Issues

[1] The parties married in 1982. They separated for a few months in 1997 and then reconciled until their final separation in 2001.

[2] The Applicant, Ms. Gilmore, filed an Application, on May 24, 2013, for on-going and retroactive child support, equalization, an extension of the limitation period for equalization, and a divorce.

[3] By way of motion served on July 22, 2014, she seeks a declaration that three youngest of the parties’ children - Christopher, Patrick, and Heather - were children of the marriage on the date she filed the Application.

[4] Secondly, she seeks a temporary order for the Respondent to contribute to ongoing section 7 Child Support Guideline (CSG) expenses for Patrick and Heather’s post-secondary education.

[5] Thirdly, she seeks a preservation order in relation to the Respondent’s assets.

[6] Fourthly, she seeks an order requiring the Respondent to provide a valuation for his pension with his current employer.

[7] By way of counter-motion, the Respondent, Mr. Gilmore, seeks an order dismissing Ms. Gilmore’s equalization claim on the basis that the claim was made outside the limitation period.

Background regarding “Child of the Marriage”

[8] Christopher was born on August 21, 1986.

[9] On the date of the Application, he was 26 years old and in the summer semester of his third year at Carleton University, with a major in History and a minor in Political Science.

[10] The record indicates that he may have been living with his fiancée on the date of the Application but the court finds that the evidence does not support a finding that he was living with his fiancée on that date.

[11] The evidence on this point comes from Ms. Gilmore’s questioning when she was asked, “And they started residing together when, to your knowledge”, and she responded, “He moved in with her the end of May 2000 – this is – 2013 – they married in August of 2013”.

[12] Counsel for Mr. Gilmore suggests that Ms. Gilmore’s answer establishes that Christopher was living with his fiancée on May 24, 2013. The court does not agree. The answer is not clear and should have been clarified if Mr. Gilmore wished to reply upon it. It is not clear whether Ms. Gilmore was saying that Christopher resided with his fiancée before marriage or upon marriage. More importantly, however, even if this answer supports a finding that they lived together before marriage, the earliest date indicated is “the end of May, 2013”; there is no evidentiary basis upon which to determine whether that was before or after May 24, 2013.

[13] Accordingly, the court is not satisfied on the evidence that Christopher was likely living with his fiancée on the date of the Application.

[14] Even if Christopher was living with his fiancée on the date of the Application, however, Ms. Gilmore says that at the time of the Application, Christopher had finished his winter semester and had started the summer semester and was dependent on her for support. There is no evidence to the contrary.

[15] Christopher graduated in 2014 and is now teaching English at the Danish embassy in Pakistan.

[16] Patrick was born on May 22, 1989.

[17] On the date of the Application, he was 24 years old and between his second and third year at the University of Guelph, with a double major in English and Political Science.

[18] On the date the motion was argued, Patrick was living in residence during his fourth year at the University of Guelph. He aspires to go to law school.

[19] Heather was born on May 5, 1991.

[20] On the date of the Application, she was 22 years old and taking university admission courses at the Adult Learning Centre (ALC) in Barrie.

[21] On the date the motion was argued, Heather was in her second year at the University of Guelph, with a major in Classical and Museum Studies. She aspires to become a professor.

[22] None of these children followed the most expeditious or common route to post-secondary education, i.e. completing grades one to twelve in twelve years, and then entering a post-secondary institution.

[23] Christopher was identified as having significant scholastic challenges in 1994 when he was in grade two. As a result, he was put on an Individual Education Plan (IEP) from grade three until grade eight. His challenges included: being late for class, being distracted, motor skills deficits, social interaction deficits, organizational deficits, difficulty with writing, math, and problem solving, and being easily frustrated. He was placed on a modified curriculum.

[24] In grade nine and ten Christopher was placed into the “Change Programme” at his high school which had a small student teacher ratio.

