SUPERIOR COURT OF JUSTICE
CITATION: Maka v. Maka, 2015 ONSC 3480
COURT FILE NO.: FS-11-72175-00
DATE: 2015-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chinyelu Ayinofu Maka
Edosa Adams-Idode, for the Applicant
Applicant
- and -
Peter Chucks Maka
Eyitayo Dada, for the Respondent
Respondent
HEARD: April 23, 2014
REASONS FOR JUDGMENT
Barnes, J.
OVERVIEW
[1] On September 21, 2010, Mrs. Maka commenced this litigation seeking only a divorce. In his Answer, Mr. Maka sought an order setting aside the separation agreement signed on May 25, 2001; the equalization and division of family property; the designation of the property located at 13 Dovergreen Drive, Brampton, Ontario as the matrimonial home; the partition and sale of 13 Dovergreen Drive; custody of the children; a cancellation or variation of child support arrears; spousal support; and fifty percent interest in the pension of Mrs. Maka.
[2] In her reply, Mrs. Maka sought an order affirming the separation agreement signed on May 25, 2001; a declaration that the separation date is May 25, 2001; child support; no variation or cancellation of child support arrears; sole custody of the children; a declaration that 13 Dovergreen Drive is not a matrimonial home and should not be sold; that Mr. Maka has no interest in 13 Dovergreen Drive; that Mr. Maka should pay his proportionate share of past and future s. 7 expenses; and that Mr. Maka is not entitled to spousal support or to a share in Mrs. Maka’s pension.
[3] I have previously given judgment in this matter with reasons to follow. These are my reasons and final judgment in this matter.
BACKGROUND FACTS
[4] Mr. Maka and Mrs. Maka were married in Nigeria on May 25, 1990. Mr. Maka sponsored Mrs. Maka to join him in Canada as a permanent resident.
[5] There are four children of the marriage, namely: Miriam 23, Jideofor 22, Amobi 20, and Tochi 17. At the time of the trial, Miriam and Jideofor were attending full time post-secondary education. Amobi and Tochi were in high school and living with Mrs. Maka.
[6] Mrs. Maka came to Canada to join Mr. Maka in August 1992. The couple and their daughter Miriam lived with Mr. Maka’s brother and sister-in-law in a house in Toronto. Mr. Maka and his brother had entered a rent-to-own agreement with the landlord.
[7] From October 1992 to sometime in 1996, the couple rented their own apartment at Kensington Place in Brampton. In 1996, Mrs. Maka and her sister purchased a house, located at 18 Aberlard Avenue in Brampton. Mrs. Maka’s sister lived at that address with the couple and their four children. Mrs. Maka’s sister subsequently transferred her interest in the Abelard home to Mrs. Maka and moved out of the house.
[8] In August 2000, the couple renewed their wedding vows and went on a honeymoon the same year. On May 25, 2001, Mr. Maka and Mrs. Maka signed a separation agreement, but they continued to live together in 18 Abelard Avenue.
[9] In 2003, 18 Aberlard was sold and 13 Dovergreen Avenue in Brampton was purchased in Mrs. Maka’s name alone. The couple lived in this home with their two children. Mrs. Maka’s brother eventually joined them. He rented the basement apartment.
[10] There was a domestic incident at the couple’s residence on two occasions - in August of 2010 and on December 23, 2010. Police intervention was required on each occasion to resolve the disputes. The August 2010 incident stemmed from Mrs. Maka’s decision to move Mr. Maka's belongings out of the shared master bedroom. The December 23, 2010, incident was the result of a dispute between Mr. Maka and Mrs. Maka over some car keys. The children took Mrs. Maka’s side during this dispute.
[11] Mr. Maka left the home on July 19, 2011, when Mrs. Maka was awarded interim exclusive possession of the home.
ISSUES
[12] The issues to be resolved are:
Should the Separation Agreement dated May 25, 2001, be set aside?
What is the date of separation?
Is 13 Dovergreen Drive, Brampton, Ontario the Matrimonial Home?
What should the equalisation payment be?
Should there be an Order for the Partition and Sale of 13 Dovergreen Drive, Brampton, Ontario?
What are Mr. Maka’s child support and s. 7 obligations going forward?
Should the interim child support order of Mr. Justice Dunn, dated July 19, 2001, be varied?
Should Mr. Maka’s child support arrears from August 1, 2011, to date be cancelled?
Should Mrs. Maka pay Mr. Maka spousal support?
POSITION OF THE PARTIES
[13] Mrs. Maka’s position is as follows: she and Mr. Maka decided to end their relationship on May 25, 2001, and signed a separation agreement to that effect; Mr. Maka lived as her tenant in 18 Abelard Avenue and 13 Dovergreen Drive in Brampton, Ontario; Mr. Maka has never contributed to the care of herself and the children; he has been verbally and physically abusive; he has never contributed to the purchase of 13 Dovergreen Drive; 13 Dovergreen Drive was never a matrimonial home; he has failed to pay child support or contribute to s. 7 expenses for the children; he is not entitled to spousal support; he has no interest in 13 Dovergreen Drive; and 13 Dovergreen Drive should not be sold.
[14] Despite her responsibilities as a mother, Mrs. Maka successfully obtained a degree in education and a designation as a Registered Practical Nurse. Mrs. Maka has purchased two homes in succession: 18 Abelard, which she sold, and then 13 Dovergreen Drive. Mrs. Maka testified that she did all of this without the support and contribution of Mr. Maka.
[15] Mr. Maka disputes this. He submits that he has worked hard as a taxi driver to support his family. Mr. Maka said that he contributed to and assumed significant childcare and other family responsibilities to enable Mrs. Maka to complete her education. Mr. Maka explained that due to medical problems, he is unable to work, he cannot pay child support, and he is entitled to spousal support and fifty percent of Mrs. Maka’s pension.
[16] Mr. Maka explained that the separation agreement was prepared for tax purposes. Mr. Maka testified to the following: he and Mrs. Maka did not separate until August 2, 2010; he has never been emotionally or physically abusive; he has never shown financial neglect to Mrs. Maka and their children; and he contributed to the down payment for the purchase of 18 Abelard and 13 Dovergreen and paid the monthly mortgage payments on both homes.
[17] Mr. Maka’s position is as follows: 13 Dovergreen Drive is the matrimonial home and he is entitled to an interest in that home. Mr. Maka seeks an equalization of net family property and an order that 13 Dovergreen be sold and the proceeds shared equally between him and Mrs. Maka. Mr. Maka also wants an equal share in any appreciation in the value of 13 Dovergreen Drive in Brampton.
DISCUSSION
[18] I have concluded that the following: the separation agreement shall be set aside; 13 Dovergreen Drive is the matrimonial home; Mrs. Maka shall make an equalisation of net family property payment to Mr. Maka and 13 Dovergreen Drive shall be sold, subject to the conditions I have outlined below.
[19] I have also concluded that the child support arrears shall be cancelled, and that Mr. Maka shall pay the table amount of child support and his proportionate share of s. 7 expenses going forward.
[20] Mr. Maka is on social assistance. He is 62 years old and retired. It is extremely unlikely that he will be able to make significant financial contributions in the form of child support or s. 7 expenses. I find that the evidence supporting Mr. Maka’s claim for spousal support on a compensatory basis is tenuous at best. Mr. Maka is entitled to spousal support on a non-compensatory basis – need arising from ill health and a resulting inability to work.
