her brother of $3,500, the balance owing on the vehicle and some unknown amount for legal fees.

(ii) Mr. Toth

• According to his financial statement, sworn November 7, 2014 his expenses exceed income;

• in May 2012, sold his 1999 Subaru vehicle and purchased a 2012 Mazda 3 for $24,000, financing at $290.13 per month;

• in the Spring of 2012, purchased a 1983 Honda V65 Magna motorcycle (similar to one owned prior to marriage) for $2,000;

• in April 2013, purchased a 2007 Harley Davidson Road King motorcycle for $16,000, financed on his line of credit;

• cashed in his Burgeonvest registered retirement savings plan in 2013 for $24,630.62, less income tax, to pay outstanding legal fees;

• his current debt, accumulated since separation consists of:

• $19,148 Scotiabank vehicle loan

• $35,964 Visa credit card (C.I.B.C.)

• $29,046 line of credit (C.I.B.C.)

• $5,000 personal loan from his mother

• unknown amount for legal fees.

[81] Considerable trial time was used in the cross-examination of Ms. Toth regarding her savings. According to Ms. Toth, and the documents filed, the increase in savings of $27,180.09 consists of the growth in her registered retirement savings accounts of $10,782.75, with the balance of $16,397.34 added to her tax free savings account and bank accounts.

[82] Ms. Toth reported this latter amount to include income tax refunds, the net amount received on the retroactive spousal support and ongoing surplus of income after expenses. She identified tax refunds of $2,266 in 2011, $2,889 in 2012 and $3,155 in 2013, for a total of $8,310. Following the sale of the matrimonial home, $23,461.82 was paid to Ms. Toth from the share of Mr. Toth pursuant to the prior court order. Ms. Toth stated $20,000 was paid for outstanding legal fees, with the balance deposited to savings.

[83] It is the savings of Ms. Toth during the marriage, along with the increase since separation, that is relied on by Mr. Toth in his suggestion there must be further undisclosed or “mystery” accounts.

(xi) Retirement Plans

[84] Mr. Toth will be eligible for retirement on a full pension in 2017, by achieving the “85 factor” of age, plus years of service. He will then be 60 years of age. Mr. Toth reported his plan is to continue working until at least 2017, perhaps longer depending on his health and financial situation.

[85] Ms. Toth does not have a pension plan. She advised that her intention is to work until age 65.

[86] The parties, as expected, engaged in some discussion in the years prior to separation regarding retirement plans.

[87] Ms. Toth referred to her registered retirement savings plan as “our savings” that were going to “their” retirement. She reported retirement discussions were based on being debt free and Mr. Toth being in receipt of a full pension. At the time of their discussions, there was debt owing on their mortgage and line of credit that, she said, would have been paid by age 65. They were to retire together.

[88] Ms. Toth indicated disagreement as to retirement plans. She said Mr. Toth wanted to sell the house, purchase a Winnebago and travel. Ms. Toth wanted to keep the house.

[89] With respect to the proposed motorhome or recreation vehicle, Ms. Toth reported that they attended shows to determine what was available. She said Mr. Toth would look at the largest and most expensive vehicles, describing his approach as “go big or go home”. Ms. Toth was not prepared to cash in registered retirement savings plans to purchase a Winnebago.

[90] Mr. Toth indicated there were discussions as to acquiring a recreation vehicle or a cabin up north. He understood Ms. Toth was not interested in travelling in a recreation vehicle on retirement. Mr. Toth wanted to purchase a smaller, used recreation vehicle for approximately $20,000. Being a licensed mechanic, he would be able to service and maintain the vehicle. Mr. Toth reported going to various motorhome shows over the years, some accompanied by Ms. Toth.

[91] At one point, Mr. Toth thought they had an agreement on acquiring a recreation vehicle. However, he reported Ms. Toth as then saying there was not enough money. That, he said, ended the discussion.

(xii) William Barrett

[92] William Barrett was called as a witness by Ms. Magic. He reported being a friend of both Mr. Toth and Ms. Toth since meeting them in 1979. Mr. Barrett was clearly uncomfortable testifying in this case. He had little to offer in terms of the issues in dispute.

[93] Mr. Barrett is a teacher and, like Mr. Toth, previously left employment at Stelco to pursue that career.

[94] Mr. Barrett and his wife socialized with the parties. He referred to discussions regarding retirement, particularly acquiring motorhomes and travelling together. Mr. Barrett confirmed Mr. Toth’s intention of acquiring a used vehicle for approximately $20,000. He also indicated Ms. Toth did not want to spend money on such a venture.

[95] Both Mr. Barrett and Mr. Toth are involved in Jeep events and rode motorcycles together in the past.

[96] Mr. Barrett understood Mr. Toth to say the family finances were better than he had thought previously and that Mr. Toth had trusted Ms. Toth in handling their family finances. Mr. Barrett also described Ms. Toth as trustworthy, although he never had any financial dealings with her.

B. Claims

[97] In her application, issued July 8, 2013, Ms. Toth presented the following claims:

(a) a divorce;

(b) spousal support, both ongoing and retroactive;

(c) child support for table amount and extraordinary expense, on a retroactive basis;

(d) life insurance to secure support; and

(e) equalization of net family properties.