[25] Prior to grade eleven, his mother and siblings moved to a new school district. Christopher’s new high school would not recognize his IEP and gave him no individualized attention. He often missed or was late for class, he experienced social anxiety at school, and he had concentration problems. As a result, he did not obtain any credits that year.

[26] His mother had him transferred to a different high school for the next year but he experienced similar difficulties and obtained no credits that year either.

[27] In the fall of 2004, at age 18, he enrolled at the ALC in Barrie where he obtained two credits.

[28] In September of 2005, he enrolled in the Katimavik programme for a year. The programme was directed at vulnerable and disadvantaged youth. It involved traveling across Canada, doing unpaid work during the day and volunteer work in evenings and on weekends. He did very well in the programme and obtained the equivalent of seven credits.

[29] In September of 2006, Christopher returned to the ALC and obtained nine credits over the year.

[30] The following year he obtained three credits in the fall programme.

[31] As a result, he graduated from grade twelve in February of 2008, at age 21.

[32] In July of 2008, he completed a Teach English to Speakers of Other Languages (TESOL) course.

[33] He then taught English as a volunteer in Mexico from November of 2008 until April of 2009.

[34] In September of 2009, at age 23, he started as a full-time student at Carleton.

[35] As noted earlier, he graduated in 2014, at age 27, and is currently employed, teaching English.

[36] He owes $62,559 to the Ontario Student Assistance Programme (OSAP), $10,000 to the Royal Bank for a student line of credit, and $5,000 to the Royal Bank for a credit card.

[37] Ms. Gilmore says that she contributed at least $10,000 to his post-secondary education.

[38] Patrick was on an IEP from grade five until grade eleven. His challenges included: poor organizational skills, difficulties with writing and math, and poor self-esteem.

[39] When he was sixteen years old, he experienced suicidal ideation and started cutting himself. He feared his father and other men. He underwent a psychiatric assessment and was diagnosed with depression.

[40] When he was eighteen years old, in 2008, he suggested to the administration at his high school, and they concurred, that his continuing placement in grade nine or ten classrooms was not meeting his needs.

[41] He had obtained only eight credits over five and a half years at the high school. He was working part-time as a dishwasher.

[42] Patrick started night courses at the ALC in 2008 and continued there, while working part-time, until he graduated from grade twelve in June of 2011, at age 22.

[43] In September of 2011, he started attending classes full-time at the University of Guelph.

[44] Patrick was named to the Dean’s Honours List at Guelph in the winter term of 2014.

[45] He is now 25 years old and expects to graduate this year.

[46] He owes more than $33,000 to OSAP.

[47] Ms. Gilmore has contributed more than $6,000 to his post-secondary education.

[48] Heather was 11 years old when her parents separated. She withdrew socially and internalized emotions such as anger, frustration, and fear. She started acting aggressively in elementary school and was sent home as a result of fighting. She had low self-esteem, lacked focus, and was not motivated at school. She has experienced chronic abdominal pain for many years and, as a result, was often absent from elementary school and high school where she was enrolled full-time. She started working part-time as a dishwasher at age 15. She failed a number of high school courses and did not complete a number of others. She graduated from grade twelve, at age 20, in 2011.

[49] From September of 2011 until May of 2013, Heather went to night classes at the ALC and took correspondence courses, while working part-time, in order to obtain credits that were required for her to apply to university.

[50] She started as a full-time student at Guelph in September of 2013, at age 22.

[51] She is now 23 years old and, at the time the motion was argued, was in her second year at the University of Guelph, where she rents a room.

Positions of the Parties regarding “Child of the Marriage”

[52] There is a disagreement between the parties about what caused the children to take their delayed paths to university, where they have all done well.

[53] Mr. Gilmore suggests, in his Affidavit, upon which he was cross-examined, that the children must simply have chosen not apply themselves while in high school.

[54] He suggests that they were unmotivated and he blames Ms. Gilmore for not ensuring that the children applied themselves. He blames the children for “frittering away many of their teenage years” and argues that this happened because he was not in a position to influence their school work after separation. He suggests that each of the children simply chose to “drop out” of high school for a period of time and he points to their success in university as proof that they could have done well in high school if they had applied themselves.