[21] Mrs. Maka has custody of four children of the marriage. Two of the children are adults enrolled in full time post-secondary education. The other two children, based on their chronological age, can be expected to be enrolled in post-secondary education in the not too distant future.
[22] Due to Mr. Maka’s financial circumstances, his child support and s. 7 expense contributions will be minimal if not non-existent; therefore, despite her higher income, Mrs. Maka’s share of the s. 7 expenses will constitute a significant financial burden for her.
[23] Under all these circumstances, I conclude a spousal support award in the table amount would, at this time, constitute an unacceptable financial burden for Mrs. Maka. Therefore, I order Mrs. Maka to pay spousal support that is less than the table amount.
[24] The parties consent to a divorce and for custody of the children to remain with Mrs. Maka.
Divorce
[25] Mr. Maka and Mrs. Maka shall be divorced.
[26] Mr. Maka says the date of separation is August 2, 2010. Mrs. Maka says it is May 25, 2001. Despite the variance in separation dates, both parties have lived separate and apart for more than one year with no prospect of reconciliation. The parties are granted a divorce on consent.
Custody
[27] On consent, Mrs. Maka shall retain custody of the children of the marriage. Therefore, Mrs. Maka shall have custody of the two younger children, Amobi Maka and Tochi Maka.
Should the separation agreement be set aside?
[28] I conclude that the separation agreement, signed May 25, 2001, may well have been prepared for tax purposes. In any event, the conduct of the parties after the separation agreement was signed shows that the parties did not adhere to the terms of their own separation agreement, and that they actually separated on August 2, 2010.
[29] On May 25, 2001, Mr. and Mrs. Maka signed a separation agreement. The separation agreement did not address the division and distribution of property. It purported to absolve Mr. Maka of all financial responsibility, presumably for child and spousal support obligations. The contents of the entire separation agreement are as follows:
This is a separation agreement between Peter Maka and Chineyelu Maka
We the undersigned have agreed to formally separate from our marriage due to irreconcilable differences.
We have therefore decided on the following with respect to our four children-Miriam, Jideofor, Amobi and Tochukwu;
I, Chineyelu Maka will be solely responsible for the children’s needs especially finances and shelter amongst others. I have agreed to absolve Peter Maka of any financial obligations due to his increasing medical problems and financial situation. [emphasis added]
I, Peter Maka will have unhindered access to the children whenever the need arises. Thereto, the key to the house will be made available to me.
I, Chineyelu Maka have agreed that Peter Maka will retain his spousal beneficiary status with regards to Pension, Insurance and Health Benefit as IN TRUST for the children until they turn 18 years old.
I, Peter Maka also agreed to retain Chinyelu Maka as my beneficiary for Pension until the children turn 18 years old.
[30] Both parties submit that this court must assess the validity of the separation agreement within the statutory framework set out in the Family Law Act. Section 56(4) of the Family Law Act is a codification of what constitutes an unconscionable agreement under the law of contracts: Scheel v. Henkelman, 2001 CanLII 24133 (ON CA), [2001] O.J. No. 55, 52 O.R. (3d) 1 (C.A.) at para. 15.
[31] Section 56(4) states:
A court may, on application, set aside a domestic contract or a provision in it,
a) If a party failed to disclose the other significant assets, or significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
b) If a party did not understand the nature or consequences of the domestic contract; or
c) Otherwise in accordance with the law of contract.
[32] In assessing whether a separation agreement should be set aside under s. 56(4) of the Family Law Act, the Ontario Court of Appeal in Virc v. Blair, 2014 ONCA 392 reiterates this two part test at para 52:
In LeVan at para. 51, this court held that s. 56(4) comprises a two-stage analysis:
(1) Can the party seeking to set aside the agreement demonstrate that one or more of the s. 56(4) circumstances is engaged?
(2) If so, is it appropriate for the court to exercise its discretion to set aside the agreement?
Are any of the circumstances set out in s. 56(4) engaged?
Position of the Parties
[33] Mr. Maka seeks to set aside the separation agreement. He alleges that Mrs. Maka failed to disclose assets, debts, or liabilities existing at the time the separation agreement was signed.
[34] Mr. Maka also says that the agreement was signed solely for income tax purposes and that Mrs. Maka misled him as to her true purpose for the agreement. He argues that he did not receive independent legal advice. Mr. Maka explained that he is less educated than Mrs. Maka and she misled him. Mr. Maka also denies that Mr. Sadique Omibodu, Mrs. Maka’s colleague at work, came to the couple’s home to witness the agreement. Mr. Maka said that Mrs. Maka took the agreement to work where Mr. Omibodu witnessed it.
[35] Mrs. Maka said that the agreement was signed after it became clear that the couple had irreconcilable differences after they had renewed their vows and had an unsuccessful honeymoon in August 2001.
[36] Mrs. Maka explained that the separation agreement was signed after the couple realised that the relationship was at an end. She said that Mr. Maka had been physically and mentally abusive to her and the children. Mrs. Maka said Mr. Maka was very unsupportive and unhelpful.
[37] According to Mrs. Maka, Mr. Omibodu witnessed the agreement at the 18 Abelard residence. Mr. Omibodu confirmed this in his testimony. Mrs. Maka said the agreement was signed in the couple’s living room and Mr. Omibodu said that the agreement was signed in the couple’s dining room. There is, however, no dispute that at some point Mr. and Mrs. Maka signed the agreement and that Mr. Omibodu signed as a witness to the agreement.
Analysis
Failure to disclose
[38] I do not accept Mr. Make’s argument that Mrs. Maka failed to disclose property, debts or liabilities to him. There were no significant property, debts, or liabilities that were hidden from Mr. Maka. In fact, the agreement did not deal with property issues at all.
Independent Legal Advice
[39] Neither party received independent legal advice. Mrs. Maka said that she and Mr. Maka worked together on the contents of the separation agreement. Mr. Maka said Mrs. Maka prepared it and she signed it. Mr. Maka said he understood the contents of the separation agreement but he was misled as to the purpose of the agreement. Therefore, despite the absence of independent legal advice and the disparities in the level of education between them, I am satisfied that Mr. Maka was fully aware of what he was signing. The vexing question that remains is whether he was misled on the real intent of the agreement. To resolve this, I examine the conduct of the parties prior to and after the agreement was signed.
Nature of family interactions and general family life
[40] Mrs. Maka has made significant strides with her professional life despite her significant childcare responsibilities. Mrs. Maka explained that she adjusted her schedule to part time and worked three jobs to support the children. Mr. Maka said this was possible because of his help. Mrs. Maka disagreed. She said it was her sister and brother who helped her with the children and made this possible.
[41] Mr. Maka testified that he helped the children with homework and extracurricular activities. He said he worked at night and Mrs. Maka worked during the day, so he was available to help. Mrs. Maka agreed that Mr. Maka would drop off and pick up the children from various extracurricular activities.
[42] Mrs. Maka spoke about one occasion when Mr. Maka got angry because one of the children called Mrs. Maka at work for assistance with homework. There is nothing wrong with a child seeking the assistance of either parent with homework. Ironically, irrespective of one’s view of Mr. Maka’s reaction, it does not describe a father who is not involved in the children’s day-to-day activities. On the contrary, it describes a father who wants the child to come to him for homework help instead of going to the mother for help.
[43] I make this observation in the context and recognition of the fact that Mrs. Maka was very much involved in the lives of her children.