[98] Pursuant to the order of Mazza J., granted February 11, 2014, Ms. Toth’s application was amended to claim a division of Mr. Toth’s pension.

[99] In his answer, dated July 23, 2013, Mr. Toth made the following claims:

(a) a divorce;

(b) equalization of net family properties;

(c) sale of matrimonial home;

(d) impute income to Ms. Toth;

(e) no child support payable by him;

(f) spousal support for Ms. Toth in keeping with the guidelines and her imputed income;

(g) occupation rent; and

(h) an accounting.

[100] At the commencement of trial, counsel reported there no longer was a claim for child support and that the parties had agreed on the division of Mr. Toth’s pension. Further, retroactive spousal support had been previously determined by McLaren J.

[101] Each party sought a divorce. In his opening address, Mr. Law requested the claim be severed from the corollary issues and proceed by uncontested motion in the usual manner. The stated reason for this proposal was to allow Ms. Toth to continue to access Mr. Toth’s health benefit plan as long as possible given her need, in particular, for prescription medication. Ms. Majic asked for the divorce to be granted at trial.

[102] I was prepared to grant the divorce as there was no dispute with the grounds for same. However, in the examination-in-chief of Mr. Toth, Ms. Majic neglected to ask the mandatory questions under the Divorce Act. In result, I direct the claim for divorce be severed. Leave is granted to either party to move for a divorce, on an uncontested basis, but without costs.

[103] In result, the following are the issues requiring determination:

(a) entitlement to spousal support and, if granted, the quantum of same;

(b) equalization of net family properties and any adjustments; and

(c) occupation rent.

C. Temporary Orders

(i) Case Management

[104] Mazza J. was assigned as the case management judge. He presided on the case conference, settlement conference and trial management conference and granted the following temporary orders:

(a) October 24, 2013

• counsel to prepare Affidavits of Documents to be exchanged within 14 days;

• Ms. Toth granted leave to file a reply by October 28, 2013;

Contrary to the testimony of both parties, the order did not direct the sale of the matrimonial home. In all likelihood, there was a discussion at the case conference. In any event, they listed the property for sale the following month.

(b) February 11, 2014

• parties to hire a new realtor for the matrimonial home after each has selected two names;

• disclosure is outstanding and motions may be brought with respect to that issue;

• Ms. Toth granted leave to amend her application within 30 days to claim a division of Mr. Toth’s pension.

(c) April 24, 2014

• case adjourned to the trial sittings of November 24, 2014.

(ii) Motion – November 29, 2013

[105] Ms. Toth served a motion for spousal support following the case conference. Mr. Toth had been providing voluntary payments, in a lesser amount than appropriate, but discontinued same in late 2012. The payments resumed once the action was initiated in July 2013. To their credit, the parties asked for a determination of retroactive spousal support, an issue routinely left to the trial judge.

[106] The motion was heard by McLaren J. on November 29, 2013. Her endorsement was released on January 20, 2014. The order granted included the following provisions:

(a) Mr. Toth to pay retroactive spousal support to Ms. Toth, from September 1, 2011 to November 30, 2013 in the amount of $23,461.82, in addition to any voluntary payments, with such amount to be paid from his share of the matrimonial home net sale proceeds;

(b) Mr. Toth to pay ongoing spousal support to Ms. Toth in the monthly amount of $1,803, commencing December 1, 2013; and

(c) Ms. Toth to be responsible for the mortgage, municipal taxes and insurance payments for the matrimonial home, commencing December 1, 2013.

[107] Following a review of written submissions from counsel, on April 2, 2014, McLaren J. released an endorsement directing Mr. Toth to pay costs to Ms. Toth in the amount of $2,500 for this motion.

[108] A review of the spousal support endorsement indicates the divergent positions of the parties.

[109] Ms. Toth had requested ongoing spousal support of $2,315 monthly, plus a retroactive amount of $40,817, using the high end of the SSAG’s based on a long term marriage and the extra expense she would incur for prescription medication due to her prior heart attack. In the alternative, Ms. Toth was prepared to credit Mr. Toth with one-half of the carrying costs for the matrimonial home, namely $9,640.

[110] Mr. Toth requested income be imputed to Ms. Toth in the amount of $45,000 on the basis of being deliberately underemployed. He also asked that income be imputed for rent that should have been paid to Ms. Toth by all three children and that he be given credit for the monthly payments provided to Candice while attending university in Ottawa. Mr. Toth proposed payment of spousal support in the mid-range of the SSAG’s of $1,10l; however that calculation was incorrectly based on paying guideline support for Candice at $791, a payment that was never made.

[111] In her analysis, McLaren J. determined income should not be imputed to Ms. Toth regarding her employment. She also recognized the health benefit coverage for Ms. Toth until the divorce was granted. Income was imputed of $400 monthly as Kyle and Madison did not pay rent. Some recognition was given for the voluntary payments by Mr. Toth to Candice.

[112] McLaren J. concluded mid-range SSAG of $2,078 was appropriate on a temporary basis, reduced to $1,903 after imputing rental income and further reduced to $1,803 for Mr. Toth’s payments to Candice. The retroactive award was based on the mid-range amount with credit for Mr. Toth’s contribution to the carrying costs of the matrimonial home.