[55] Mr. Gilmore says that there were several reasons that he was not in a position to influence the children’s progress at school.

[56] He notes that not long after separation, Ms. Gilmore moved, with the children, from Georgetown to Innisfil Township. He says that, because of their move, he was only able to see the children “from time to time”, and only on weekends, and those occasions were “somewhat sporadic” because it was financially difficult for him to drive to Innisfil, “which could be three or four hours on weekends with the traffic”, to pick them up.

[57] Mr. Gilmore also maintains that the children became less interested in spending time with him, rather than being with their friends in Innisfil, although, he notes, he would see them for breakfast at a Tim Horton’s once a year around Christmas.

[58] As well, he states, he “could sense” that the children “unfairly” blamed him for the separation, as well as “many of the challenges they faced after separation” and he blames Ms. Gilmore for influencing their feelings and perceptions in that regard.

[59] Ms. Gilmore and the children maintain, however, that the children have always been open to a relationship with Mr. Gilmore and it is him who has not made a significant effort to support a relationship with them – until after Ms. Gilmore made her claim for child support.

[60] The court finds that it is not necessary to review Ms. Gilmore’s quite different explanation for the delayed path taken by the children because, as discussed below, the court is satisfied, on a balance of probabilities, based on the evidence already outlined, that all three children were children of the marriage on the date of the Application.

Analysis regarding “Child of the Marriage”

[61] Section 2 (1) (b) of the Divorce Act defines “child of the marriage” as “a child of two spouses or former spouses, who, at the material time, is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

[62] On May 24, 2013, Christopher was in the summer semester of his third year at Carleton. Whether or not he was living with his fiancée on that day (and the court is not satisfied that he likely was), the evidence is uncontradicted that he was relying on Ms. Gilmore for financial support at that time. Although he earned some income while he was in university, he earned less than $5,000 per year. By the summer of 2014, he had accumulated a very substantial debt to OSAP and to the Royal Bank. Furthermore, Ms. Gilmore’s uncontradicted evidence was that she had contributed at least $10,000 to his post-secondary education by that time. Although he was 26 years old on the date of the Application, which is certainly older than usual to be finishing third year of a first degree, the evidence provides a reasonable explanation for the delay.

[63] The court finds that the evidence does not support Mr. Gilmore’s suggestion that Christopher simply did not apply himself at school before going to university and that Ms. Gilmore is to blame, or that Christopher would have done better if Mr. Gilmore had a greater opportunity to influence his work habits in school.

[64] Christopher was identified as having significant scholastic challenges in grade two – prior to the parties’ temporary first separation. He was on an IEP each year while the parties were reconciled from 1995 to 2001. Mr. Gilmore must have been aware of Christopher’s challenges before separation (unless he was irresponsible about Christopher’s education) and yet he indicates no basis upon which he reasonably could have believed that those serious challenges disappeared after separation. He suggests that Christopher would have done better in high school if he had had more contact with Mr. Gilmore – but he provides no evidence that he did anything to help Christopher with his IEP while they were living in the same house; to the contrary, he simply blames Ms. Gilmore for not being able to get all the children to school on time.

[65] It is unfortunate that Christopher’s new high schools did not provide him with an IEP. That decision was obviously beyond his control. His decision to enrol in the ALC in 2004, after two unsuccessful years in high school without an IEP, was reasonable and appropriate. His decision to participate in the Katimavik programme was also reasonable and appropriate given his academic struggles and social anxiety. Similarly, his decision to resume studies with the ALC until he finished grade 12 in February of 2008 was reasonable and appropriate. The same is true of his completion of the TESOL course and his volunteer experience teaching English in Mexico before starting at Carleton.

[66] The court has no hesitation finding, on a balance of probabilities, that Christopher was a child of the marriage on May 24, 2013.