[44] After signing the separation agreement, the parties attended various joint community social events. Mrs. Maka explained that this was necessary because she would face community stigmatisation if they were perceived to be a separated couple. A picture of the entire family unit was submitted as a representation of the family to a prominent community group. Mrs. Maka said she did not submit the picture.
[45] In 2006, the couple and their children went on a family trip to Nigeria. In 2008, they went on a Disney Tour as a family. In March of 2010, they went on a boat cruise as a family.
[46] Mrs. Maka said that Mr. Maka was more aloof on these trips and she and Mr. Maka did not sleep in the same room on these trips. She explained that Mr. Maka tended to wander off and do his own thing. Mrs. Maka also testified that the children insisted that Mr. Maka come on the cruise and Disney trips.
[47] Mr. Maka disputes this. He said that all these trips were taken as family trips and they were cordial family trips. Pictures were filed showing the family posing for family pictures together on one of these trips.
ii. Financial Arrangements
[48] During the marriage, the couple had no joint accounts; however, Mrs. Maka put a $10,000 down payment on a luxury car - a Lexus - and let Mr. Maka drive it as long as he made monthly loan and insurance payments.
[49] It is clear that Mrs. Maka has the higher income earning power. She worked long hours and bore a larger proportion of the financial expenses for the family.
[50] Mrs. Maka purchased 18 Abelard with her sister. Mrs. Maka’s sister subsequently transferred her title to Mrs. Maka. The separation agreement was signed at 18 Abelard. Mr. Maka said he was paying the mortgage at 18 Abelard. Mrs. Maka said he was not.
[51] Mrs. Maka acknowledged that Mr. Maka paid her $1,400 a month. This amount coincidentally equals the monthly mortgage payable for 18 Abelard. The mortgage payment for this home was $686 semimonthly, being $1,372 per month – a figure just under $1,400.
[52] Mrs. Maka purchased the 13 Dovergreen residence in her name alone. Mrs. Maka put down an initial down payment of $20,000. Mrs. Maka used $86,050.81 from the sale of 18 Abelard to purchase 13 Dovergreen. 13 Dovergreen was purchased only in Mrs. Maka’s name.
[53] Mr. Maka testified that a TD account was opened in the name of Mrs. Maka for the purpose of paying the mortgage on 13 Dovergreen. Mr. Maka deposited $1,600 monthly into that account. He said it was for the mortgage.
[54] When Mr. Maka moved into 13 Dovergreen he signed a lease. In the lease he agreed to pay $350 per month to Mrs. Maka as rent. Mrs. Maka explained that the $1,600 paid per month was to include the $350 rent, and the balance was to go toward the up-keep of the children.
[55] The separation agreement purported to absolve Mr. Maka of all financial obligations to the children, and yet on Mrs. Maka’s own evidence, a portion of Mr. Maka’s monthly payments was going towards the upkeep of the children. This was in clear contravention of the said agreement. This is an indication that the couple never really intended to abide by the terms of the separation agreement.
[56] A mortgage statement for 13 Dovergreen Drive was filed as Exhibit 31. This document shows that in 2003 the monthly mortgage payments included property tax payments. This total amount was $1,958. In 2008, there was a change. This time the mortgage payments included principle and interest only. The amount was $790 biweekly - i.e., $1,580 monthly. This amount is coincidentally just under Mr. Maka’s monthly contributions of $1,600. For the first five years (2003-2008) Mr. Maka was paying $1,600 monthly when the mortgage was $1,958 per month. I find that at the very minimum, Mr. Maka was making significant contributions to the mortgage payments.
Sleeping arrangements
[57] Within this context, I consider the sleeping arrangements after the separation agreement was signed. Mr. Maka and Mrs. Maka shared the same bedroom, both at Abelard and Dovergreen.
[58] Mrs. Maka explained that she worked during the day and Mr. Maka worked during the night. Mrs. Maka said that they never shared the same bed and had no sexual relations. Mr. Maka said they did share the same bed and had sexual relations.
[59] Then there is the sheer number of years this arrangement persisted: the couple shared the same bedroom for a period of almost ten years after the separation agreement was signed in May 2001.
[60] The nature and duration of the sleeping arrangements alone is not determinative, but when considered with the couple’s financial arrangements and family interactions, as previously described, the claim that the couple intended the May 2001, agreement to signify that they were truly living separate and apart begins to unravel.
Description of Relationship to the Police
[61] On August 10, 2010, police were called to 13 Dovergreen as a result of a domestic incident. The police occurrence report states that both parties advised the police that they had been separated for nine years. Mrs. Maka submits that this piece of evidence is admissible under s. 35 of the Canada Evidence Act. It is my opinion that this evidence is hearsay and not admissible under s. 35 of the Canada Evidence Act. However, even if this evidence were admissible, I would accord it very little weight.
[62] Mrs. Maka said that her interaction with the police was short because she found that they were not willing to listen to her version of what had transpired.
[63] Neither Mr. Maka nor Mrs. Maka confirmed that they told the police that they had been separated for nine years. Authors of the police occurrence report did not testify and, therefore, this evidence is given little weight by the court.
[64] The cumulative effect of all the evidence leads me to conclude that the parties did not respect the contents of their own separation agreement. Under those circumstances, it was very reasonable for Mr. Maka to conclude that the separation agreement was signed only for income tax purposes.
[65] The conduct of the couple after the agreement was signed was inconsistent with an intent to separate. I am satisfied that Mr. Maka was misled on the true intent of the separation agreement. This is the type of circumstance described under s. 56(4)(b) of the Family Law Act and, therefore, the separation agreement is set aside.
[66] I have also considered whether the separation agreement should be set aside under the provisions of the Divorce Act. For the same reasons articulated under the Family Law Act analysis, I have reached the same conclusion.
[67] The parties were married and Mr. Maka’s spousal support claims are brought under the Divorce Act. Section 15.2 of the Divorce Act sets out the legislative framework for spousal support orders under the Divorce Act. Section 15.2 (4) states:
In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
a) the length time of the spouses cohabited;
b) the functions performed by each spouse during cohabitation; an
c) any order, agreement or arrangement relating to the support of either spouse. [emphasis added].
[68] The separation agreement purports to absolve Mr. Maka “of any financial obligations due to his increasing medical problems and financial situation”. In effect, the agreement seeks to absolve Mr. Maka of any child support and spousal support obligations. Section 15.2(4)(c) of the Divorce Act captures separation agreements relating to the support of either spouse.
[69] The Supreme Court decision in Miglin v. Miglin, 2003 SCC 24 set out a two-step process for considering whether to set aside a separation agreement. This process is aptly summarised by Croll J. in Murray v. Murray, 2003 CanLII 64299 (ON SC), [2003] O.J. No. 3350, 66 O.R (3d) 540 at para 16 as follows:
The first stage involves an examination of the circumstances at the time the agreement was entered into, and this examination has two steps. The first step requires a review of the agreement in light of the circumstances that existed at the time of negotiation and execution of the document. The second step in stage one requires a review of the contents of the agreement to see whether, at the date the agreement was entered into, there was substantial compliance with the overall objectives of the Divorce Act. The second step of the Miglin analysis involves an examination of the circumstances at the time of the application for support.
[70] The first consideration under the Miglin test is an assessment of the circumstances at the time the agreement was signed. For reasons already articulated, such an assessment reveals that Mr. Maka was not a vulnerable signatory to the agreement: he understood and participated in the creation of its contents.