[113] McLaren J. also directed that the amount of retroactive and ongoing spousal support could be adjusted by the trial judge, obviously as the full evidentiary record would then be available. Neither party sought such an adjustment.

[114] This is of particular interest on two points:

(i) no evidence was tendered to establish that Mr. Toth had an obligation to support Candice in the pursuit of a post-graduate degree. The payments were inconsistent with the treatment of the children’s undergraduate programs. Clearly, this was a voluntary payment and, had I been asked, I would have concluded such could not be used to artificially reduce Mr. Toth’s spousal support obligations. See: Greenglass v. Greenglass, 2010 ONCA 675. To her credit, Ms. Toth did not seek an adjustment; and

(ii) Mr. Toth complains about the prior voluntary payments and the retroactive amount not being claimed by Ms. Toth as income for tax purposes. Clearly, neither are income, nor is there an offsetting deduction, under the Income Tax Act. Had I been asked, and with evidence as to appropriate income tax treatment if reported and deducted as periodic payments under an agreement or court order, as provided in section 56.1 of the Act, I would have considered an adjustment. Ms. Majic made no such request.

(iii) Motion – October 24, 2014

[115] One month before the trial sittings, a motion came before McLaren J. Ms. Majic sought an order for questioning of Ms. Toth and an adjournment of the trial for that purpose.

[116] The motion was dismissed. McLaren J. expressed concern with the motion being presented on the eve of trial. She commented on the unacceptable six month or more delay in reaching trial if an adjournment was granted. McLaren J. also indicated the request for questioning could have been presented at a prior case management conference.

[117] The issue of costs is yet to be addressed by the motions judge.

D. Discussion and Analysis

(i) Overview

[118] Decisions result from the application of legal principles to the facts of the case. Findings of fact are based on the evidence presented at trial. While inferences can be drawn from circumstantial evidence, speculation as to what the evidence might be is not permitted.

[119] In this case, the position advanced by Mr. Toth is founded on speculation, a lack of due diligence and a misinterpretation of the evidence and legal principles. He presents serious allegations of misappropriation by Ms. Toth, without any evidence in support. Mr. Toth and his counsel, Ms. Majic, complain about the disclosure of Ms. Toth, yet made no effort to pursue the matter prior to trial. No attempt was even made to obtain and review documents that were available to him, such as the statements for the joint bank accounts and joint line of credit.

[120] And so, an unnecessary trial was required to determine straightforward issues. The result, as hereafter set forth, was predictable.

(ii) Disclosure

[121] Mr. Toth complains about the documentary disclosure provided by Ms. Toth. She provided statements as to the accounts showing the value as at or close to the valuation date. Ms. Majic refers to such as “snapshots”. In my view, Ms. Toth met the requirement under the Family Law Rules, although it would have been helpful to provide an account history so as to trace the funds.

[122] Ms. Majic has been complaining about the extent of disclosure throughout the litigation process. Disclosure is routinely addressed at the case conference and was identified at the settlement conference as outstanding. Indeed, Mazza J., on February 11, 2014 granted leave for motions regarding disclosure.

[123] Yet Ms. Majic did not pursue the matter until the eve of trial when she served a motion seeking an order for questioning and to adjourn the trial. Such delay is unacceptable. Any required motions should have been dealt with prior to the trial management conference.

[124] Further, Mr. Toth did not conduct his own due diligence. His disclosure was far from complete. The evidence indicated the parties’ incomes being deposited to a joint bank account. Ms. Toth reported the surplus funds from that account being used for the savings and retirement savings plans. The joint bank account, and also the joint line of credit, statements could easily have been obtained by either party. Ms. Toth is not obliged to produce documents available to Mr. Toth. He cannot complain about his own failure to make inquiry.

(iii) Request to Admit

[125] Rule 22(2) and (4) provides:

(2) Request to Admit – At any time by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for purposes of the case only, that a fact is true or that a document is genuine.

(4) Response Required Within 20 Days – The party on whom the request to admit is served is considered to have admitted, for the purposes of this case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days, …

[126] The following documents pertain to this issue:

(i) a request to admit by Ms. Toth dated March 25, 2014;

(ii) a response to request to admit by Mr. Toth dated April 14, 2014;

(iii) a request to admit by Mr. Toth dated April 22, 2014;

(iv) a response to request to admit by Ms. Toth dated May 12, 2014; and

(v) a request to admit by Ms. Toth dated September 25, 2014.

[127] During the cross-examination of Ms. Toth by Ms. Majic regarding the purported mystery accounts, Mr. Law raised an objection based on the failure of Mr. Toth to respond to the request to admit dated September 25, 2014. In a mid-trial ruling, I permitted cross-examination to continue having regard to Ms. Majic’s position regarding disclosure. Simply put, the validity of a request to admit is dependant upon the underlying disclosure. My ruling also directed the issue may be raised in final submissions once the evidentiary record has been presented in full. Mr. Law then renewed his request at the end of the trial.

[128] The request to admit by Ms. Toth dated September 25, 2014 sets forth each of her accounts in detail, with reference to the disclosure document, as previously described herein. Further, the following statements were made:

1. That the Applicant offered on February 28, 2014 to provide Authorizations and Directions to the financial institutions of the Respondent’s choosing to allow him to ascertain whether or not she had any assets as at the date of separation that have not been disclosed on her Financial Statements filed in this Application.