[67] On May 24, 2013, Patrick was between second and third year of his programme at Guelph. The evidence is uncontradicted that he was relying on Ms. Gilmore for financial support at that time. The court has significant doubt whether his annual part-time work income that varied between $10,721 and $13,766 during the period of 2009 to 2011 provided him with adequate means to be self-sufficient during that period of time, but the issue of retroactive support was not part of the motion. Nevertheless, bearing that income in mind, along with Patrick’s earned income of $3,929 in 2012 and $4,112 in 2013, the court finds that his income was insufficient for him to be self-sufficient on the date of the Application. And, by May of 2014, he had accumulated a substantial debt to OSAP. Furthermore, Ms. Gilmore’s uncontradicted evidence is that she had provided him with over $6,000 toward his post-secondary education by May of 2014. Although he was 24 years old on the date of the Application, which is certainly older than usual to be finishing second year of a first degree, the evidence provides a reasonable explanation for the delay.

[68] The court finds that the evidence does not support Mr. Gilmore’s suggestion that Patrick simply did not apply himself at school before going to university and that Ms. Gilmore is to blame, or that Patrick would have done better if Mr. Gilmore had a greater opportunity to influence his work habits in school.

[69] Patrick was identified as having significant scholastic challenges in grade five – prior to the parties’ final separation. He was on an IEP when the parties separated. Mr. Gilmore must have been aware of Patrick’s challenges before separation (unless he was irresponsible about Patrick’s education) and the evidence provides no basis upon which he reasonably could have believed that those serious challenges disappeared after separation. He suggests that Patrick would have done better in high school if he had had more contact with Mr. Gilmore – but he provides no evidence that he did anything to help Patrick with his IEP while they were living in the same house; to the contrary, as noted earlier, he simply blames Ms. Gilmore for not being able to get all the children to school on time.

[70] Patrick was on an IEP until grade 11. By that time, he had poor self-esteem, had experienced suicidal ideation, was cutting himself, and was diagnosed with depression. His decision to leave high school and enrol in the ALC in 2008 was supported by the school administration and was reasonable and appropriate. Over the next several years, while working part-time, he took courses at the ALC to qualify for university admission. The court finds that was a reasonable and appropriate path for him to follow given the serious difficulties he had experienced up to that point.

[71] The court has no hesitation finding, on a balance of probabilities, that Patrick was a child of the marriage on May 24, 2013.

[72] On May 24, 2013, Heather was taking university admission courses at the ALC. The evidence is uncontradicted that she was relying on Ms. Gilmore for financial support at that time.

[73] Ms. Gilmore says that as at July 21, 2014, Heather owed $15,885 to OSAP and Ms. Gilmore had contributed at least $10,000 toward her post-secondary education. There is no evidence to the contrary. The court has significant doubt whether Heather’s part-time work income of $9,793 in 2011 and $11,027 in 2012 provided her with adequate means to be self-sufficient during that period of time, but the issue of retroactive support was not part of the motion. Nevertheless, bearing that income in mind, along with her earned income of $7,465 in 2013, the court finds that her income was insufficient for her to be self-sufficient on the date of the Application.

[74] Although she was 22 years old on the date of the Application, which is certainly older than usual to be obtaining the final credits required to start university, the evidence provides a reasonable explanation for why her education was delayed and, it is important to bear in mind, she did start at the University of Guelph the following September.

[75] The court finds that the evidence does not support Mr. Gilmore’s suggestion that Heather simply did not apply herself at school before going to university and that Ms. Gilmore is to blame, or that Heather would have done better if Mr. Gilmore had a greater opportunity to influence her work habits in school.