[71] In addition, I have concluded that Mr. Maka was misled as to the true purpose of the agreement. His belief was that it was for tax purposes. Mrs. Maka has said it was to signify an actual separation.
[72] The next consideration under the Miglin test is whether the contents of the agreement are in substantial compliance with the objectives of the Divorce Act. The spousal support objectives are set out in s. 15(6) of the Divorce Act:
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[73] The agreement purported to absolve Mr. Maka of all financial obligations, which included child support. This runs afoul of s. 15(6) (b) of the Divorce Act. Therefore, the clause that seeks to absolve Mr. Maka of his child support obligations ought to be set aside.
[74] The second stage of the Miglin test requires an assessment of the circumstances at the time of the application for support. At the time of the application for support the agreement reflected the couple’s original intentions, however, their intentions were divergent and therefore the separation agreement is set aside.
What is the date of separation?
[75] Mrs. Maka says the date of separation is the date the separation agreement was signed, being May 25, 2001. I have set aside the separation agreement and concluded that the date of separation is August 2, 2010. This is the day Mrs. Maka moved Mr. Maka’s clothes out of the master bedroom. This action sparked a domestic incident which resulted in the intervention of the police.
Is 13 Dovergreen Drive a Matrimonial Home?
[76] Subsection 18(1) of the Family Law Act describes how a property may be designated as a matrimonial home:
Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
[77] On the date of separation, August 2, 2010, the couple lived at 13 Dovergreen Drive in Brampton. This residence is designated as the matrimonial home.
Nature of Interest in the Matrimonial Home
[78] The first issue I must determine is the nature of Mr. Maka’s interest in the matrimonial home. Section 10 of the Family Law Act provides a statutory framework to resolve the question of title:
- (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
(a) declare the ownership or right to possession;
(b) if the property has been disposed of, order payment in compensation for the interest of either party;
(c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and
(d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order,
and may make ancillary orders or give ancillary directions. R.S.O. 1990, c. F.3, s. 10 (1).
[79] Mr. Maka is the non-titled spouse. He therefore does not have a proprietary interest in the matrimonial home. However, statutorily, he is entitled to a one half share of the net family property, which includes the matrimonial home.
[80] The Supreme Court of Canada in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4(S.C.C) [Rawluk] at para 44 provides this guidance:
The distinction between a share in ownership and a share in property value through an equalizing transfer of money is more than an exercise in judicial formalism. This distinction not only follows the two-step structure of the Family Law Act, 1986 but reflects conceptual and practical differences between ownership and equalization. Ownership encompasses far more than a mere share in the value of property. It includes additional legal rights, elements of control and increased legal responsibilities. In addition, it may well provide psychological benefits derived from pride of ownership. Where the property at issue is one to which only one spouse has contributed, it is appropriate that the other spouse receive only an equalizing transfer of money. But where both spouses have contributed to the acquisition or maintenance of the property, the spouse who does not hold legal title should be able to claim an interest in that property by way of a constructive trust and realize the benefits that ownership may provide. The imposition of a constructive trust recognizes that the titled spouse is holding property that has been acquired, at least in part, through the money or effort of another. The non-titled spouse's constructive trust interest in this property is distinct from the right to an equalizing share of property value that is derived not from an independent property right but from the status as a married person. [emphasis added]
[81] Therefore the court in Rawluk states that s. 10 of the Family Law Act does not prohibit the availability of remedial trust remedies to spouses. In Martin v. Sansome, 2014 ONCA 14 (Can LII ) [Martin] at para 47 ACJO Hoy, writing for the majority, explains:
In Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, Cory J., writing for the majority of the Supreme Court, relied on s. 10(1) of the Family Law Act, 1986 (which is identical to s. 10(1) of the current Act) to confirm that the statutory scheme for the equalization of spouses’ property on marriage breakdown does not completely supersede the remedial constructive trust. Before property can be equalized under the Family Law Act, a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled.
[82] Section 10 of the Family Law Act does not preclude the application of constructive trust remedies to spouses (Rawluk at para. 44 and Martin at para. 47). A non-titled spouse who has made contributions to the acquisition or maintenance of the property may be able to claim a constructive trust in the property (Rawluk at para.44).
[83] The constructive trust arises when an unjust enrichment has been established (Rawluk at para. 42). The principles in Kerr v. Barrow, 2011 SCC 10, [2011] 1 S.C.R. 269 [Kerr] must be applied to determine if there has been an unjust enrichment with no juristic reason for the enrichment (see Martin at paras. 48 – 52), Questions of title must be resolved before embarking in the equalisation of net family property exercise (Martin at para. 47).
[84] It is important to recognize, however, that the equalisation process is meant to provide a remedy for an unjust enrichment, as per s. 5(7) of the Family Law Act (Martin at paras. 63-66). Accordingly, the adequacy of an equalisation payment as a remedy to the unjust enrichment must be explored first (Martin at para.66). It is only in rare circumstances that an equalisation payment will be an insufficient remedy warranting the declaration of a proprietary interest and sale of the property (Martin paras. 63 – 66).
[85] The principles for assessing whether there has been an unjust enrichment are described in Kerr at para 100 by Cromwell J.:
The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.
Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.
[86] At para 52 of Martin, ACJO Hoy writes:
……..the framework established in Kerr requires the court to ask the following questions:
Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?
if so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?
If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?
If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?
Position of the Parties:
[87] Mr. Maka says he has an interest in the matrimonial home and seeks an order for the sale of the matrimonial home. Mr. Maka’s argument is that his interest in the matrimonial home entitles him to the property value as of the valuation date, as well as any appreciation in the matrimonial home since the valuation date.
[88] Mrs. Maka is opposed to this. She argues the following: she is the only one with title to the property; it is not the matrimonial home; and Mr. Maka has made no contributions to the purchase or maintenance of the home, and, therefore, he has no interest in it.
Analysis
[89] Mr. Maka did not seek the sale of the matrimonial home on the basis of a Rawluk, Kerr analysis, the issue of unjust enrichment was not raised by either party and therefore I will not address it.
[90] In any event, even if there was an unjust enrichment and a corresponding deprivation in the absence of a juristic reason for the enrichment, I am satisfied that it can be remedied by an equalisation payment. See Martin at paras. 63-66
What should the equalization payment be?
[91] The statutory framework for equalization of net family property is set out in s. 4 and s. 5 of the Family Law Act.
[92] Under the statutory framework, these steps must be followed:
(1) Determine the net family property of each spouse by doing the following:
a) Determine the total value of all the assets each spouse owned on the valuation date.
b) Determine the total value of all the debts and liabilities each spouse had on the valuation date.
c) Determine the total net value of property that each spouse owned at the date of marriage by subtracting each spouse’s total debts and liabilities on the date of marriage from his/her total assets owned on the date of marriage - except any debts and liabilities related to the acquisition or improvement of the matrimonial home.
d) Determine any applicable deductions and exemptions under s.4 of the Family Law Act.
The net family property of each spouse is determined by taking the figure in (a) and subtracting from it the amounts in (b), (c), and (d).
(2) Determine if one spouse’s net family property is less than the other. If there is a difference in net family properties, s. 5(1) provides that the difference between the two shall be equalized by transferring half of the difference to the spouse with the lower net family property, subject to step 3.
(3) The court must consider whether, given the considerations listed in s. 5(6), it would be unconscionable to equalize the net family properties. If there are no grounds for an unequal division of net family property under s.5(6), the payments shall be made as described in step 2:
Berdette v. Berdette (1991), 3. O.R. 3d 513, 1991 CanLII 7061 (ON CA), [1991] O.J. No. 788 (Ont. C.A.).