2. That the Respondent has not taken the Applicant up on the offer described in paragraph 1 above.

3. That the Respondent has no evidence whatsoever that the Applicant has not disclosed all of her assets on the date of separation.

4. That the Respondent has no documentary evidence whatsoever that the Applicant has not disclosed all of her assets on the date of separation.

[129] By virtue of Rule 22 (4), and given my ruling on disclosure, Mr. Toth is deemed to admit the facts as stated in the request to admit, such having been filed as an exhibit. See: for example, Children’s Aid Society of Algoma v. O. (M.), 2001 CanLII 37715 (ON CJ), [2001] O.J. No. 5220 (Ont. C.J.). Admissions are conclusive and cannot be withdrawn without leave of the court. See: Serra v. Serra, 2009 ONCA 105.

[130] The failure or neglect to respond to the request to admit is fatal to Mr. Toth’s position. In result, the equalization of net family properties becomes a simple mathematical exercise using the values of assets set forth in the request to admit subject only to any variation in the evidence at trial.

(iv) Credibility

[131] By virtue of the allegations presented in Ms. Majic’s opening statement and the nature of her cross-examination of Ms. Toth, credibility of the parties was put in issue. Having regard to the totality of evidence tendered at trial and my finding on disclosure, I am not persuaded credibility is a determining factor. However, it invites comment.

[132] The cross-examination of Ms. Toth was aggressive, but not effective. Ms. Toth consistently identified her assets and was not shaken by the challenges of Ms. Majic. Ms. Toth repeatedly denied the existence of undisclosed mystery accounts. She was well able to provide an explanation for each account.

[133] Ms. Majic accused Ms. Toth of lying on repeated occasions. This is a dangerous approach and should be restricted to cases where counsel has proof to support the accusation. Such was not the case here.

[134] There were differences in stated values of accounts in the various financial statements of Ms. Toth. However, the discrepancy between $52,469.73 and $53,382.52 is only $912.79, a de minimus point. Ms. Toth explained the different values satisfactorily by reference to the source documents used in preparation of each financial statement.

[135] Ms. Toth was also challenged as to various expenses declared in her financial statement. This was proper on the issue of spousal support. Some expenses were overstated while others, such as medical invoices covered by insurance, were not incurred. There is a difference, however, between an imperfect statement and a deliberate lie. Financial statements are never fully accurate. For example, Mr. Toth made similar mistakes in his financial statements.

[136] The accusation as to lying on the income tax returns was most troubling. It was also wrong. Ms. Majic confronted Ms. Toth as lying by not reporting voluntary spousal support and the lump sum payment to Canada Revenue Agency. Such are not included as income, nor can they be claimed as a deduction, by virtue of section 56.1, Income Tax Act. Lawyers are expected to know statutory provisions.

[137] In my view, Ms. Toth was a credible witness. She was clear and consistent in her testimony and acknowledged and corrected any mistakes in her financial statements. The aggressive cross-examination had no effect.

[138] In attacking Ms. Toth’s credibility, Ms. Majic exposed Mr. Toth to similar treatment.

[139] Mr. Toth was presented as an innocent, uninformed and naïve individual, wholly dependent on Ms. Toth in managing the family finances. Such is neither a reasonable account nor a correct presentation.

[140] Ms. Toth was primarily responsible for the family finances. Mr. Toth had some involvement and, at the very least, had a general understanding regarding their income, expenses and investments. For example, Ms. Toth’s income was revealed in his own income tax return. Mr. Toth would have signed the applications for spousal retirement plans and he claimed the deductions. He also attended meetings with their financial advisor. Mr. Toth also had the experience from managing his own business.

[141] In result, the evidence of Mr. Toth on financial matters was not credible. Much of his testimony regarding savings was speculative and, hence, of no value. Mr. Toth was illogical and inconsistent and was unable to even identify joint accounts until challenged.

[142] My impression of Mr. Toth is that he was simply unprepared for trial. He seemed unable to respond to simple questions in cross-examination. Mr. Toth should have reviewed the many documents prior to trial yet had difficulty in comprehending the information. Perhaps if he had conducted a due diligence inquiry regarding their joint accounts he would have better understood the state of their finances.

[143] Another point warrants comment. Following the separation, Mr. Toth went on a spending spree. He purchased a new car, even though he is a mechanic, yet complained when Ms. Toth replaced her 13 year old vehicle. Mr. Toth also acquired “toys”, namely two motorcycles. Yet he suggests paying spousal support is beyond his financial ability. Mr. Toth now has considerable debt, all being incurred since separation. Most lawyers caution clients about conduct and finances in initial meetings as such are often put under the microscope at trial.

[144] Lastly, I wish to comment on the savings strategy as it pertains to the retirement plans of the parties. Ms. Majic challenged Ms. Toth as to the accumulation of savings in her name. Such ignores the retirement strategy. Mr. Toth has a pension. Ms. Toth does not. Accordingly, it was logical at the time to invest the majority of savings in Ms. Toth’s name so that the parties could minimize income tax exposure.