[76] Heather was eleven years old at the time of the parties’ final separation. Regardless of other factors (discussed below), mentioned by Ms. Gilmore and the children, that may have affected Heather at that time, her parents’ separation may, by itself, explain her social withdrawal and her feelings of anger, frustration, and fear. Whatever the cause, she acted out aggressively in elementary school and was sent home for fighting. Clearly, her ability to adjust to and cope with the school environment was compromised. Her poor attendance in elementary school and high school and her feelings of low self-esteem and low motivation may also have been the aftermath of the separation. She also experienced chronic abdominal pain that affected her school attendance and, as a result, would have affected her performance as well. Despite these serious challenges, she managed to graduate from high school in June of 2011 at age 20. Her decision to take courses at the ALC, while working part-time, over the ensuing two years, so that she could apply to university, was reasonable and appropriate given her circumstances.

[77] The court has no hesitation finding, on a balance of probabilities, that Heather was a child of the marriage on May 24, 2013.

[78] Although the court did not find it necessary, for the purpose of determining whether the three children were children of the marriage on the date of the Application, to resolve the disagreement between the parties about why the children’s path to post-secondary education was delayed, the court finds it appropriate to mention that Ms. Gilmore and the children provided evidence that Mr. Gilmore was an angry and abusive alcoholic during the marriage, and that he turned the family home a “war zone”. He was charged criminally around the time of the first separation and pleaded guilty to assaulting Ms. Gilmore. Ms. Gilmore, Patrick, Heather, and their elder sibling, Robert, provided evidence that Mr. Gilmore was repeatedly physically, verbally, and emotionally abusive to Ms. Gilmore and the children. Heather provided evidence indicating that she has blocked out some of her memory of the family’s pre-separation history.

[79] If true, these allegations provide an additional explanation for Christopher’s serious social and scholastic challenges from grade two onward. The same is true with respect to Patrick’s fear of his father and other men, his suicidal ideation, his cutting of himself, and his depression, as well as his social and scholastic difficulties from grade five onward. And the same is true with respect to Heather’s post-separation aggression at school, her low self-esteem, her lack of motivation, and her scholastic difficulties. Such evidence supports an inference that all three children had difficulty in high school not simply due to the separation but also as a result of having lived in an abusive home environment for a lengthy period of time.

[80] Mr. Gilmore denied the allegations of abuse but the court did not find his denials convincing, particularly since he wrote a letter to Ms. Gilmore around the time of their first separation saying, “I realize with horror that I’ve become – what I become when drunk, an abuser of the person(s) I love”.

[81] His efforts to explain away his letter and his conviction for assault were not persuasive.

On-going Support

[82] The parties agree that the current ratio between the total of Mr. Gilmore’s income and Ms. Gilmore’s income is about 65 percent for Mr. Gilmore’s income and 35 percent for Ms. Gilmore’s income.

[83] They disagree about how to determine the total amount of on-going post-secondary costs for Patrick and Heather that should be shared by the parties on a temporary basis.

[84] Ms. Gilmore suggests that each child should be responsible for one third of their current costs and the parties should split the remaining two thirds pro rata. She suggests that Patrick’s on-going post-secondary costs are about $2,000 per month and Heather’s are about $2,225 per month. Base on this premise, Ms. Gilmore’s proposal means that Mr. Gilmore should pay $866 per month toward Patrick’s post-secondary education and $964 per month toward Heather’s post-secondary education on an on-going temporary basis.

[85] Mr. Gilmore suggests that guidance should be taken from the amount Ms. Gilmore says she has already contributed to Patrick’s and Heather’s post-secondary expenses. Assuming that her contributions are a fair estimate of her 35 percent share of what the parties should split, then, Mr. Gilmore suggests, he should pay an amount that would result in each party contributing their pro rata share. Based on this premise, Mr. Gilmore proposes that he should pay $341 per month toward Patrick’s post-secondary education and $255 per month toward Heather’s post-secondary education on an on-going temporary basis.

[86] Mr. Gilmore’s 2013 income was about $90,000. His current spouse’s income is about $45,000. He says that she contributes $800 per month towards their shared expenses. Mr. Gilmore is 60 years old. He has about $156,000 in RRSPs and debts of about $12,000.