Position of the Parties
[93] Mrs. Maka’s position is that Mr. Maka’s claims for equalization should be dismissed. Mrs. Maka submits that in the event this court decides to proceed with an equalisation of net family property calculation, Mr. Maka should receive an amount less than half the difference between the net family properties of the couple.
[94] Mrs. Maka’s primary position was that Mr. Maka’s claims for an equalisation of net family property payment should be dismissed. Mrs. Maka did not challenge the figures in the equalization of the net family property statement, filed as exhibit 56, by Mr. Maka. Those figures include the value of Mrs. Maka’s pension, which is apportioned equally between Mr. Maka and Mrs. Maka in exhibit 56. Except where indicated otherwise, I have accepted the numerical values of assets, debts, and liabilities described in exhibit 56. The following is a review of those assets, debts, and liabilities described in exhibit 56. As mentioned already, I have also accepted the valuation date suggested by Mr. Maka of August 2, 2010.
Analysis
[95] For the purposes of this case, the valuation date is the date when the parties separated with no reasonable prospect of reconciliation: s. 4 of the Family Law Act. This date is August 2, 2010.
i. Assets as of Valuation Date
[96] The value of 13 Dovergreen Drive is agreed to be $600,000.This value was submitted by Mr. Maka as the valuation date value of the matrimonial home for the purpose of the calculation of the equalisation payment. No objection was raised by Mrs. Maka. Therefore, I will accept this figure as the valuation date value of the matrimonial home.
[97] This figure is divided equally between the spouses as follows:
(a) Mr. Maka: $300,000
(b) Mrs. Maka: $300,000
[98] Value of General Household Items and Vehicles on valuation date:
(a) Mr. Maka: $ 0
(b) Mrs. Maka: $39,980
[99] Value of Bank Accounts and Savings, Securities, and Pensions on valuation date:
(a) Mr. Maka: $47,822.13
(b) Mrs. Maka: $54,558.13
[100] Value of Life and Disability Insurance on the valuation date:
(a) Mr. Maka: $0
(b) Mrs. Maka: $13,000
[101] Value of business interests on valuation date: The basement apartment at 13 Dovergreen was rented by Mrs. Maka’s brother. The total rental monies received from the basement apartment from August 2, 2010, to December 2013 is $30,750. Mr. Maka has divided this figure equally between Mrs. Maka and Mr. Maka. This figure is better described as business income and not as an asset. Therefore, I will exclude these figures from the calculations.
(a) Mr. Maka: $0
(b) Mrs. Maka: $0
[102] There was no money owed to the parties or any other property owned by any of the parties as of the valuation date.
[103] The sum of the total assets owned on the valuation date is as follows:
(a) Mr. Maka: $347,822.13
(b) Mrs. Maka: $407,538.13
ii. Debts and Liabilities as of Valuation Date
[104] The mortgage balance as of August 2, 2010, is $346,390. Mrs. Maka is the titled spouse. In exhibit 52, this debt is apportioned equally between Mrs. Maka and Mr. Maka at $173,195 each, and included in the total debts and liabilities calculation.
[105] The Value of Debts and Liabilities of the parties on valuation date is:
(a) Mr. Maka: $224,681.87
(b) Mrs. Maka: $182,163.48 (My calculations yielded a different figure than the $187,168.27 listed in exhibit 52)
iii. Net value of assets as of date of marriage and s.4(2) exclusions
(a) The Net value of property owned on the date of the marriage.
(b) Mr. Maka: $1,500
(c) Mrs. Maka: $0
[106] The total value of excluded property under s. 4(2) of the Family Law Act:
(a) Mr. Maka $0
(b) Mrs. Maka $0
[107] The sum of the total value of debts and liabilities on the valuation date, the value of property owned on the date of marriage, and the total value of the excluded property is as follows:
(a) Mr. Maka: $226,181.87
(b) Mrs. Maka: $182,163.48
[108] The Net family property:
(a) Mr. Maka: $347,822.13 - $226,181.87 = $121,640.26
(b) Mrs. Maka: $407,538.13 - $182,163.48 = $225,374.65
(c) Difference in net family property: $225,374.65 - $121,640.26 = $103,734.39 (with the changes previously described, this figure is different from the $98,729.60 listed in exhibit 52).
[109] As per s. 5(1) of the Family Law Act, and subject to s.5(6) of the Family Law Act, Mrs. Maka is required to pay Mr. Maka half of this difference in equalization i.e. $103,734.39 / 2 = $51,867.20.
Unequal Division of Net Family Property
[110] Section 5(6) Family Law Act authorises a court to make an order for payment of an equalization amount that is less than half of the difference between the net family properties of the spouses if the criteria set out is s. 5(6) are met.
Position of the parties
[111] Mrs. Maka’s request for an unequal equalisation payment is based on the following: Mrs. Maka made a $20,000 contribution to the down payment for the purchase of 13 Dovergreen Drive; she has assumed a disproportionate share of the day to day family expenses; she has made the mortgage, property taxes, utility, and insurance payments for 13 Dovergreen Drive (the matrimonial home); and Mrs. Maka continues to bear the financial responsibility for four children’s ongoing expenses and post-secondary education without any contributions from Mr. Maka.
[112] Mrs. Maka’s argument for unequal division relies on s. 5(6)(f) of the Family Law Act, which allows for unequal division where equalization would otherwise be unconscionable, having regard to “the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family. Her argument also relies on s. 5(6) (h) of the Family Law Act, which allows for unequal division having regard to “any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.”
[113] The $20,000 down payment was Mrs. Maka’s contribution to the purchase of the 13 Dovergreen Drive. $86,050.81 from the equity from 18 Abelard Avenue was part of the down payment for the purchase of 13 Dovergreen Drive. Mr. Maka made the mortgage payments on the 18 Abelard Avenue property and on 13 Dovergreen Drive.
[114] The couple lived in 13 Dovergreen Drive for almost 13 years. Mr. Maka left the matrimonial home in July 2011. Since that date, Mrs. Maka has made monthly mortgage payments of $1,866. The total amount paid from August 1, 2011, to May 1, 2015, is $87,702. These payments helped preserve and maintain the matrimonial home.
[115] It is reasonable to expect that if Mrs. Maka had failed to make the mortgage payments, the mortgage would have gone into default. The mortgage lender could presumably take legal action to obtain possession and sale of the property.
[116] Mrs. Maka is the titled spouse. Therefore, the mortgage debt is her debt alone, and she is not entitled to receive any credit for any payments she made since the valuation date. Therefore, Mrs. Maka will pay Mr. Maka an equalisation payment of $51,867.20.
[117] Section 9(1) of the Family Law Act provides the means by which an equalization payment may be satisfied. In this case, alternatively, a charge can be placed on the home to satisfy that the payment if necessary. All of these options short of sale will create the least amount of disruption in the life of Mrs. Maka and the children. However, if Mrs. Maka cannot make the equalisation payment outside of a sale then the matrimonial home shall be listed for sale by July 30, 2015.
[118] Mr. Maka does not live in the matrimonial home. Mrs. Maka lives in the home with the couple’s four children. A sale of the home will certainly be disruptive to that family life; however, it is open to Mrs. Maka to use her share of the proceeds from the sale to purchase another home for her and the children. Should the sale of the home be necessary, Mrs. Maka shall be responsible for all aspects of listing 13 Dovergreen Avenue in Brampton for sale. Any requirement for Mr. Maka’s signature and consent, for the purpose of sale, is dispensed with.