(v) Spousal Support

[145] Ms. Toth seeks indefinite spousal support in the monthly amount of $1,983, being the mid-point in the Spousal Support Advisory Guidelines (“SSAG’s”). Mr. Toth is opposed to any support award given the division of his teacher’s pension. He also says income should be imputed to Ms. Toth on the basis of deliberate underemployment.

[146] This was a 27 year marriage with three children born to the relationship. There is a significant income disparity. Mr. Toth was always the principal income provider. But, Ms. Toth covered family expenses when Mr. Toth attempted to establish a business and when he attended university in pursuit of a teaching degree.

[147] Child care and household responsibilities limited Ms. Toth’s career advancement. Her attempt to pursue further education was not supported by Mr. Toth. I am satisfied that Ms. Toth has maximized her employment and earning potential. She has worked full time since, and as a result of, the separation. Her employment is secure. It is reasonable, given her experience and background. There was no evidence as to other potential employment. There is no merit in the claim to impute income to Ms. Toth. I reject the suggestion she is deliberately underemployed.

[148] The marriage was an economic partnership. Both parties contributed employment income that paid family expenses. They contributed to the education expense of their children. Of further interest was the ability of Ms. Toth in managing family finances so as to invest surplus funds for “their” future retirement.

[149] Having regard to the objectives of spousal support, as set out in section 15.2 , Divorce Act, I have difficulty in understanding Mr. Toth’s opposition to a support award.

[150] Need is not measured in terms of subsistence. Rather, it is the standard of living during cohabitation that is the relevant factor. In addition, the nature of their economic partnership allowed Mr. Toth to further his education and increase his income. Ms. Toth’s career was considered of secondary importance. The economic hardship to her on separation is obvious.

[151] In all of these circumstances, spousal support for Ms. Toth is both compensatory and non-compensatory in nature and within the meaning in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420.

[152] Ms. Majic submits spousal support is not warranted given the pension division and the concept of “double dipping” as articulated in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413. This argument, simply put, is wrong and misrepresents the principles in Boston. The pension is for future retirement. It is not yet in pay and will not be for some years.

[153] Double-dipping will only be a relevant consideration on a future motion to change when Mr. Toth has retired on a full pension. At the earliest, that event will occur in 2017. However, given his post-separation debt and the expense of this litigation, it is unlikely Mr. Toth can retire before age 65.

[154] Spousal support is not determined on the basis of future retirement income. Rather, it is calculated on current employment income.

[155] The only real issue is quantum. Yet even that is straightforward given the SSAG’s. The SSAG’s are guidelines only, not mandatory, but are a useful tool in considering the support award. Trial judges are required to explain a different result than as provided in the SSAG’s. See: Fisher v. Fisher, 2008 ONCA 11; and Gray v. Gray, 2014 ONCA 659.

[156] I see no reason to depart from the SSAG’s given the evidence presented at trial and the circumstances of the parties’ marriage.

[157] On incomes of $33,904 and $88,285, the SSAG range is $1,699 to $2,208. The mid-point is $1,983 monthly. This is the amount requested by Mr. Law, although quite frankly, there is a strong argument in favour of a higher award.

[158] On the prior motion, McLaren J. took into consideration Mr. Toth’s voluntary payments to Candice while attending graduate school and the free room and board provided by Ms. Toth for the children. Those factors, in my view, no longer apply. Ms. Toth has a modest but reasonable rental accommodation. The children are either pursuing education or with modest incomes and paying on student loans. It would not be appropriate to reduce spousal support due to the use of the premises by adult children in these circumstances. See, for example: Rilli v. Rilli, 2006 CanLII 34451 (ON SC), [2006] O.J. No. 4142 (Ont. S.C.J.).

[159] In addition, Ms. Toth will incur additional expense, after the divorce is granted, for health insurance.

[160] In result, spousal support is awarded to Ms. Toth, payable by Mr. Toth, in the monthly amount of $1,983, commencing December 1, 2014.

(vi) Mystery Accounts

[161] While issues pertaining to the alleged mystery accounts and the equalization of net family properties may be determined with reference to the request to admit, I propose to address them on the basis of the evidence tendered at trial.

[162] Mr. Toth “believes” Ms. Toth has undisclosed savings. He simply says she has not been truthful regarding financial disclosure. Ms. Majic submits there must be additional accounts given the post-separation increase in value of the disclosed accounts and her excess of income after expenses. Ms. Majic argues the only way Ms. Toth could have invested in these accounts was by redirecting family funds to her personal use. Ms. Majic went on to allege that Ms. Toth took joint money and put it in her pocket, that Ms. Toth misappropriated family funds and that there may be more accounts or money in a paper bag. Ms. Magic claims that Ms. Toth has “squirrelled” away money, presumably meaning hidden for later use.

[163] No evidence was tendered by or on behalf of Mr. Toth in support of these serious allegations. Inferences cannot be drawn from this evidence. Rather, the position articulated is based only on speculation.

[164] So, what do we learn from the evidence? Ms. Toth had the primary responsibility for managing the family finances but, as previously stated, Mr. Toth had a basic understanding of how she was investing excess funds. Ms. Toth accomplished the goal of saving for their retirement by careful budgeting. She is frugal by nature. Mr. Toth, on the other hand, would rather spend money on recreational activities without regard to future retirement.