[87] Having considered, but not repeated, all of the evidence about the income histories of the parties and the children, the evidence about the children’s loans, bursaries, and scholarships, the evidence about the children’s post-secondary expenses, and the fact that Mr. Gilmore will be contributing to the post-secondary education for two of his children at the same time, until Patrick completes his degree, the court finds, on a temporary basis, that commencing August 1, 2014, Mr. Gilmore should pay $750 per month as his contribution towards Patrick’s post-secondary expenses until and including April 1, 2015, and $750 per month as his contribution towards Heather’s post-secondary expenses until and including April 1, 2015, and commencing May 1, 2015, Mr. Gilmore should pay $950 per month as his contribution towards Heather’s post-secondary expenses until and including April 1, 2017.

Background regarding Equalization Limitation Period

[88] At the time the parties separated in 2001, Mr. Gilmore was unemployed. Ms. Gilmore was earning less than $30,000 per year.

[89] Ms. Gilmore retained counsel and her lawyer, Mr. Ashbee, had a resolution discussion with Mr. Gilmore by telephone.

[90] It was agreed that the parties would divide all debts and assets equally.

[91] It was also agreed that, without prejudice to equalization, the matrimonial home would be sold and that, from the sale proceeds, Ms. Gilmore would receive $30,000, Mr. Gilmore would receive $5,000, and the balance would be used to pay down debts.

[92] It was agreed that Ms. Gilmore would receive the $30,000 to allow her to purchase a home for herself and the parties’ four children. It was also agreed that the $30,000 payment would be an advance on her share of equalization and that Mr. Gilmore would be permitted to keep $61,000 in RRSPs pending a final settlement.

[93] It was also agreed that this arrangement was on a short term basis with a full settlement to be reached when Mr. Gilmore obtained full-time employment.

[94] On March 26, 2002, Mr. Ashbee sent Mr. Gilmore a letter by mail confirming the terms of the agreement.

[95] Mr. Gilmore denies receiving the letter from Mr. Ashbee but he did not deny, in his Affidavit of August 14, 2014, or during cross-examination, that the letter accurately set out the terms of the parties’ agreement.

[96] In fact, Mr. Gilmore characterizes the agreement in the following terms, “I agreed to give Nancy essentially everything she was asking for” (paragraph 14 of his Affidavit). He explains that the exception was that he negotiated the $5,000 payment to himself.

[97] Mr. Gilmore says that he diligently looked for work after the house sale closed.

[98] He also says that Ms. Gilmore, “would constantly question me about what was happening with my job search and ‘reminding’ me that she and the children were in need of money and that I should have found a job already and been paying support. She would demand to know what I was doing to look for work, who I applied for jobs with, if I got any interviews, and would follow up after the fact to ask me to detail for her exactly what happened during my interviews” (paragraph 16 of his Affidavit).

[99] Mr. Gilmore says that Ms. Gilmore continued to ask these questions constantly for about a year, and then their communications became “sparse” and, by 2003, he and Ms. Gilmore only communicated on the occasions he would pick up the children for a weekend.

[100] Mr. Gilmore started living with his current spouse in 2003.

[101] In 2004, Mr. Gilmore obtained full-time employment with his current employer.

[102] That year he started paying voluntary child support of about $200 per month.

[103] In 2006 Mr. Gilmore increased his voluntary child support payments to $325 per month.

[104] Mr. Gilmore never told Ms. Gilmore that he was employed full-time.

[105] He says that he didn’t tell her because she didn’t ask. He also says that he forgot about the parties’ agreement that final settlement of the financial issues arising from the separation was on hold until he obtained full-time employment.

[106] Ms. Gilmore says that, from separation until 2011, she repeatedly asked Mr. Gilmore whether he was working full-time, and his answer, from 2004 onward, was that he was working “here and there” and that he could only afford to pay the amount of child support he was paying because his new spouse was working. In fact, many of the child support payments were sent to Ms. Gilmore by Mr. Gilmore’s new spouse.