Variation of Child Support Arrears
[119] Mr. Justice Dunn ordered Mr. Maka to pay spousal support on an interim basis retroactive to August 1, 2011. The amount to be paid was $766 per month, commencing August 1, 2011. In my view, since this was an interim order it is open for the trial judge to review the matter afresh with a view to making a final order. In any event, I will proceed to conduct my analysis within the context of the arguments as framed by the parties.
[120] Mr. Maka seeks an order from this court for a rescission or variation of this child support order. I have concluded that there has been a material change in Mr. Maka’s income since the interim child support order was made, and, therefore, the child support payments as ordered by Dunn J. should be varied retroactive to October 1, 2011.
[121] Subsection 15(2) of the Divorce Act permits a court to “make an interim order requiring a spouse to pay the support of any or all children of the marriage, pending the determination of the application under subsection (1). Subsection17 (1)(a) of the Divorce Act permits the variation, recession, or suspension of a child support order. Subsection 17(4) of the Divorce Act requires a court to be satisfied that there has been a “change in circumstances” since the date the child support order was made or last varied. Section 17 makes no reference to the court’s authority to vary interim orders. The power to vary under s. 17 of the Divorce Act is limited to final orders. The section does not contemplate the variation of interim orders. See Brooks v. Brooks 7142(ONCA); Thom v. Thom [2014] O.J. No. 2115; Innocente v. Innocente, 2014 ONSC 7082 (Can LII) [Innocente].
[122] A material “change in circumstances” is required for a variation of a final order. A material change in circumstances means a change that would likely have resulted in a different order if the new circumstances had been in existence at the time the order was made: see Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94 at para 22. The same considerations apply in considering whether an interim order should be varied: See Innocente at para 56.
[123] Mr. Maka said that since the interim child support order was made, his health has deteriorated. He said he has been unable to work since July 2011, when he was asked to leave the house he had occupied with the family for several years.
[124] Mr. Maka said that his ill health has left him destitute. He has suffered emotional trauma that has sent him into depression. He is unable to do any meaningful work. He is unable to return to work due to a frozen shoulder condition, which required surgery in 2012.
[125] Mr. Maka said he has relied on Ontario Works Benefits to survive. He has been living on those benefits since September 30, 2011. He said that his material change in circumstances has resulted in severe hardship. He is unable to pay any child support arrears. Mr. Maka testified that he has had to borrow money to help pay various cost awards against him during the course of this litigation.
[126] Mrs. Maka submits that Mr. Maka’s claim of deteriorating medical condition and economic hardship occurred as soon as he was ordered to pay child support on July 19, 2011. Mrs. Maka said that Mr. Maka has not made any voluntary child support payments.
[127] Mr. Maka’s medical condition is nothing new. In May 2001, when the separation agreement was signed, there was a specific provision in place which sought to absolve Mr. Maka of any financial responsibilities due to his medical condition. These medical issues have been in play since at least 2001. It is reasonable to expect that Mr. Maka’s medical condition affected his earning power post 2001 and was reflected in his income at the time the order was made.
[128] I briefly note that Mrs. Maka referred to a trial record where Bielby J. made reference to a Doctor’s report that indicated that Mr. Maka’s condition was expected to improve. That trial record or Doctor’s report was not filed as an exhibit in this case and therefore not properly before the court. I do not consider it in coming to my determination.
[129] At the current time, Mr. Maka’s medical condition has resulted in his inability to maintain employment and a corresponding reduction in his income. There has been a material change in Mr. Maka’s income since September 30, 2011 – when he began to receive Ontario Works Benefits - to warrant a variation in monthly child support commencing October 1, 2011.
[130] Based on the original order, the total arrears from August 1, 2011, to November 1, 2013, is $21,448. This amount shall be varied as described below under “child support payments”.
Child Support
[131] The financial information filed by Mr. Maka covers the period 2009 to 2013. Mrs. Maka asks the court to impute income to Mr. Maka because the financial documentation he filed shows that Mr. Maka paid about $19,200 ($1,600 x 12) for rent each year and approximately $5,270.76 for his car and insurance. She also claims that there are disparities in Mr. Maka’s income and expenditures and inconsistencies in his tax returns.
[132] Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 sets out the circumstances under which a court may impute income:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the parent or spouse is intentionally under- employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse.
[133] Factors to consider when applying s. 19(1)(a) of the Guidelines are articulated by Gilllese JA in Drygala v. Pauli, 2002 Can LII 41868 (Ont. C.A.) at para 23 as follows:
- Is the spouse intentionally under-employed or unemployed?
(a) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
(b)If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[134] A contextual approach should be adopted in assessing whether a spouse is intentionally under-employed or unemployed. A finding of bad faith is not necessary for a finding of intentional under-employment or unemployment: Dryyala, paras. 24 – 29.
[135] Gillese JA in Drygala explains at paras 28 and 29:
Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less [page719] than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.
I note that there is no requirement of bad faith in the provision itself, nor is there language suggestive of such a requirement.
[136] Mr. Maka is self-employed, and, as Mrs. Maka has conceded, nothing short of a forensic investigation will be required to determine if he has been under-reporting his income over the years. Mr. Maka testified that he suffers from depression, diabetes, sleep apnea, and a frozen shoulder. He testified that his depression had worsened since his separation and he has had surgery to help address his frozen shoulder problem.
[137] It is not in dispute that Mr. Maka has suffered from ill health for many years. This fact was acknowledged in the separation agreement signed on May 25, 2001. I have considered the financial discrepancies described by Mrs. Maka and considered the fact that Mr. Maka began receiving Ontario Work Benefits shortly after Justice Dunn ordered him to pay retroactive child support; however, on the record before me there is no basis for me to conclude that Mr. Maka is intentionally under-employed or unemployed.
[138] The evidentiary record supports a finding that Mr. Maka is unable to work at the current time for medical reasons.
Child support payments: retroactive and ongoing
[139] Two of the couples’ four children are adults. All children currently live with Mrs. Maka. The two adults are enrolled in post-secondary education. Mr. Maka began receiving Ontario Works Benefits on September 30, 2011. Based on these benefits, Mr. Maka’s income has been $15,169 per year since September 2011. Mrs. Maka’s income for 2011 is $89,866. The table child support amount, payable by Mr. Maka, is $238 per month.
[140] Mr. Maka is still receiving Ontario Works Benefits and, therefore, his income from 2012 to 2015 is $15,169. Divorce mate calculations indicate that the table amount of child support payable by Mr. Maka is $238 per month. This amount is payable retroactive to October 1, 2011, and onwards.
[141] The child support arrears payable by Mr. Maka shall be adjusted accordingly. Mr. Maka was required to leave the matrimonial home, as a result of the interim exclusive possession order, in July 2011. His child support obligations therefore commenced in August 2011.
[142] As per the order of Dunn J., Mr. Maka’s child support arrears from August 2011 to September 2011, are $766 per month, for a total of $1,532. Based on the variations described above, the child support arrears for the period October 2011 to April 2015 are to be calculated at a rate of $238 per month, leaving a total of amount of arrears of $10,234 for this period.
[143] The total child support arrears from August, 2011 to April 2015 is $1,532 + $10,234 = $11,766.
Should the Child Support Arrears be Cancelled?