[165] In July 2011, having then become aware of certain savings accounts, Mr. Toth instructed Ms. Toth to close the accounts and deposit the money to their joint chequing account. Such was not reasonable nor practical given that many of the accounts were retirement savings plans. Mr. Toth was so upset his instructions were not followed that he decided on separation.

[166] In 27 years, Ms. Toth was able to set aside joint funds in various savings accounts held by each of the parties. On the date of separation, these savings totalled approximately $48,816 in the name of Ms. Toth and about $25,321 in the name of Mr. Toth. There were also joint accounts. The total amount saved during the marriage is reasonable and consistent with the incomes and expenses of the family unit.

[167] Several other points raised by Ms. Majic invite comment.

[168] Ms. Majic made reference to the income tax returns of Ms. Toth that reported $104 in interest income. The argument was that investment income was not being reported to Canada Revenue Agency. This submission is incorrect. Income earned in the retirement savings plans is not taxable and, hence, is not reported on the tax return.

[169] Ms. Majic referred to the post-separation increase in Ms. Toth’s accounts, from $52,469 on August 14, 2011 to $79,649 on November 17, 2014. The argument is that this increase of $27,180 demonstrates the misappropriation of funds. Such ignores the evidence, namely:

(a) growth in the retirement savings plans, either as interest or increase in value of equity assets;

(b) added savings from the income tax refunds received by Ms. Toth in each of the past three years; and

(c) the net funds from receiving the retroactive spousal support award on the sale of the matrimonial home.

[170] Having reviewed the documentation filed in considerable detail, I am satisfied the increase in value was legitimate.

[171] By way of contrast, Mr. Toth’s retirement savings plan also increased in value. In 2013, he liquidated the plan for $24,630.

[172] Ms. Toth continued to carefully budget after the separation, adding to her savings to pay the litigation expense in due course. Mr. Toth took the opposite approach by liquidating assets, acquiring new items and, in so doing, substantially increasing his debt without regard to the expense of this case.

[173] In result, I conclude there are no mystery accounts. There is no “squirrel” in this case.

(vii) Equalization of Net Family Properties

[174] In the equalization calculation, there are several minor disputes requiring determination. There are also several adjustments that must be addressed.

[175] During the trial, I directed counsel to provide revised net family property statements during final submissions. These statements indicate the parties agree on most items, but disagree on apportionment. For example, as Ms. Toth retained the joint accounts. Mr. Law proposed an adjustment in favour of Mr. Toth for one half. On the other hand, Ms. Majic claims the full value of the accounts be credited to Ms. Toth on the equalization and then a further adjustment to Mr. Toth thereafter, an obvious accounting error.

[176] The net sale proceeds from the matrimonial home continue to be held by the real estate solicitor, in trust. Mr. Law reports the trust funds at $364,904. Ms. Majic says it is $368,887. Neither provided the lawyer’s trust fund ledger statement. Regardless, the equalization payment and adjustment, as hereafter determined, can be paid from Ms. Toth’s share in the trust funds.

(a) Disputed Items

(i) Assets on Date of Marriage

[177] Ms. Toth reported furniture valued at $4,000 and $20,000 on deposit in her bank account. As expected, no documentation was available from 1984. Ms. Toth indicated her savings were used several months later for the purchase of their matrimonial home. The deed and mortgage confirm a $20,000 down payment.

[178] Mr. Toth says the furniture had a value of $1,500 to $2,000, yet he shows $4,000 on his net family property statement, thus agreeing with Ms. Toth. Regardless, $4,000 is a reasonable amount for the furniture she had acquired for the apartment, and I so find.

[179] Mr. Toth does not accept Ms. Toth’s savings at $20,000, yet again he shows that amount in his net family property statement. He does not disagree some money came from Ms. Toth’s savings to purchase the residence, but says it was “possible” cash received at their wedding may also have been used. Mr. Toth did not report any savings of his own on the date of marriage. In all likelihood, the down payment came from Ms. Toth’s savings, and I so find. The cash from the wedding would have been used for the purchase expense, such as legal fees and land transfer tax, and for more furniture.

[180] Mr. Toth claims vehicles valued at $20,000. Ms. Toth does not challenge the amount as stated. I agree.

(ii) Stelco Pension

[181] The Family Law Value of Mr. Toth’s Stelco pension is $5,240. The report of David Wolgelerentan, dated November 27, 2014 was obtained on the eve of trial. The value of the pension is not in dispute.

[182] Mr. Toth does not report the Stelco pension as an asset on the basis, he says, that the pension will not likely be paid given the ongoing issues at U.S. Steel, the successor to Stelco. Ms. Majic, in closing submissions, says it is common knowledge that U.S. Steel is under court ordered protection and that it is unlikely Mr. Toth will ever receive any pension payment.

[183] If that submission is correct, evidence in support ought to have been presented at trial. The pension valuation report makes no reference to the status of the pension and of U.S. Steel. I am not prepared to take judicial notice based simply on counsel’s assertion.

[184] The onus was on Mr. Toth to present a value for this asset. There is no evidence upon which it can be said the pension has no value. The best evidence is the valuation report. In result, I find that the pension value of $5,240 must be included as an asset of Mr. Toth on the valuation date.

(iii) Mr. Toth’s Burgeonvest-Bick Account

[185] Mr. Toth’s retirement savings account with Burgeonvest-Bick had a “book value” on the valuation date of $18,234, as reported by the plan administrator. The estimated market value on July 31, 2011 and on September 30, 2011 averages at $20,588.13 (no statement was provided for August 31, 2011).

[186] Ms. Majic has used the book value while Mr. Law says it ought to be the market value for calculation purposes. Book value is artificial. Value of property, having regard to section 4, Family Law Act, is actual or market value. For comparison, it is noted that Mr. Toth liquidated the account in 2013, receiving $24,630.62, the actual value.

[187] Accordingly, I find Mr. Toth’s Burgeonvest-Bick account to have a value on the valuation date of $20,588.13.

(iv) Mr. Toth’s Credit Card

[188] Mr. Toth had a credit card through Canadian Tire Corporation. There was a credit balance of $6,175.79 on the valuation date. Mr. Toth did not report the asset in his financial statements or net family property statement. Rather, he incorrectly seeks a further credit in his favour as an adjustment.

[189] On August 9, 2011, Mr. Toth borrowed $10,000 on the joint line of credit and prepaid $8,800 on his credit card, resulting in the credit balance as above. At the time, Ms. Toth was in Prince Edward Island. Only Mr. Toth knew that separation was to occur five days later.

[190] Mr. Toth subsequently allowed Kyle to use his credit card to purchase motor vehicle parts. The total charge was $6,668.42.

[191] Nevertheless, the value on the valuation date is mandatory and, hence, I find that $6,175.79 must be shown as an asset.

(v) Joint Line of Credit

[192] In July 2011, the parties negotiated a “freeze” on their joint line of credit to obtain a lower interest rate. In result, the line of credit was split into two accounts, one with a fixed interest rate, the other on a variable rate. The account remained a joint debt and must be equally apportioned between the parties. I understand counsel to say the line of credit was paid from the closing funds following the sale of the matrimonial home.

[193] Mr. Toth incorrectly asserts that he is not liable for the increase in the line of credit after July 2011. Yet it was him who caused the increase by unilaterally borrowing $10,000 immediately prior to the separation.

[194] Neither counsel presented the line of credit statements in full. If there remains any accounting issues with respect to the line of credit account since the valuation date, I can be spoken to.

(vi) Gifts from Ms. Toth’s Mother

[195] On January 29, 2009, Ms. Toth opened a T.F.S.A. at Tangerine. The initial deposit of $4,000, she said, was a gift from her mother. Mr. Toth did not dispute that evidence. Ms. Toth reported receiving further gifts from her mother, as did her siblings, but did not quantify the amounts. By June 30, 2011, this account was at $10,805.84.

[196] Ms. Toth does not claim the value of the gifts as excluded property.

[197] On July 15, 2011, Ms. Toth withdrew $10,000 to pay down the joint line of credit and transferred $805.84 to her savings account.

[198] In result, Mr. Toth has already received the benefit of gifts to Ms. Toth.

(b) Calculation of Net Family Properties

[199] The following is a summary of the net family properties involving the above findings and items not in dispute. The value of the matrimonial home, mortgage and line of credit are not included due to the sale and deposit of the net sale proceeds to the real estate solicitor’s account.

Ms. Toth Mr. Toth

1. Value of Assets on Valuation Date

Vehicles $ 1,000.00 $ 1,000.00

Trailer $ 750.00 $ 750.00

TD Canada Trust - RSP $ 5,652.72

C.I. Investments - RSP $29,979.86

First Ontario - Share $ 150.00

• RSP $ 3,984.16

• RSP $ 1,494.57

• RSP $ 3,644.66

Tangerine - RSP $ 2,458.92

• RSP $ 1.28

• Savings $ 2,128.61 $ 2,128.61

• Madison $ 200.49

• T.F.S.A. $ 8.29

• RSP $ 1,246.32

PC Financial - chequing $ 1,094.80 $ 1,094.80

• savings $ 425.05 $ 425.05

Burgeonvest-Bick - RSP $20,588.13

ING - chequing $ 4,693.07

• savings $ 41.54

CTC - credit card credit $ 6,175.79

Stelco - pension $ 5,240.00

London Life - insurance $ 731.79

TOTAL VALUE OF PROPERTY

ON VALUATION DATE $54,951.52 $42,136.99

Ms. Toth Mr. Toth

2. Value of Debt on Valuation Date

Notional Tax on RSPs (20%) $ 9,692.50 $ 4,117.60

TOTAL DEBT ON VALUATION DATE $ 9,692.50 $ 4,117.60

3. Property on Date of Marriage

Household Items and Furniture $ 4,000.00

Stelco Savings Account $20,000.00

Vehicles $20,000.00

NET VALUE OF PROPERTY ON

DATE OF MARRIAGE $24,000.00 $20,000.00

4. Net Family Property $21,259.02 $18,019.39

5. Equalization Payment: Ms. Toth pays Mr. Toth $ 1,619.82

(c) Adjustments

[200] Several adjustments are required to account for matters since the valuation date, all resulting in credits to Mr. Toth as follows:

(a) Ms. Toth borrowed $5,000 on the joint line of credit in January 2012 to retain a prior lawyer – credit Mr. Toth $2,500.

(b) Ms. Toth retained the joint bank accounts:

• savings of $4,257.22 - credit Mr. Toth $2,128.61

• chequing of $2,189.60 - credit Mr. Toth $1,094.80

• savings of $ 850120 - credit Mr. Toth $ 425.05

(c) Tax arrears on the residence from December 2013 to closing that were the responsibility of Ms. Toth of $2,343.14 - credit Mr. Toth $1,171.57.

[201] Accordingly, the adjustments in favour of Mr. Toth total $7,320.03 and when added to the equalization payment, requires Ms. Toth to pay Mr. Toth $8,939.85 from her share of the house sale proceeds.

[202] By way of explanation, having regard to the evidence and the differing positions advanced by counsel:

(a) Ms. Majic incorrectly claims a full credit for the $5,000, an accounting error given that the line of credit was joint. Mr. Toth gets one half;

(b) the situation regarding the joint bank accounts is the same as above; and

(c) the onus was on Ms. Toth to prove she paid the taxes as required by the prior order of McLaren J. She testified payment was made but no documents, easily obtainable were provided. The real estate lawyer paid total tax arrears of $7,910.25. The statement of adjustments suggest 2104 taxes to closing were $1,990.54 and although stating $2,088.34 had been paid, such was simply shown for calculation purposes. I am not persuaded she paid the taxes as ordered. The approximate amount for December 2013 was $352.60 for a total of $2,343.14. Again, the credit is one half for a joint asset.

(viii) Occupation Rent

[203] Mr. Toth seeks an award for occupation rent. He did not specify the time period for his claim nor the amount sought. No evidence was tendered as to comparable rent.

[204] Ms. Toth opposes the claim on the basis of the evidentiary shortfall, there being no order for exclusive possession and the inadequate spousal support paid by Mr. Toth prior to the order of McLaren J.

[205] Mr. Toth vacated the matrimonial home on August 14, 2011 when Ms. Toth was in Prince Edward Island. She receive no notification until her return. There was no necessity or urgency for Mr. Toth’s departure.

[206] In his testimony, Mr. Toth said he never asked to have the house sold and that he was content to allow Ms. Toth and the children to reside in it for two years, as she had asked, until the children completed their undergraduate programs.

[207] The parties agreed to list the property for sale at or following the case conference on October 24, 2013. It was not until the Spring of 2014 that an offer to purchase was received. Family homes do not sell during the winter months to the same extent as in the Spring or Summer.

[208] Ms. Toth was responsible for the mortgage, taxes and insurance from December 1, 2013 as required by the order of McLaren J. Prior to the spousal support order, Ms. Toth had to cover family expenses on a reduced level of support although Mr. Toth made a contribution to the mortgage. For six months, Mr. Toth refused to pay any spousal support, only reinstating voluntary payments in July 2013.

[209] Mr. Toth complains about the delay in the sale process after the agreement to list the property. Much was made as to correspondence between counsel that, in my view, is not admissible evidence and certainly cannot be considered for the truth of its contents. None of the realtors were called as witnesses. They should have. Mr. Toth had little to say himself on this issue.

[210] There may be a basis for a modest claim for occupation rent after August 2013 but there was no evidentiary foundation upon which a determination could be made. The claim fails on the evidence of Mr. Toth alone. The claim is dismissed.

(ix) Life Insurance

[211] Mr. Law seeks an order requiring Mr. Toth to irrevocably designate Ms. Toth as the beneficiary on his life insurance policy with Transamerica Life as security for the spousal support award pursuant to section 34 (1)(i).

[212] The Transamerica Life policy, according to Mr. Toth’s financial statement, has a face value of $100,000. It appears to be a term policy. Ms. Toth is said to be the beneficiary.

[213] Given the amount of debt Mr. Toth has incurred since separation and the expense of this litigation, security for the support obligation is of obvious necessity.

[214] Ms. Majic did not address the issue in her submissions other than to say life insurance was not required as there should be no support payable.

[215] In result, I direct Mr. Toth to maintain the life insurance policy with Transamerica Life, or obtain a similar policy with another life insurance company, with coverage of $100,000 and to irrevocably designate Ms. Toth as the beneficiary of the policy for so long as he is obligated to pay spousal support to her.

E. Summary

[216] A final order is granted on the terms set forth in these reasons. All other claims are dismissed. The monies held in trust by Mr. Dudzic are not to be disbursed until the resolution of the issue of costs. A support deduction order shall issue.

[217] If the parties are unable to agree on the issue of costs, brief written submissions, along with any offers to settle or other supporting documents, are to be delivered to my chambers in Cayuga within 30 days of the release of this decision.

Released: February 27, 2015 D.J. Gordon J.

CITATION: Toth v. Toth, 2015 ONSC 1174

COURT FILE NO.: D1085-13

DATE: 2014-02-27

ONTARIO

SUPERIOR COURT OF JUSTICE

Deborah Lynn Toth

Applicant

– and –

Steven Joseph Toth

Respondent

REASONS FOR DECISION

D.J. Gordon J.

Released: February 27, 2015

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