[107] In November of 2011, Mr. Gilmore informed Ms. Gilmore that he would be terminating child support in 2013 when Heather turned 21 years old. Ms. Gilmore asked a friend to search the internet to see if she could find any information about Mr. Gilmore. The friend discovered on the internet that Mr. Gilmore was employed full-time in his current position. Ms. Gilmore sought legal assistance and, eventually, commenced the current Application.

Analysis regarding Equalization Limitation Period

[108] Section 7 (3) (b) of the Family Law Act establishes a limitation period of six years from the date of separation for an Application for equalization.

[109] Section 2 (8) of that Act allows a court to extend a time prescribed by the Act if it is satisfied that, (a) there are apparent grounds for relief, (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

[110] Mr. Gilmore suggests that there are no apparent grounds for relief because the maximum value of Ms. Gilmore’s equalization claim is only around $6,000 and it could be less.

[111] There is, however, no minimum amount required for an equalization claim. Accordingly, this is not a basis upon which to dismiss Ms. Gilmore’s claim.

[112] Mr. Gilmore argues that he will be substantially prejudiced by the considerable time that has passed since separation because he won’t be able to find significant evidence at this point.

[113] This is not, however, a case where nothing was said about equalization until more than six years after separation. In this case, the issue of equalization was explicitly discussed shortly after separation and put on hold by the parties until Mr. Gilmore obtained full-time employment. Mr. Gilmore knew that in 2002. He recounts in significant detail that Ms. Gilmore was “constantly” asking him for information about his employment prospects during the first year after separation. It is clear, therefore, that he was aware, at that time, while the parties’ agreement was fresh in his mind, that she had a very strong interest in his employment status, and, therefore, he could have, and should have, gathered, at that time, any evidence he might need later to address equalization. He is unable to show that the delay in commencing equalization proceedings caused him substantial prejudice given that any prejudice he may experience is the result of his own lack of diligence around the time of separation.

[114] Furthermore, Ms. Gilmore’s delay in bringing the Application for equalization was incurred in good faith. She reasonably believed that Mr. Gilmore would inform her when he obtained full-time employment and he never did. It is not necessary to determine whether she continually asked him whether he was employed full-time – the parties’ agreement in 2002 was a reasonable basis for her belief that he would inform her when he became employed full-time.

[115] For these reasons, Mr. Gilmore’s motion to dismiss Ms. Gilmore’s claim for equalization is dismissed.

Preservation of Assets

[116] Ms. Gilmore asks for an order preserving Mr. Gilmore’s assets for the purpose of securing equalization and child support.

[117] Mr. Gilmore argues that there is no need to freeze his LIRA accounts because they are locked in and he cannot access them. He submits that his non-LIRA accounts may be needed for legal fees for the current action. He suggests that there is no evidence that he has depleted or would deplete his assets in order to avoid payment.

[118] The court finds, however, that it is quite arguable on the evidence that Mr. Gilmore significantly underpaid child support from 2004 until 2013. It is also quite arguable that the degree of underpayment was so great that the Mr. Gilmore’s claim that he did not realize that he was underpaying child support is highly questionable. It is arguable that Mr. Gilmore must have known that the amount of child support he was paying, determined unilaterally by him, was insufficient to meet his obligation to his children who were living in a household supported by Ms. Gilmore whose earning capacity was much less than his (as he would have known after almost twenty years of marriage). There is also evidence that he actively misled Ms. Gilmore, by stating, in answer to her repeated questions, over many years, about his post-separation employment status, that he was working “here or there” and that the only reason he could afford to pay the amount of child support he was paying was the income of his new spouse. It could be argued that it does not matter whether he meant that his new spouse was making the payments from her own earnings or whether he meant that he could only afford to make the payments from his earnings because his new spouse was contributing to their household expenses, because, given his income, he, did not need anyone’s assistance to make the significantly low child support payments he was making. With this background in mind, it might well be argued that Mr. Gilmore’s evidence that he “forgot” the parties’ agreement in 2002, that they would deal with the financial issues arising from their separation when he obtained full-time employment, is not credible, and, further, that during the period of 2004 to 2012, Mr. Gilmore intentionally hid the amount of his income and the fact that he had obtained full-time employment from Ms. Gilmore in an effort to ensure that the financial issues arising from the separation, including equalization and child support, would not be properly addressed.