[144] In determining whether the support arrears should be cancelled, I will consider the factors enumerated in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 [D.B.S.] at paras 99 to 102, where the Supreme Court set out the factors to consider in determining whether to make a retroactive child support order.
[145] These factors are: was the application for retroactive child support brought in a timely fashion? Did the conduct of the payor contribute to any delay in bringing the application? What are the current circumstances of the children? What hardships will the payor face if the order is made?
[146] Mrs. Maka promptly brought this application for retroactive child support. Prior to the commencement of this trial, there was already an interim order for retroactive child support in place. The four children reside with Mrs. Maka. One of the children is in elementary school, another in high school, and two are adults in post-secondary education. The two adult children contribute to these expenses with income from summer jobs. Mrs. Maka bears the brunt of the childcare expenses. Any assistance from Mr. Maka will be in the children’s best interest. However, Mr. Maka is on social assistance and does not have the means to pay the arrears from his current resources and therefore Mr. Maka’s child support arrears are cancelled.
Section 7 Expenses
[147] Mrs. Maka is seeking an order that Mr. Maka pay his proportionate share of s. 7 expenses. Mr. Maka opposes Mrs. Maka’s claim on the basis that Mrs. Maka did not provide receipts and the expenses are not s. 7 expenses. I am satisfied that some of the expenses Mrs. Maka seeks to claim are the type of expenses described in s. 7 of the Federal Child Support Guidelines. However, I have concluded that Mrs. Maka’s claim for s. 7 expenses shall be denied because: they were unreasonably delayed; Mrs. Maka did not include this request in her pleadings; and, in practical terms, Mr. Maka does not have the financial resources to pay any retroactive s. 7 expenses. It will cause him significant hardship.
Position of the Parties
[148] Mrs. Maka was not seriously challenged in cross-examination on whether the expenses were appropriate, whether the expenses were incurred, and on the accuracy of the amounts claimed. Mr. Maka argues the following: Mrs. Maka’s s. 7 request should not be entertained because she did not include this in her pleadings; Mrs. Maka did not produce receipts for the expenses she wishes to claim; and many of the expenses are not properly characterised as s. 7 expenses. Mr. Maka suggested that if this court were to conclude that the expenses could properly be classified as s. 7 expenses, then he should be permitted to pay his proportionate share from his share of the proceeds from the sale of the matrimonial home.
Analysis
[149] Section 7(1) of the Federal Support Guidelines describes eligible expenses as follows:
Special or extraordinary expenses
- (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paras (1) (d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
i. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
ii. the nature and number of the educational programs and extracurricular activities,
iii. any special needs and talents of the child or children,
iv. the overall cost of the programs and activities, and
v. any other similar factor that the court considers relevant.
[150] Section 7 expenses must be “necessary and…. be within the realm of fiscal responsibility”: See Kramer v. Kramer, 2014 ONSC 5952 (Can LII) [Kramer] at para 86. Special expenses as described in subsection 7(1) must be necessary and reasonable: See McLaughlin v. McLaughlin, 1998 CanLII 5558 (BCCA) [McLaughlin].
[151] Mrs. Maka’s s. 7 expense requests are described below.
[152] Miriam Maka – Student at Seneca College: Mrs. Maka explained that Miriam Maka is a student at Seneca College. Mrs. Maka is claiming Miriam’s education related expenses from 2009 to 2013. Mrs. Maka described these expenses as school deferral fees, tuition fees, cost of cell phone, transportation costs, driving lessons, piano lessons, meals, and tuition.
[153] Mrs. Maka testified that Miriam earned $710 in the summers of 2009 and 2010, $1,300 in 2001, $3,000 in 2012 and $3,000 in 2013. Mrs. Maka submits that, allowing for financial contributions by Miriam and other applicable deductions, the s. 7 expenses claimed are as follows: 2009 – $4,867; 2010 – $4,134; 2011 – $867.01; 2012 – $12,923; 2013 – $8732.29. The total amount s. 7 expenses claimed for Miriam is $31,523.30.
[154] Jideofor Maka – Student at the University of Toronto from 2011: Mrs. Maka is claiming s. 7 expenses for orthodontics, swimming, and tuition fees. Mrs. Maka testified that Jideofor did not work in 2009 and 2010. In 2011, he earned $3,200; in 2012, he earned approximately $1600; and in 2013, he earned approximately $1,300.
[155] Allowing for contributions by Jideofor and other deductions, Mrs. Maka is claiming these s. 7 expenses: 2009 - $3,065; 2010 - $893; 2011- $14,297.12; 2012 - $8,709; and 2013 – $9,283. The total amount of s. 7 expenses claimed is $36,247.12.
[156] Amobi Maka – Student at Edmund Campion Secondary School: Mrs. Maka is claiming expenses for tutoring, survey lessons, back to school uniforms, school registration fees, piano lessons and examinations, orthopaedic treatment braces, surgery and dental expenses, cell phone, phone bills, and fitness expenses.
[157] The specific amounts claimed are as follows: 2009 - $3,061; 2010 - $2,200; 2011 - $250; 2012 - $7,234; and 2013 - $845. Total expense claimed is $13,590.
[158] Tochi Maka – Student at St Edmund Campion Secondary School: Mrs. Maka is claiming expenses for piano lessons, back to school purchases, cell phone purchase and fees, school trips, fitness, swimming, and annual registration for school.
[159] The amounts claimed are as follows: 2009 - $1,008; 2010 – $500; 2011 - $1,647; and 2012 - $618. The total amount claimed is $3,773.
[160] Based on 2011, 2012, and 2013 income levels, the proportionate share of s. 7 expenses are 81.3 per cent for Mrs. Maka and 18.7 per cent for Mr. Maka. In DBS, the Supreme Court of Canada enumerated the factors to be considered in determining whether a retroactive award for child support should be made. There is no reason why the same criteria should not be applied to determine whether a retroactive s. 7 award should be made. Whitten J. reiterates this position in Kramer at para 96:
The guideline statutes/regulation does not stipulate when an application for support guideline amount or s. 7 expense is to be made, specifically the question of the retroactivity is not addressed. That omission is not fatal to the granting of such awards as Justice Bastarache, writing for the majority in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, observed that power is inherent in the powers of the court. Although Justice Bastarache’s decision was in the context of four appeals in which a parent in receipt of child support had not applied in a timely fashion for an increase given the augmentation in the income of the payor, the principles are equally applicable to s. 7 expense sharing.
[161] The D.B.S criteria requires an assessment of the following: whether the request for the contribution to the expense was made in a timely fashion; whether the payor contributed to any delay; the circumstances of the children; and any hardship the payor may face if the award is made: See D.B.S, paras. 99 to 102.
[162] In this case, Mrs. Maka’s request for contributions to s. 7 expenses was not included in the pleadings. It was introduced at trial. Mrs. Maka’s request for contribution to s. 7 expenses was unreasonably delayed. Further, the expenses have already been incurred, and the children’s participation in their educational pursuits, medical, dental, and orthopedic treatments is not in jeopardy. This observation is not in any way intended to minimise the fact that Mrs. Maka is currently under significant financial strain as she is, for all intents and purposes, shouldering the entire financial burden associated with these expenses.
[163] It should also be noted that Mr. Maka has not contributed to Mrs. Maka’s delay in seeking his contribution to the s. 7 expenses. Further, Mr. Maka is currently on social assistance, and a retroactive s. 7 award at this time will cause him significant hardship.
[164] For all these reasons, I will not make a retroactive s. 7 expense order. Having reached this conclusion, I have not applied the McLaughlin test of reasonableness and necessity to determine if all the expenses qualify as proper s. 7 expenses.
[165] Mr. Maka shall pay his proportionate share of future s. 7 expenses. He shall be informed of those expenses prior to the expenses being incurred and these expenses shall always to subject to the tests of reasonableness and necessity as set out in McLaughlin.
[166] Divorce Mate calculations indicate that Mrs. Maka’s proportionate share of s. 7 expenses is 81.3 per cent and Mr. Maka’s contribution would be 18.7 per cent.
Spousal Support
[167] Mr. Maka seeks an order that Mrs. Maka pay him spousal support. I have concluded that Mrs. Maka shall pay Mr. Maka spousal support on a non-compensatory basis at a level that is below the guideline amount.
[168] Mr. Maka is on social assistance. His ability to pay any child support arrears is in doubt and the child support arrears have been cancelled. Mr. Maka’s ability to pay s. 7 expense arrears is non-existent. His ability to pay his proportionate share of future s. 7 expenses is minimal. At current income levels, Mr. Maka’s child support payments are minimal, and, therefore, Mrs. Maka will bear the brunt of all expenses with respect to the children. For this reason, I have ordered a spousal support payment below the guideline amount.
[169] Section 15.2 (4), (5), and (6) of the Divorce Act set out the factors and spousal support objectives to be considered in determining entitlement to spousal support.
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[170] In Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, the Supreme Court set out three conceptual bases for assessing entitlement to spousal support:
(1) The compensatory basis – this seeks to compensate the Applicant spouse for foregoing careers opportunities as a result of the marital or cohabitation union;
(2) Contractual – this is grounded in s. 15.2(4)(c) of the Divorce Act, which requires the court to include “any order, agreement on arrangement relating to the support of either spouse” in the factors to be considered in determining whether the requesting spouse is entitled to support; and
(3) Non-Compensatory – Entitlement arises from the fact that a person who was receiving spousal support during the marriage is deprived of that support due to the breakdown of the marriage. Under this framework a spouse may be entitled to spousal support for an event not necessarily tied to the marriage or its break down - for example, ill health or economic down turn.
Position of the Parties
[171] Mr. Maka’s 2013 income is $15,169. Mrs. Maka’s 2013 income is $95,156. Mr. Maka submits that he sponsored Mrs. Maka to Canada; he sacrificed his own prospects and cared for the four children so that she could further her education; and at some point he tried to return to college but was unable to continue in the program because of his responsibilities to the family. Mr. Maka further submits that he is not intentionally under employed: he cannot work because his medical conditions have worsened, primarily due to stress and depression stemming from the end of the relationship; in addition, his frozen shoulder condition has worsened, requiring him to undergo surgery in 2012.
[172] Mr. Maka said that this was a 19-year-old marriage, and he contributed to the household expenses and mortgages. Mr. Maka said he gave up opportunities to retrain himself to increase his earning power due to his family responsibilities. Mr. Maka submits that he is entitled to a standard of living equal to that of Mrs. Maka.
[173] Mrs. Maka disputes all of this. She says that Mr. Maka was emotionally abusive and showed financial neglect. She further says that, although he occasionally dropped off and picked up the children from extracurricular activities, he was not really present in the children’s lives. Ms. Maka said that it was her sister and brother who helped her and made it possible for her to continue her education. Ms. Maka said that on multiple occasions she sought the help of friends to try to convince Mr. Maka to return to school in order to enhance his employment prospects. She said that Mr. Maka refused to do so.
Analysis
[174] Mrs. Maka had the assistance of Mr. Maka, her brother, and her sister to help with raising the children. Mrs. Maka said she sought the help of friends to convince Mr. Maka to further his education, and I am not satisfied that Mr. Maka made a serious effort to return to school to enhance his employment prospects, or that he was thwarted in this regard by his responsibilities to his family.
[175] Mr. Maka has faced a number of medical ailments during the marriage. He submits his mental and physical health have deteriorated considerably since the relationship ended. He claims that this medical condition has prevented him from returning to gainful employment. The fact that Mr. Maka has suffered medical ailments since at least 2001 is not disputed. Mrs. Maka says that the medical ailments have not progressed to an extent that should prevent Mr. Maka from seeking employment. Mr. Maka disagrees. It is not unreasonable to expect deterioration in his condition, now that he is in his early sixties. These medical ailments have affected his ability to maintain employment and he is now receiving social assistance. His current circumstances have created financial need. I conclude that Mr. Maka is entitled to spousal support on a non-compensatory basis as described in Bracklaw.
[176] As mentioned above, Mr. Maka is on social assistance, and his ability to pay any child support or s. 7 arrears is in doubt; further, his ability to contribute to future s. 7 expenses is minimal. His current income levels mean that his future child support payments will also be minimal. Therefore, Mrs. Maka will bear the brunt of all expenses with respect to the children.
[177] For all those reasons, Mrs. Maka is facing “compelling financial circumstances” and I am not inclined to award Mr. Maka any spousal support at this time. However, I award a symbolic amount, to recognise the fact that Mr. Maka will be entitled to increased spousal support when Mrs. Maka’s financial burden with respect to the children changes. The spousal support amount awarded is symbolic because it is the same amount Mr. Maka is required to pay monthly in child support - being $238 monthly.
[178] The circumstances which lead me to depart from the Spousal Support Guidelines are temporary. Therefore, by July 2 of each year commencing on July 2, 2016, Mr. Maka and Mrs. Maka shall provide each other with copies of their income tax returns and notices of assessment for the current year. By July 2 of each year commencing July 2, 2016, Mr. Maka shall provide Mrs. Maka with any medical reports available to him on the impacts of his health on his ability to obtain and maintain employment.
[179] By July 2 of each year commencing on July 2, 2016, Mrs. Maka shall provide Mr. Maka with a statement indicating how many of the children are still residing with her, the total cost of the children’s s. 7 expenses, the total contributions of each adult child to their s. 7 expenses, and Mrs. Maka’s contribution to these expenses. These conditions shall be in place for 15 years.
[180] This case is analogous to the provisions of s. 15.3(3) of the Divorce Act which states:
Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
[181] I have selected an amount lower than the guideline amount as support to be paid by Mrs. Maka to Mr. Maka. The amount Mrs. Maka must pay to Mr. Maka is reduced because she will be responsible for almost 100 per cent of child expenses, including s. 7 expenses for four children, because Mr. Maka’s contribution will be minimal if not nonexistent. Therefore, any subsequent reduction or termination of Mrs. Maka’s child expenses, as described, would constitute a change in circumstance warranting judicial consideration.
Conclusion
[182] Should the sale of 13 Dovergreen Drive be necessary the real estate lawyer who completes the sale of 13 Dovergreen Drive shall keep the proceeds in trust and make disbursements in accordance with the terms of this order.
[183] All monetary awards in this case shall bear pre and post-judgement interest of three percent. Should the parties be unable to agree on costs within 15 days from the date of these reasons, each party shall file a costs outline of no more than two pages, within 20 days from the date of this judgement.
Originally signed by
Barnes, J.
Released: May 29, 2015
CITATION: Maka v. Maka, 2015 ONSC 3480
COURT FILE NO.: FS-11-72175-00
DATE: 2015-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chinyelu Ayinofu Maka
Applicant
- and –
Peter Chucks Maka
Respondent
REASONS FOR JUDGMENT
Barnes, J.
Released: May 29, 2015