[119] In these circumstances, the court finds, on a balance of probabilities, that there is a strong risk that Mr. Gilmore will deplete his assets to avoid payment of equalization and/or retroactive child support.

[120] For that reason, Mr. Gilmore will be prohibited from depleting any of his RRSP accounts without further order of the court. If he needs any of those funds for legal fees, he may apply to the court, upon notice.

Pension Valuation

[121] Ms. Gilmore relies on a consent order dated September 17, 2013, wherein Mr. Gilmore was ordered to provide a further and better financial statement setting out his assets and debts at separation and “today” and to provide a disclosure brief in support of such a financial statement, setting out proof of his assets and debts as at separation and “today”.

[122] She argues that his pension from his employment since 2004 is one of his current assets and, therefore, a pension valuation is required by the terms of the order.

[123] Mr. Gilmore argues that a valuation of his post-separation pension is not relevant to equalization or payment of child support. He notes that he has complied with a term of the same order that required him to provide a copy of his pension booklet and pension statement. He submits that is sufficient within the context of this case.

[124] The court is not satisfied that a valuation of Mr. Gilmore’s post-separation pension would serve a useful purpose in the context of this case.

[125] Accordingly, Ms. Gilmore’s motion with respect to a pension valuation is dismissed.

Orders

[126] The court declares that Christopher Gilmore, Patrick Gilmore, and Heather Gilmore were children of the parties’ marriage within the meaning of the Divorce Act and the Child Support Guidelines on May 24, 2013 when the Application in this matter was issued.

[127] On a temporary basis, Mr. Gilmore shall pay Ms. Gilmore $750 per month for the support of Patrick Gilmore, pursuant to section 7 of the Child Support Guidelines, commencing August 1, 2014, until and including April 1, 2015, both dates inclusive.

[128] On a temporary basis, Mr. Gilmore shall pay Ms. Gilmore $750 per month for the support of Heather Gilmore, pursuant to section 7 of the Child Support Guidelines, commencing August 1, 2014, until and including April 1, 2015, both dates inclusive.

[129] On a temporary basis, Mr. Gilmore shall pay Ms. Gilmore $950 per month for the support of Heather Gilmore, pursuant to section 7 of the Child Support Guidelines, commencing May 1, 2015, until and including April 1, 2017, both dates inclusive.

[130] Mr. Gilmore’s motion to dismiss Ms. Gilmore’s claim for equalization is dismissed.

[131] On a temporary basis, Mr. Gilmore is restrained from transferring, selling, assigning, gifting, encumbering, or in any other way depleting any RRSP that he owns and/or is in his name, or under his control or direction, including, without limiting the generality of the foregoing, the RRSPs described as account numbers *923, *922, *722, and *866 in his Financial Statement dated May 9, 2014, or any funds that were in those accounts on that date and are now elsewhere, subject to further court order by way of a motion upon notice to Ms. Gilmore.

[132] Ms. Gilmore’s motion to require Mr. Gilmore to provide a pension valuation from his current employer is dismissed.

[133] A support deduction order shall issue.

Costs

[134] Either party may serve and file a brief written submission as to costs within 21 days of today’s date, the other party may serve and file a brief written response within 21 days thereafter, and the first party may serve and file a very brief written reply within 10 days thereafter.

Graham J.

Date: April 10, 2015

Gilmore v. Gilmore, 2015 ONSC 2331

Case Summary

Issues

Background regarding “Child of the Marriage”

Positions of the Parties regarding “Child of the Marriage”

Analysis regarding “Child of the Marriage”

On-going Support

Background regarding Equalization Limitation Period

Analysis regarding Equalization Limitation Period

Preservation of Assets

Pension Valuation

Orders

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues