CITATION: Vogler v. Vogler, 2015 ONSC 424

COURT FILE NO.: FC-10-454-0

DATE: 2015/01/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SOPHEANY VOGLER

Applicant

– and –

RALPH KERSTEN VOGLER

Respondent

Meredith Holmes, for the Applicant

Thomas Marshall, for the Respondent

HEARD: February 3-7, and September 12, 2014 (at Ottawa)

REASONS FOR JUDGMENT

M. linhares de sousa j.

INTRODUCTION

[1] By the end of the trial of this rather long, drawn-out and acrimonious matrimonial matter the outstanding issues to be decided were the following:

(1) The calculation of an equalization payment in accordance with s. 5 of the Family Law Act, R.S.O. 1990, c. F.3. This issue also involves the determination of some preliminary questions namely, what value, if any, is to be put on a business (Universal Laser Engraving Inc.) owned by the Respondent, Mr. Vogler, and whether the value of a Mississauga property should be attributed to Mr. Vogler in his net family property statement for purposes of calculating an equalization payment. There is also a question of the value of a business, (Sovoco, an aesthetics and spa business), owned by Ms. Vogler.

(2) Child support, retroactive to the separation and ongoing. This issue includes the determination of the question as to whether an income should be imputed to Mr. Vogler. At the commencement of the trial the sharing of the children’s s. 7 expenses was also in issue but the parties resolved this by way of a mid-trial agreement. When this trial resumed in September, 2014, after a lengthy adjournment precipitated by medical difficulties experienced by Mr. Vogler on the last day of the trial on February 7, 2014, while he was under cross-examination, the question of the children’s s. 7 expenses was again raised as an issue.

(3) Spousal support claimed by Ms. Vogler. Mr. Vogler did not make a claim for spousal support although he was unemployed at the time of the commencement of the trial.

(4) The question of life insurance as security for any order made for child or spousal support.

(5) The removal, at the request of Mr. Vogler, of the non-depletion order placed on his business, “other than in the ordinary course of the business”, Universal Laser Engraving Inc. on July 28, 2010 by order of this Court.

PRELIMINARY MOTION FOR DECLARATION OF FRAUDULENT CONVEYANCE OF MISSISSAUGA PROPERTY

[2] This motion was brought by Ms. Vogler at the commencement of the trial. All parties, including Mr. Kersten Herman Oskar Vogler and his wife received notice of the motion. The motion was refused. The evidence showed that a Mississauga condominium property had been in the name of Mr. Vogler when the parties separated. Shortly after, and after the matrimonial litigation had been launched by Ms. Vogler, the Mississauga property was transferred by Mr. Vogler to his parents, Kersten Herman Oskar Vogler and Eva Susan Vogler.

[3] Ms. Vogler in October of 2010, through her then counsel of record, was given notice of this transfer by counsel for Mr. Kersten Oskar Vogler, and made no reply to it. (Exhibit #1). Ms. Vogler testified that if her lawyer at the time received that notice she had no knowledge of it.

[4] Mr. Kersten Oskar Vogler testified that, knowing that the litigation between his son and wife had commenced, he wanted to put the wife’s lawyer on notice that the property, in his view, was not to be considered in the matrimonial claim. According to Mr. Kersten Oskar Vogler, they wanted to deal with the property in complete openness. Mr. Kersten Oskar Vogler went on to testify that when he and his lawyer did not receive any reply from Ms. Vogler and her counsel regarding the notice of their intention to transfer the property from the husband to his father and his wife, they proceeded with the transfer and registered it on title on December 24, 2010. (Exhibits #2 and #13)

[5] Under these facts, I ruled that I was not prepared to find that there had been a fraudulent conveyance of that property. Nonetheless, in view of the parties not proceeding with their agreed upon arbitration of all of the property issues between them and the parties having asked this court for a determination of the property issues in this matrimonial matter, I ruled that I would proceed to deal with the property issues including the issue of whether the value of the Mississauga property should be attributed to Mr. Vogler in the calculation of an equalization payment and the vesting order in that property requested by Ms. Vogler. Mr. Kersten Oskar Vogler was present when that ruling was made and was a witness at this trial. I further ruled that I would not deal with the division of the matrimonial home chattels.

[6] During the trial evidence relating to matrimonial home chattels was presented by both parties. There were mutual accusations about the taking of certain chattels to which a party may or may not have been entitled as well as conflicting evidence regarding the value of such chattels. The evidence was so conflicting that it was impossible to make a decision on this issue in any event. It would also appear that this issue may have been before the court at another time, during the contempt proceedings Mr. Vogler brought against Ms. Vogler, seeking her imprisonment. Ms. Vogler has since purged her contempt.

POSITION OF THE PARTIES ON THE MATRIMONIAL ISSUES

[7] With respect to the property issues, it is the position of Ms. Vogler that Mr. Vogler’s business does have a value and that Mr. Vogler owes her an equalization payment of approximately $140,000. It is also the position of Ms. Vogler that the declared debts owed by Mr. Vogler to his mother, Karin Caine, are not genuine debts and ought to be considered as forgiven or as gifts to her son.

[8] Mr. Vogler takes the position that his business has no value and that the declared debts owed to his mother are genuine and continue to be owed by him.

[9] With respect to the Mississauga property, it was the position of Mr. Vogler that the evidence has established that this property never belonged to him and that he held it in trust for his father who asked that it be returned to him because of Mr. Vogler’s mounting debts and the matrimonial litigation. According to Mr. Vogler no value for this property should be attributed to him in calculating any equalization payment. Previously, Mr. Vogler took the position that the Mississauga property was a gift to him from his father, which was never used by the family, for which he did not even have a key, and should be excluded. According to Mr. Vogler, Ms. Vogler’s request that this property be transferred to her or that it be subject to a non-dissipation order, ought to be dismissed with costs in favour of his parents.

[10] Ms. Vogler takes the position that the value of the Mississauga property should be attributed to Mr. Vogler. It was her position that the property was gifted to Mr. Vogler by his father and not transferred to him “in trust” for his father as alleged by Mr. Vogler. It was her recollection that Mr. Vogler had a key to the property and that it was used occasionally by the family. She requests that this property be transferred to her or vested in her in satisfaction for any equalization payment or lump sum spousal support owed to her by Mr. Vogler. In the meantime, she submits that the Mississauga property ought to be subject to a non-dissipation order.

[11] With respect to spousal support, Ms. Vogler seeks compensatory and non-compensatory spousal support based on the responsibilities she took on for childcare during the marriage as well as the work she did in Mr. Vogler’s laser engraving business in the early years of the company. Shortly after the physical separation of the couple she had to live in a shelter and rely on social assistance to support herself and the children before she obtained her current employment.

[12] Mr. Vogler, firstly, contests that Ms. Vogler is entitled to any spousal support. It is his position that any labour provided by Ms. Vogler to his company was compensated by way of a salary received by her over the years she worked in the company. In any event, the company has never operated with a profit and was funded only by way of loans extended by his mother, Karin Caine. In fact, the family’s lifestyle was funded by the financial generosity of his parents during the marriage.

[13] Secondly, Mr. Vogler submits that he is not financially able to pay spousal support.

[14] Ms. Vogler takes the position that a much higher income, from the date of the separation, should be imputed to Mr. Vogler than he claims he is currently making. This is based on his historical earnings as well as the high lifestyle the family enjoyed during the marriage. She alleges Mr. Vogler’s earnings from the business provided the family during the marriage with a comfortable lifestyle and their needs.

[15] With respect to child support, Ms. Vogler acknowledges that the two children currently do live roughly equally with both parents. Although, it was her evidence that her youngest child, Vanessa, tends to spend more time at her home because it is easier for her to get to school from her house. Ms. Vogler submits, depending on what income this Court sees fit to impute to Mr. Vogler, there ought to be a set-off approach to child support. Ms. Vogler further submits that retroactive child support for approximately one year after the physical separation when she had care of the two children on a full-time basis ought to be awarded to her in accordance with the Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”]

[16] With respect to the s. 7 expenses of the children, at the end of the trial Ms. Vogler was questioning the fairness of the agreement she entered into in the mid-trial agreement reached by the parties. (See Exhibit #42). Nonetheless, she was prepared to respect that agreement.

[17] Mr. Vogler’s position on child support is that there should not be any order as to child support. Each party should be responsible for the expenses of the children when they are in their care. Mr. Vogler testified that the children, young adults at the time of the trial, moved between their parents’ home as they chose. It was also for this reason that Mr. Vogler does not see the need for any custody order.

[18] For this reason, it was the position of Mr. Vogler that he contested and saw no need for the request being made by Ms. Vogler for his maintaining any life insurance. He asks that his obligation to do so be terminated.

[19] Mr. Vogler submits that there should not be any retroactive child support. According to Mr. Vogler the parties lived in the same home for two years after the separation and all living expenses were covered either by him or by his parents.

[20] With respect to the children’s s. 7 expenses, the evidence revealed that Mr. Vogler’s parents cover the post-secondary education costs of the children by way of RESPs established by them for the children. Every other s. 7 expenses relating to the children, was to be shared between the parties in accordance with the parties’ mid-trial agreement.

[21] The mid-trial agreement provided that the parties would each be responsible for a one-third portion of the children’s s. 7 expenses, “not covered by the payments of their grandparents”. The children would be responsible for the remaining third.

[22] Mr. Vogler took the position that the children’s uncovered s. 7 expenses ought to be shared by the parties and the children in accordance with the parties’ mid-trial agreement.

[23] When the trial resumed in September of 2014, Mr. Vogler testified that Ms. Vogler was not respecting the parties’ mid-term agreement to the point where his daughter had to commence University without a needed computer. Other expenses Mr. Vogler testified to paying for his daughters which was not shared by Ms. Vogler included soccer expenses, school books, computer and computer software, OC Transpo expense for his daughter Vanessa. Regarding the cost of Vanessa’s phone, it was the position of Mr. Vogler that this was a cost that Vanessa should cover from her own resources as did her sister.

[24] In response to this evidence of Mr. Vogler, Ms. Vogler gave reply evidence relating to certain expenses covered by her relating to the extraordinary expenses of her two daughters. This was filed as Exhibit #54. Ms. Vogler maintains that it is her intention to respect the parties’ mid-term agreement regarding the children’s s. 7 expenses.

[25] With respect to Vanessa’s need for a computer, it was the evidence of Ms. Vogler that when she fled the matrimonial home in June of 2011 to go to a shelter with the children, she left behind in the family residence four computers which had been used for both Mr. Vogler’s business as well as by the family and he has retained possession of those computers.

[26] In the face of this problematic evidence, what was clear from the parties’ testimonies was that, while the parties did reach an agreement to share, in a one-third/one-third proportion, the children’s s. 7 expenses, the parties do not communicate in any functional way to inform each other of what expenses each is paying for the children. Furthermore, neither parent receives information from the children as to what expenses have been covered by the other parent or what money the other parent gives to the children or what s. 7 expenses are covered by the grandparents or what money the grandparents give to the children.

[27] Finally, Mr. Vogler takes the position that, in view of the absence of any obligation to pay an equalization payment by either party, the existing order for the non-depletion of assets relating to his business, ought to be vacated so that he can proceed to close the business and liquidate its assets.

FACTUAL BACKGROUND

[28] A brief factual background of this marriage would be helpful. Ms. Vogler came to Canada in 1976 from Cambodia and spent some years in Montreal. After meeting Mr. Vogler, she moved to Ottawa and the couple were married in April of 1993, and commenced living in Ottawa. At the time, Ms. Vogler having studied business at University was employed by the National Bank. Mr. Vogler was employed with his stepfather’s company, Commonwealth Plywood.

[29] Two children were born of the union, namely, Lara Katrina Vogler, born on August 9, 1994 and Vanessa Kimberly, born February 19, 1996. Upon the birth of her first child, Ms. Vogler ceased her employment with the Bank to stay home and care for the children. The parties agreed that any salary she made by her employment with the Bank would be eaten up in their childcare expense. As a result, Ms. Vogler also began to work in the business created by her husband and which operated out of the family home, while her husband continued to be employed by his stepfather’s company, Commonwealth Plywood.

[30] The evidence showed that Mr. Vogler’s company, Universal Laser Engraving Inc., was commenced in October of 1996. For approximately two years Mr. Vogler continued to work in his stepfather’s company, Commonwealth Plywood, while at the same time running his own business out of his home with Ms. Vogler. He then gave up his position at Commonwealth Plywood and began to work in his own business full-time.

[31] The evidence showed that Mr. Vogler’s company began with one laser machine in the home. Items for engravings were purchased and sold to companies. His clients then began to ask for custom made products and the company began to do imported wood products and flooring inlays. According to Mr. Vogler, business looked very promising when the company began to do the flooring inlays. However, according to Mr. Vogler, for economic reasons, in the years 2007, 2008 and 2009, the flooring business of his company declined.

[32] Ms. Vogler described in some detail the work she contributed to the business in the early years until her husband began to work at the business on a full-time basis. This evidence was not substantially contested by Mr. Vogler, although there might have been a disagreement in the degree to which the parties perceive Ms. Vogler helped her husband in his business. Nonetheless, it is fair to conclude from this evidence, that Ms. Vogler played an important labour role in the starting of the business until her husband left his full-time employment some 18 to 24 months later to work full-time in his business and for a number of years after.

[33] Ms. Vogler testified that once this happened, she had more time to spend with the children and their activities. It was her evidence that after this period she was primarily involved with the children and care of their home. Mr. Vogler was busy with his business. Nonetheless, it was Mr. Vogler’s evidence that he was a very “present” father when the children were young and he did everything relating to their care and activities.

[34] It was also not disputed on the evidence that Ms. Vogler received a salary for her work in Mr. Vogler’s business. According to Mr. Vogler, her salary, as recorded in the business financial documents strictly related to the number of hours Ms. Vogler put into the business. Ms. Vogler testified that during the initial years of the business she was not paid for her work. This statement appears to be supported by Ms. Vogler’s tax returns. Eventually, Ms. Vogler began to receive a salary but, it was the view of Ms. Vogler, that she was not appropriately paid for all of the work and time she put into Mr. Vogler’s business, particularly at the start-up of the business before Mr. Vogler began to work at the business full-time.

[35] The evidence showed that on average, until she ceased working in the business altogether in 2009, Ms. Vogler earned from the business approximately $5,000 to $8, 000 per annum. In one year, 2006, she earned as much as $10,000. (See exhibits #18 to 26). According to Ms. Vogler, the salary she received for her work in the business was not negotiated and was simply decided by Mr. Vogler. The parties both testified that Ms. Vogler ceased working for her husband’s business in 2009 and according to Mr. Vogler she was taken off the payroll of his company at the end of 2008.

[36] According to Ms. Vogler the salary she received from Mr. Vogler’s company was put into her personal bank account and she had control of the money. It was her evidence that she used it for her personal needs as well as that of the children. With respect to the general household expenses, such as their housing and food expenses, she did not contribute to those expenses that were covered by Mr. Vogler. Ms. Vogler testified that she also had use of a joint credit card with her husband until he took that away from her in 2005, in response, according to Ms. Vogler, her decision to take an aesthetics course with which Mr. Vogler did not agree. With respect to the expenses relating to the children while the couple were married, these were covered by both parties and from gifts of money which the children received from extended family.

[37] Shortly after taking her aesthetics course in 2005, Ms. Vogler created and operated an aesthetics and spa business (Sovoco) from her home. According to Ms Vogler she always made very little from this business or operated at a loss after her business expenses were factored in. Her income tax returns for the years 2001 to 2009 confirms this evidence. Ms. Vogler’s year after year business losses from her company for the years 2001 to 2009 operated to eliminate any income tax liability she may have had. Ms. Vogler testified that she continued to work at this business sporadically after the parties separated but always without a profit. She ceased working at it all together when she obtained her current employment in June of 2012.

[38] Mr. Vogler takes the position that Ms. Vogler continues to work at her business and relies on a copy of an order invoice for the company, dated July 18, 2013, filed as Exhibit #9. Despite this evidence, there is no persuasive evidence to establish that this company ever did or is currently providing any extra notable income to Ms. Vogler, than that which she has disclosed receiving. This Court can on this evidence reasonably treat it as a defunct or inoperable company.

DATE OF SEPARATION

[39] The parties experienced irreconcilable differences. There was a dispute between the parties as to when exactly they separated. Mr. Vogler took the position that the parties separated in April, 2009, which was relevant for him because according to Mr. Vogler, Ms. Vogler incurred substantial debt between April and October, 2009, but he could not specifically identify what that debt was.

[40] At the same time, Mr. Vogler chose a valuation date of the first of October 2009 for his net family property statement filed as Exhibit #41 and signed on February 6, 2014. The separation date used to obtain a divorce was October, 2009.

[41] Ms. Vogler testified that the parties finally separated only in October, 2009. She acknowledges that the parties discussed separation in the spring of that year but they decided they would try to reconcile and did. According to Ms. Vogler, Mr. Vogler’s mother came to try to help them but only made matters worse. By October, 2009, according to Ms. Vogler, the parties were well aware that there was no hope for their marriage. Mr. Vogler began living in the lower part of the family home and Ms. Vogler began to live in the upper part of the family home with the two children. Since that time the parties essentially lived separate lives.

[42] Based on the above evidence this Court finds that, for the purpose of the Family Law Act relief sought by both parties in this matter, the parties separated on October 1, 2009.

POST SEPARATION LITIGATION RELATING TO FAMILY HOME AND TOUCHING ON OTHER FAMILY LAW ISSUES

[43] The situation of the parties living in separate parts of the house lasted from the end of September, 2009, until June, 2011, when Ms. Vogler left the home with the two children to live in a shelter. In her own words, she felt more secure in a shelter than in living in the family home.

[44] During this approximate two-year period, communication between the parties did not improve. Ms. Vogler initiated her family law application in February of 2010. Police were called to the family home when Mr. Vogler responded to Ms. Vogler’s buying an electric heater by turning off the electricity and heating to the family home. The parties could not agree on what temperature the home should be kept in the winter. They disagreed about at what temperature the home had been kept during the marriage. Ms. Vogler testified that Mr. Vogler terminated the Internet and WiFi connection in the home. Mr. Vogler took away the vehicle which she had used to transport the children to school when a dispute arose about by whom and when the vehicle was to be filled with gas. Ms. Vogler acknowledged that her husband’s company owned the vehicle but that the family had always used it for their personal use as well. In any event, with the financial help of her family members, Ms. Vogler was able to obtain her own vehicle after she was denied access to the family/corporate vehicle.

[45] According to Ms. Vogler, Mr. Vogler refused to stock the family home with the necessaries the family required and which he had always paid for during the marriage, forcing her to replenish these supplies for herself and the children, even though she had very little income. According to Ms. Vogler when she received lump sum amounts as a child tax benefit she used those funds to support herself and the children and to pay for some of the children’s expenses such as their driver’s education and psychological counselling for one of her daughters who was having a hard time with her parents` separation. Ms. Vogler also testified that she used some of these same funds to take the children on holidays in order to escape the stress the family was living under in the family home.

[46] Litigation regarding title to the family home was commenced and Mr. Vogler’s mother, Ms. Karin Caine, was involved in this litigation because she was the owner on title to the property that the parties had enjoyed as the family home. Part of this litigation was resolved by way of a consent order of Warkentin J., dated August 3, 2011. Ms. Vogler was to vacate the home by September 1, 2011, failing which Ms. Caine was to be granted a writ of possession against Ms. Vogler without notice to her. In addition, mutual claims commenced and advanced by Ms. Caine and Ms. Vogler were to be withdrawn, all without costs. Ms. Vogler eventually withdrew her initial “constructive trust” claim to the family home located at 6228 Elkwood Drive. There is therefore, no matrimonial home to be considered in this litigation.

[47] In November, 2012, Mr. Vogler brought a contempt motion against Ms. Vogler, seeking to have her incarcerated because she did not vacate the family home on September 1, 2011, as she was required to do, causing Mr. Vogler “significant time and expense to package and remove” her belongings. It will be remembered that Ms. Vogler had physically left the home in June of 2011 to go to a shelter with the children. Rather than incarcerate her, Maranger J. on November 13, 2012, permitted Ms. Vogler to purge her contempt by paying Mr. Vogler $2,500 in costs which she did.

POST SEPARATION CIRCUMSTANCES OF THE PARTIES

MS. VOGLER

[48] In early 2011, Ms. Vogler sought out some counselling about her situation. In June, 2011, Ms. Vogler left the family home, without her personal belongings, with the children and lived in a women’s shelter with the two children for a short period of time. She then obtained social assistance and subsidized housing for a period of time. She also had receipt of, in varying amounts, the child tax benefits (for a total of $56,099.20) which she obtained in July and September of 2010 and spent to support herself and the children until she obtained her employment. Mr. Vogler claims Ms. Vogler received a higher amount in child tax benefits but did not provide any persuasive evidence in support of his claim.

[49] Ms. Vogler testified that she began to do some telemarketing to support herself and the children. She then took a course for which she was eligible as a social assistance recipient. Two months after completing this course she obtained her current employment with Krause, Canada LP in the sales of carpets in 2012.

[50] Her current and only annual salary is $55,794.12, inclusive of some minimal child tax credit which she receives. She also receives an amount of $550 per month from her employer as a car allowance, which Ms. Vogler testified was an actual reimbursement of car expenses she had in order to carry out her employment. (See Financial Statement, dated February 4, 2014 filed as Exhibit #3).

[51] Ms. Vogler also provided disclosure of her declared income for the years since the separation, 2010, 2011, 2012 and 2013 as follows (see tab 20 of Trial Record):

(a) 2010: $9,288

(b) 2011: $5,938

(c) 2012: $43,085

(d) 2013: $55,794.12

[52] In February of 2013, Ms. Vogler purchased her own home where she lives alone and with the two children when they come to stay with her. Her current monthly expenses reflect her own expenses and those of the children when they live with her. Her current monthly expenses clearly exceed her actual monthly income (see tab 20 of Trial Record).

[53] Her current debt load ($316,957.15) far exceeds the debt she had at the time of the separation ($19,314.23), made up of bank lines of credit, credit card loans, car loans, sundry bank loans and loans from family members, legal fees and her mortgage. The current equity in her home is minimal.

[54] On her financial statement (Exhibit #3) Ms. Vogler has declared net family property in the value of $45,976.80. Based on her net family property statement filed at tab 21 of the Trial Record, Ms. Vogler has calculated that Mr. Vogler ought to pay her an equalization payment of $140,000 pursuant to Section 5 of the Family Law Act.

MR. VOGLER

[55] After the eviction of Ms. Vogler from the family home, Ms. Caine permitted her son to continue to live there where he continues to live to the present day. Mr. Vogler lives there alone and shares this home with his daughters for the time they live with him.

[56] Mr. Vogler filed his Financial Statements, dated January 14, 2014 as Exhibit #10. When this trial first began Mr. Vogler was unemployed and had been so unemployed since the separation. On his financial statements filed with the Court, Mr. Vogler showed a zero income except for some child tax benefits or tax rebates. On Exhibit #10 Mr. Vogler on his financial statement still designated himself as self-employed carrying on business under the name of Universal Laser Engraving Inc.

[57] Mr. Vogler’s income tax declarations and notices of assessment show that for the following years since the separation he has declared the following income:

(a) 2009: $23,826 (all of which were RRSP withdrawals)

(b) 2010: $2,633

(c) 2011: zero

(d) 2012: zero

(e) 2013: zero

[58] Since the separation the corporate notices of assessment for Universal Laser Engraving Inc. also declared a zero income. It was Mr. Vogler’s evidence in chief that he is the sole shareholder, operator and employee of the business and he has not done anything with his business since the separation and it has been under a non-dissipation order.

[59] On cross-examination Mr. Vogler testified that in fact, during the month of January, 2014, he did work in his business for about one week and billed invoices for some work in the business in the approximate amount of $1,300. Mr. Vogler had no idea how much he invoiced in the business for the year 2013. It would appear that Mr. Vogler continues to work at the business.

[60] It was also revealed by the evidence that the corporation received a substantial payment of $30,000 for CRA refund of GST which Mr. Vogler, rather than keep it in the business used to pay a demand loan of approximately $25,000 made by his mother in May of 2013.

[61] When questioned about how he supported himself and the children when they lived with him Mr. Vogler testified that he received support from his two parents. This was confirmed by Ms. Caine who testified that since the separation the only direct financial assistance she has given to Mr. Vogler is to assist him with his living expenses. Her explanation for this was that she did this because he has very little. The indirect financial assistance she continues to give Mr. Vogler, of course, is to be owed the loans, totaling some $395,730.17, she gave to Mr. Vogler to run his business at a loss from its inception in 1996 to the present, a period of 18 years (IOUs, filed as Exhibit #47). The evidence also showed that Mr. Vogler maintained a bank account, which he did not disclose on his financial documents, into which his father deposited money to assist him with his living expenses. No specific amount of what Mr. Vogler was given by his parents to live was provided by Mr. Vogler. Mr. Vogler declared monthly expenses on his January 14, 2014 financial Statement for himself and the children of approximately $1,700 per month which presumably could be the amount Mr. Vogler receives from both of his parents to live.

[62] With respect to his search for employment Mr. Vogler testified at the beginning of the trial that he began to look very hard for employment starting in 2011, two years after the separation, but without success. It was the evidence of Mr. Vogler that the litigation between himself and his wife kept him very busy because until very recently he did not have a lawyer and so he did not have time to look for work because he had to work on the litigation.

[63] He provided details of his history of earnings prior to starting his company which was in the high $60,000s, also confirmed by Mr. Vogler’s income tax returns. Mr. Vogler also gave evidence of the extent of his search for employment. Evidence of his job searches were filed as Exhibit #11.

[64] When the trial resumed in September, 2014, Mr. Vogler had found employment as a full time technical support specialist (see Exhibit #53) earning $35,000 per annum with extended health and group RRSP plans. He submitted that he was not in any better position now to pay spousal support than he was when the trial began. His income was certainly clearer.

[65] With respect to his own assets and debts since the separation, Mr. Vogler owns no land. During the marriage he transferred land which had been a matrimonial home he owned to his mother and declared himself not to be a spouse on the transfer documents. I find that Ms. Vogler had no knowledge of this transfer. During the marriage Mr. Vogler owned RRSPs that he accumulated during his employment prior to working full-time in his company. The RRSPs were drawn on according to Mr. Vogler during the marriage when his business made no income. The RRSPs he owned at the time of separation ($4,213) have since been substantially depleted. It is the position of Mr. Vogler that his business has no value and is also the source of the substantial debt he owes to his mother because of the funds she advanced to run the business since its inception.

[66] According to Mr. Vogler since the separation he has incurred more debts to his parents who assisted him in paying down his high interest credit card debts. On his financial statement Mr. Vogler declares his total current debts to be $441,178.65, most of which are owed to his two parents. In fact, Mr. Vogler since the separation has managed to reduce the total amount of debts he had at the time of separation namely, $473,529.82.

[67] On his financial statement (Exhibit #10) Mr. Vogler declares a negative net family property value of $-632,340.57. In an up-to-date Net Family Property Statement filed by Mr. Vogler (Exhibit #41) it is the position of Mr. Vogler that Ms. Vogler owes him an equalization payment of $13,113.74. In that statement he has not included any value for his company, nor has he included the value of the Mississauga property.

VALUE TO BE ATTRIBUTED TO UNIVERSAL LASER ENGRAVING INC.

[68] It was the position of Mr. Vogler that his company has no value. Yet, as he is required to do under the Family Law Rules, Mr. Vogler did not obtain an evaluation of his business, relied entirely on the business evaluation obtained by Ms. Vogler and responded to that evaluation with a “Limited Critique” of it by his own professional, who right up to the moment he testified was receiving new documentation (Mr. Desnoyers’ response to his Critique) relating to the business which was in the control of Mr. Vogler. A process chosen by Mr. Vogler that would hardly engender confidence in its reliability.

[69] It was the evidence of Mr. Vogler that since its commencement in 1996 Universal Laser Engraving Inc. has never turned a profit. After he left his employment and began to dedicate his full-time efforts to the company business he and the family lived by withdrawing on the business when needed and from the depletion of the RRSPs, in the latter years, which he had accumulated when he had other employment. At another part of this testimony Mr. Vogler also stated that the business did provide the family a living in the early years but began to decline with the world economic crash after 2007. In fact, according to Mr. Vogler the company was audited in 2001 given that it never registered a profit and yet the family had a large home and appeared to have a comfortable lifestyle. There apparently was no subsequent action taken by CRA.

[70] Ms. Vogler testified that while she did some banking and bookkeeping for the company, it was Mr. Vogler who took care of the final recording of the finances of the company she had little to no knowledge of the final finances of the company from year-to-year. Her evidence was that to her knowledge, the company did make some money between the years 2000 and 2005. She acknowledged that after 2005 the company then began to lose money and this was when she began to explore the starting of her own business and was less involved in her husband’s business.

[71] It was the evidence of Mr. Vogler that the business began with one piece of engraving equipment in the family home which was purchased by money given to him by his mother which he then lent to the company. Over the years other equipment was purchased and equipment replaced again all with money loaned to him by his mother and that he then lent to the company. Whenever money was advanced to the company by his mother he would sign an IOU for the amount.

[72] According to the testimony of Mr. Vogler the business also ran its activity and purchased equipment using a line of credit in the name of his mother, Ms. Caine. The company was obligated to meet the monthly interest payments on that line of credit and there is evidence of these payments on the company books. According to Mr. Vogler, Ms. Vogler was well aware of the company’s regular interest payments on that line of credit.

[73] Mr. Vogler testified that in 2005 the company had to pay Ms. Caine $25,000 as payment on the various loans made by her to the company and according to Mr. Vogler the company had to obtain a bank loan in order to make that payment. The evidence also showed that Mr. Vogler has also satisfied some outstanding debt to his mother by having his company do work on his mother’s home, valued at approximately $35,000.

[74] In April of 2013, after the matrimonial litigation had been commenced, Ms. Caine’s lawyer served Mr. Vogler with a request of acknowledgement of debts owed to Ms. Caine and made a demand for immediate payment of the interest due on the money owed to Ms. Caine.

[75] Ms. Caine’s lawyer wrote to Mr. Vogler demanding payment on the loans in a letter dated April 18, 2013. The demand for payment claimed a total debt of $418,470.05 supported by multiple handwritten IOUs with dates commencing in January, 1993, and ending in June, 2009. The immediate demand payment was for a minimum payment of $24,725, made up of a minimum payment on each separate loan, with the balance outstanding of $393,745.05 which could be called at any time at the discretion of Ms. Caine (see Exhibit #14). Ms. Caine testified that to her knowledge this was the extent of her son’s indebtedness to her.

[76] On May 8, 2013, Mr. Vogler signed an agreement and acknowledgement of total debt on loans advanced by Ms. Caine, without interest to his mother. The total amount acknowledged was $395,730.17 (see Exhibits #47 and 48). The individual IOUs were filed as Exhibit #40 and Ms. Caine testified at the trial and appeared to have very little knowledge of the details of the individual IOUs. It was clear that it was Mr. Vogler who had this information and she relied on him for the details.

[77] When cross-examined about the IOUs and what understanding Ms. Caine had with her son about the repayment of the various loans she made to her son over the years, Ms. Caine testified that it was understood that when the business could pay then she would be repaid her loans. When questioned about whether the repayment was to come from her son directly or the company, her evidence was that she never put her mind to the question of the business ever failing.

[78] It was the evidence of Mr. Vogler that after the separation he did not work at the business and could not make any of the company’s interest payments. This demand loan, as already mentioned was paid by tax refunds returned to the Company from Revenue Canada, while the non-dissipation order was in full force, it needs to be added. In all of the years of the operation of the company, the demand for payment made by Ms. Caine in April of 2013, according to Mr. Vogler, was the first demand for payment ever made by his mother. This was confirmed by the evidence of Ms. Caine.

[79] It was the view of Mr. Vogler that the business should be wound up, its assets sold and his debts paid off, most of which are owed to his mother, at the end of which there will be nothing left. Mr. Vogler testified that he made efforts to find out what he might receive if he tried to sell the remaining equipment and inventory of the company but discovered that there was no market for such items. Yet, in one document produced by Mr. Vogler, he attributes $86,085.33 to the inventory of his company (see Exhibit #45). Mr. Vogler testified that he would have wound up the business already had it not been for the non-dissipation order regarding it obtained by Ms. Vogler after the parties’ separation.

[80] Ms. Vogler does believe the business has value and relies on the business evaluation obtained by her from her expert, Mr. Jean-Claude Desnoyers. She believes the business has some value to Mr. Vogler or he would not have continued to work at it since the separation. In fact, the evidence showed that Mr. Vogler has worked minimally at the business since separation, has received payments into the business account (GST payments) and paid out bills (demand loan by Ms. Caine). Ms. Vogler denies that she was made aware of the extent to which Ms. Caine gave her son loans over the years and that Mr. Vogler ever told her that the business had no value. In fact, it was her evidence that the family enjoyed a reasonably comfortable living from the work done in the business by both of them. As she testified she trusted her husband.

[81] The qualification of Mr. Desnoyers to make the business evaluation of Mr. Vogler’s business was not contested. His mandate, his source documents and evaluation were filed on consent at tabs 14, 15 and 17 of the Trial Record (Exhibit #51). Mr. Desnoyers also testified at the trial and explained his report on the company. He testified that one of the first of his determinations in arriving at a value for the company was whether to value the company as a going concern or as a liquidated business. He chose to value the business as a going concern. While Mr. Desnoyers recognized that the company operated at a loss year-after-year, based on the information given to him regarding the lifestyle enjoyed by the family over the same years the company recorded a loss, he was convinced that the company documents did not fully show what financial activity was really going on and that it would be reasonable to assume that the company could very well make a profit in the future.

[82] When questioned if whether his opinion would change if he knew that the company had not operated since the separation, Mr. Desnoyers testified that, while he still believed his approach was the correct one, the value of the company’s inventory may take on a greater importance. Nonetheless, he believed his approach was the correct one and that the business, as a going concern had a value to Mr. Vogler or it would not have been logical for him to keep working at the business operating at a loss year-after-year dating back to its commencement in 1996, some 18 years. In fact, the evidence showed that Mr. Vogler has continued to work in the business since the separation, although minimally.

[83] Mr. Desnoyers testified that because of the deficit registered in the company books year- after-year, he could not attribute any value to the company shares. He therefore examined the amounts due to the principal and only shareholder, Mr. Vogler, which would be an asset to him. Mr. Desnoyers also examined the large outstanding debt Mr. Vogler had acknowledged to his mother in 2013 relating to the business and its operation and recognized that some question had been raised in the litigation by Ms. Vogler as to the legitimacy of those debts and whether they will ever have to be paid back.

[84] Mr. Desnoyers came to his evaluation conclusions at page three of his evaluations:

We have used two scenarios:

1. We have assumed that the amounts owed by the company to Ms. Caine (mother) and to Mr. Kersten Vogler, are valid. The fair market value of the due to Mr. Chris Vogler is $171 000 under this scenario.

2. We have assumed that the amounts owed by the company to Ms. Caine and Mr. Kersten Vogler are actually amounts owed to Mr. Chris Vogler. The fair market value of the due to Mr. Chris Vogler under this scenario is $307 000.

We do not know which one of these scenarios is the most appropriate. We were provided with 2005 financial statements from Ms. Som (schedule 3 and 4) in which there is no mention of the amounts owed to Ms. Caine and Mr. Kersten Vogler. When we look at the 2005 financial statements provided by Mr. Chris Vogler, we can see that the financial statements provided by Ms. Som were still draft financial statements as several modifications were done to them, other than the due to shareholder and related.

[85] Mr. Vogler presented his own business evaluator, Mr. David Clark, whose qualifications were also not contested at trial, to provide the Court with a critique of Mr. Desnoyers’ evidence relating to what value, if any, the business had to Mr. Vogler. Mr. Clark emphasized that he was not retained to do a business evaluation on the business but rather to provide a critique of Mr. Desnoyers’ evaluation and that he worked exclusively from the documentation provided to him by Mr. Vogler and as acknowledged by Mr. Vogler (see 5 pages in Exhibit #45). Mr. Clark’s “Limited Critique of Report Prepared by SME Business Appraisers Inc. in Respect of Mr. Chris Vogler” was filed as Exhibit #47.

[86] Mr. Clark found Mr. Desnoyers’ approach to the business evaluation to be unreasonable. According to Mr. Clark, given the company’s years of lack of profitability, its lack of operation over the last four years and its substantial indebtedness, the company had to be evaluated on a liquidation basis. This essentially meant that the only value of the company lay in its inventory. Furthermore, the inventory was only valuable if a purchaser could be found for the inventory. Furthermore, the identification and existence of such a potential purchaser was not clear. Mr. Clark found Mr. Desnoyers’ use of a book value for the company’s inventory to also be unreasonable because of “Mr. Vogler’s assessment of the inventory, including unsuccessful efforts to market the inventory.” (Page 2). On cross-examination, Mr. Clark testified that he was not given any information or details about the company’s inventory by Mr. Vogler.

[87] On the evidence as a whole, I was not persuaded to put much reliance on Mr. Vogler’s reply expert evidence to the business evaluation provided by Ms. Vogler. The basis of that opinion was clearly incomplete and its source material determinedly one-sided and exclusively controlled by Mr. Vogler who was the best positioned individual to provide a complete evaluation of his business and chose not to do so.

[88] Furthermore, I am left with many doubts relating to the acknowledged debt owed by Mr. Vogler to his mother. I do not question on the evidence as a whole that Ms. Caine has been loaning her son money that he in turn has used to fund, also by way of loans, his business activities and living expenses over the years as she has continued to do post separation. What I do question on the evidence is whether Mr. Vogler will ever be obligated to pay all of the debts acknowledged by him, post separation to his mother. On the facts of this case, on a balance of probability it is most unlikely that he will ever be required to do so. Demands for payment by Ms. Caine have been made only when the couple were having matrimonial problems (2005) and after the matrimonial litigation began. For this reason, I accept Mr. Desnoyers’ evaluation that the value of Mr. Vogler’s company is in the amounts outstanding due to him that I fix at $307,000.

MISSISSAUGA CONDOMINIUM

[89] The question to be determined relating to this property is whether the value of this property ought to be attributed to Mr. Vogler as the beneficial owner for the purposes of these family law proceedings?

[90] The evidence regarding this property and how Mr. Vogler came to be the registered title holder of the property was extremely conflicting. The evidence indicated that the property originally belonged to Mr. Kersten Oskar Vogler and his wife, Ms. Eva Vogler. On December 19, 1997, it was transferred to Mr. Vogler. Mr. Vogler at that point was married to Ms. Vogler and they had been married for approximately four years. According to Ms. Vogler when her father-in-law and his wife purchased the Mississauga condominium, they resided in yet another property.

[91] The registration document of the Mississauga condominium indicated that the property was transferred to Mr. Vogler as a gift from his “parents to son less $20,000” mortgage back which was also registered on the property registry. (Exhibits #1 and 13).

[92] Along with this legal transfer, Mr. Vogler and his father and stepmother entered into a Use Agreement which took effect on December 22, 1997, whereby Mr. Vogler, titled as the “Owner” agreed to allow his father and stepmother, titled as the “Occupant”, to use the Mississauga condominium whenever he was in Canada and that Mr. Kersten Oskar Vogler and his wife would pay all “related condominium costs (taxes, condominium fees, assessments, reasonable maintenance expenses, etc.) (see Exhibit #16). This Use Agreement is undated. The evidence showed that Mr. Kersten Oskar Vogler and his wife did pay all of the expenses relating to the condominium over the years.

[93] Mr. Kersten Oskar Vogler testified that at the time of the original transfer of the Mississauga property to his son in 1997, he and his wife had decided to begin spending substantial time in the United States of America. For that reason he transferred the property to his son so that he could take care of it. In fact, the letter Mr. Kersten Oskar Vogler had his lawyer write to the Ottawa lawyer indicated that at the time Mr. Kersten Oskar Vogler and his wife had obtained permanent residency status in the United States and moved to Florida. They continued to use it primarily when they returned to Toronto for a few months in the summer. They also acknowledged that Mr. Vogler used the condominium from time to time during business visits to the Toronto area. (See Exhibit #1)

[94] Mr. Kersten Oskar Vogler testified that he did not give his son a key to the property but registered him at the reception area of the condominium so that he could access the property if he needed. Mr. Kersten Oskar Vogler testified that “to his knowledge” his son never used the property when he was in the United States.

[95] On his cross-examination Mr. Kersten Oskar Vogler testified that he gifted the Mississauga property to his son. According to Mr. Kersten Oskar Vogler this was done on the advice of his lawyer. Mr. Kersten Oskar Vogler went on to say that, also on the advice of his lawyer, they also had this “trust” so as to exclude it from any matrimonial dispute. At the time there was no evidence of any matrimonial dispute between Mr. Vogler and his wife.

[96] Mr. Vogler testified that he always considered that he held the property in trust for his father and stepmother and the property was transferred to him so that if his parents were away he had authority to deal with the property if need be. It was the evidence of Mr. Vogler that the “trust” agreement was verbal and was never put in writing. Contrary to the evidence of his father, Mr. Vogler testified that he had a key to the property, and his wife did not. According to Mr. Vogler he and his wife never used the property as a matrimonial home.

[97] Ms. Vogler testified, the specifics of which were not contested by Mr. Vogler, that the family did stay at the Mississauga property from time to time. According to Ms. Vogler, she knew her husband to have a key to the condominium because the family stayed there when the parents were not there and Mr. Vogler had a key to get in and out. The family also visited Mr. Vogler’s parents at Christmas and stayed in the condominium with them.

[98] There are two last documents to be considered relating to this property. The first is the Transfer Deed, transferring the Mississauga property from Mr. Vogler to his father and stepmother, for zero consideration on December 24, 2010, well after the matrimonial litigation had commenced. There was no reference to the $20,000 mortgage back that had appeared on the original transfer from parents to son. This mortgage, however, was discharged at about the same time as the transfer of the property. There is no evidence that any money was exchanged between Mr. Vogler and his parents relating to the discharge of this mortgage. According to Mr. Vogler, the transfer was made because of the matrimonial litigation as well as because of his high credit card debts at the time.

[99] The second document is an undated (possibly subsequently dated) IOU between Mr. Vogler and his parents, Mr. Kersten Oskar Vogler and his wife, whereby Mr. Vogler promised to pay his parents $144,000 without interest on the 22nd day of December, 2012, which IOU, was “secured by the condominium.” This was two years after Mr. Vogler had already given back to his parents the condominium property. According to Mr. Kersten Oskar Vogler this IOU was also done on the recommendation of his lawyer to supplement the mortgage back on the property and to establish a fair market value for the transfer of the property from one family member to another. Once the condominium was returned to him by Mr. Vogler the IOU was cancelled. There is no evidence of the cancellation of the IOU even though the transfer of the property occurred approximately two years before the due date of the IOU. There is also no evidence of $144,000 being exchanged between Mr. Vogler and his parents. It appears to be a made up paper loan from Mr. Vogler’s point of view.

[100] In the face of this contradictory evidence I come to the conclusion that despite all of the efforts undertaken, once the matrimonial dispute had been commenced, to rid Mr. Vogler of any title to the Mississauga property, the value of that property should be attributed to him at the date of separation as beneficial owner. While Mr. Vogler argues that his “trust” argument should be accepted by the Court it would mean ignoring the accuracy and veracity of land registry documents. A gift of a property cannot at the same time be a property held in trust between the same parties. Mr. Vogler does not seem to give much importance to the accuracy and veracity of land registry documents. For example, Mr. Vogler wrote that he was not a “spouse” in 2000 on a transfer deed of a property, transferring from his name to his mother’s name, a property that was a former matrimonial home (see Exhibit #46). He clearly was a spouse at the time. It is not very believable that any party to this litigation would have had need of a lawyer to explain the meaning of that term. Mr. Vogler`s credibility is seriously in issue.

[101] Nor do I find it very persuasive that a transfer of property had to be undertaken in order that Mr. Vogler would be able to deal with the property, if he had to, in the absence of his parents. There are other more obvious ways of doing this short of a method demonstrating an intention of an outright transfer of property. There is no evidence that any mortgage or IOU funds were ever transferred between Mr. Vogler and his parents. These are clearly only paper transactions intended to cloud the real transaction going on which was a gift of property given to Mr. Vogler by his parents in 1997. The intention of Mr. Vogler and his parents to have it otherwise, in the face of this family litigation, does not make it so. I find Mr. Vogler to be the true beneficial owner of the Mississauga property and that his parents hold the title in trust for Mr. Vogler. I have no doubt on the evidence that the Mississauga condominium will eventually be returned to Mr. Vogler, as the beneficial owner.

[102] I further find that the family used that property from time to time when it suited the parties and their family for family reasons as well as for business reasons. This use, however, appears to have been so sporadic and infrequent, that this property cannot be said to have become a matrimonial home. The gift of the property can clearly be traced and is consequently excluded property pursuant to section 5 of the Family Law Act. Ms. Vogler, herself, recognizes this exclusion in the Net Family Property filed by her at tab 21 of the Trial Record.

[103] The value of the Mississauga condominium should therefore be attributed to Mr. Vogler at the time of separation in his property statement and Mr. Vogler ought to have provided an evaluation of it, which he has not. However, on his financial statement, dated January 14, 2014, filed as Exhibit #10, Mr. Vogler has attributed a value of $256,500 to this property, apparently free of any registered charge. There is no supporting documentation for this value. Based on the best evidence before me I attribute a value of $256,500 to this property. The same value shall appear as excluded property for the purpose of determining the equalization payment under the Family Law Act.

EQUALIZATION PAYMENT

[104] When the value of Mr. Vogler’s company, which I have found for the Universal Laser Engraving Inc. and the addition and subtraction of the value of the Mississauga property are factored into the up-to-date net family property statement provided by Mr. Vogler, filed as Exhibit #41, I find that Mr. Vogler owes Ms. Vogler an equalization payment of $140,000. See also Ms. Vogler net family property statement found at tab 21 of the Trial Record which I accept. Mr. Vogler is, therefore, ordered to pay Ms. Vogler an equalization payment of $140,000. As the beneficial owner of the Mississauga condominium, I find that he is well able to pay that amount. I also conclude that the payment of the equalization payment ought to be secured.

IMPUTATION OF INCOME TO MR. VOGLER FOR DETERMINATION OF SPOUSAL SUPPORT AND CHILD SUPPORT

[105] There is no question on the evidence that Mr. Vogler certainly delayed his search for lucrative employment, choosing to live on the generosity of his parents and concentrating his time and efforts on this litigation and sporadically working in his business.

[106] The evidence relating to the history of Mr. Vogler’s past employment, prior to the commencement of his business indicated that Mr. Vogler earned in the $60,000 per annum range. In support of her case on this issue, Ms. Vogler called an expert witness, Ms. Suzanne Turpin, an occupational therapist and vocational evaluator to testify to the potential earnings of Mr. Vogler, given his work experience and work skills as provided by him in his CV and other employment on line links.

[107] Ms. Turpin’s qualifications as an expert were challenged. After the qualification hearing and the submissions of counsel on this point I ruled that Ms. Turpin was qualified to give an opinion relating to an individual’s (namely, that of Mr. Vogler) employability and transferable skills and earning capacity working with a given set of assumptions.

[108] Ms. Turpin’s expert report is found at tab 18 of the Trial Record, filed as Exhibit #52. It is not necessary to repeat the content of her report in detail. In brief, Ms. Turpin concluded that, based on the information she received concerning Mr. Vogler’s work and earning history and the information he himself provided (LinkedIn profile), Mr. Vogler did indeed have good transferable skill to apply for jobs in the manufacturing sector. His success would depend on how he marketed himself and his job searching strategies.

[109] If Mr. Vogler searched for and obtained a job in the manufacturing sector, it was the opinion of Ms. Turpin, that Mr. Vogler could command a salary in the $90,000 range. If he exited the manufacturing sector, in IT for instance, at the management level, then with his skills he could expect to earn less, in the range of $60,000. If he obtained employment out of the management range then his earnings would be less.

[110] On cross-examination Ms. Turpin was asked to comment on the bundle of job applications presented by Mr. Vogler (Exhibit #11), Ms. Turpin testified that for the limited and short time period involved Mr. Vogler submitted quite a few job postings. When she examined what jobs he applied for she concluded that Mr. Vogler appeared to be qualified for the jobs to which he applied and that the jobs seemed to fit in with the salary range which she had identified as being appropriate for Mr. Vogler’s experience and transferrable skills. She also commented on some individual job applications made by Mr. Vogler.

[111] Ms. Turpin’s evidence may have been rendered moot by Mr. Vogler obtaining employment, during the adjournment of this trial. His employment contract with Kivuto was signed by him on August 29, 2014 (Exhibit #53). It is in the IT sector; is not management level, and his base annual salary, $35,000, in a range that is less than his past earnings, which clearly was a very real potential testified to by Ms. Turpin. Using hindsight, I would have to conclude that Ms. Turpin’s evidence was fairly accurate.

SPOUSAL SUPPORT

[112] Is Mr. Vogler capable of finding more lucrative employment? Given all of the evidence relating to his work experience and employment skills, I must conclude that Mr. Vogler is capable of earning an income at a level at least equal to that of Ms. Vogler, given her much less work experience and developed skills and having been out of the work force for a number of years. There is no question that for the years immediately following the separation, Mr. Vogler was intentionally unemployed, choosing to live off the generosity of his parents and to dedicate his time engaging in this litigation. Nonetheless, his current employment and salary range is within the reasonable possibility identified by the evidence as a whole. For that reason, Mr. Vogler cannot be said to be underemployed. I can find no pressing reason on the evidence for imputing a higher income to him at this time. Because of this a case has not been made out by either party for ongoing spousal support. They are both capable at this time to provide for their own support.

[113] I am persuaded on the evidence, however, that Ms. Vogler is entitled to compensatory spousal support which would be appropriately satisfied by a lump sum payment. Ms. Vogler gave up her own employment during the majority of the marriage in order to care for the children and to work in her husband’s company. While she received a salary during the years she worked for her husband’s company, it was minimal, and particularly during the years she kept the business going while her husband maintained his outside employment. Ms. Vogler had some of her needs and the needs of the children met post separation by living in the family home until June of 2011. She also had use of the substantial payment of the child tax benefit she received to support herself and the children. Ms. Vogler’s greatest period of need for support was after September, 2011, when she fled to a shelter and was reliant on social assistance until she could retrain and seek employment which happened relatively quickly after she left the family home.

[114] Ms. Vogler has demonstrated good faith efforts to provide for her own needs as soon as possible. The same cannot be said for Mr. Vogler who by his own testimony only seriously began to seek employment in 2011, after Ms. Vogler fled the family home. Ms. Vogler incurred substantial debt post separation in meeting her own needs and those of the children which were not otherwise provided for. She also had no child support for a short period when she had the primary care of the children before the shared parenting, which now exists, came into being. Her current need for support is to diminish her current debt so that she can plan for her future and make up the lost years of employment during her marriage and recoup some of the money she expended post separation without financial assistance from Mr. Vogler.

[115] The factors to be considered in an award of spousal support, either by way of periodic payment or a lump sum can be found in 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (as am.).

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.

[116] Section15.2(6) of the Divorce Act stipulates the objectives of a spousal support order:

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.

[117] After considering the above legislative sections of the Divorce Act and the facts of this case, I find that Ms. Vogler is entitled to a lump sum spousal award which I fix in the amount of $56,000, which represents roughly the child tax benefit which she received and used to meet her needs and those of the children post separation. This lump sum support is payable forthwith. I conclude this payment ought to be secured as well.

CHILD SUPPORT

[118] With respect to child support, I am not persuaded that a case has been made out for ongoing child support or retroactive child support. Both parties appear to share equally the care of their children while they are with them. Despite the difference in salary between the two parents, for the reasons mentioned above, I am satisfied that these two parents are equally financially capable of caring for their children. Their legal responsibility in this regard is supplemented by the generosity of grandparents who are prepared to pay a substantial portion of these two children’s s. 7 expenses as well as give other gratuitous payments to the children.

[119] The parties have reached an agreement on the sharing of the children’s uncovered s.7 expenses which continues to be a source of dispute between them. Both parties have presented evidence relating to what expenses they have personally incurred in meeting the s. 7 expenses of their two children. See Exhibits #3 and 15. From examining that evidence, while there may be a slight differential in what one parent claims they may have paid compared to the other parent, I am not persuaded to make any order relating to the s. 7 expenses of the children other than to indicate that this Court’s order, with respect to the past and ongoing s. 7 expenses of the children, is that those expenses are to be shared by the parties in accordance with their agreement filed with this Court as Exhibit #42.

NON-DEPLETION ORDER AND INSURANCE POLICY AS SECURITY FOR SUPPORT

[120] Once the payment of the monies due by this judgment to Ms. Vogler by Mr. Vogler has been made, the non-depletion order shall be vacated and Mr. Vogler will no longer be required to maintain his life insurance policy as security for support. Post-judgment interest will apply until the full amount of money owed to Ms. Vogler is paid.

DISPOSITION

[121] For the reasons given above, there will be a final order as follows:

(1) There will be no order as to custody. It is recognized that the parties have agreed to share custody of their two children with the children, given their age, essentially deciding how they will share their time with their parents.

(2) There will be no order for child support and each parent shall be responsible for the support of their children while they reside with them.

(3) The children’s s. 7 expenses shall be shared by the parents in accordance with their agreement filed with this Court as Exhibit #42.

(4) Mr. Vogler is ordered to pay Ms. Vogler an equalization payment of $140,000 with post-judgment interest.

(5) Mr. Vogler is ordered to pay Ms. Vogler a lump sum spousal support of $56,000 with post-judgment interest.

(6) On the facts of this case, I am persuaded that the payments due to Ms. Vogler by Mr. Vogler need to be secured. Mr. Vogler’s position throughout this litigation is that he owned nothing of value and that Ms. Vogler was entitled to nothing. In fact on his calculation, she owed him an equalization payment. Mr. Vogler was quick to rid himself of the only asset he owned, namely the Mississauga property, in the middle of these matrimonial proceedings, taking the position that the property did not belong to him when it clearly did. Mr. Vogler made no effort to seek employment for two years after the separation in order to meet his personal support obligations. He does not recognize in any way the economic disadvantages and negative financial consequences of this marriage and its disruption to Ms. Vogler

I have found that Mr. Vogler’s parents hold title to the Mississauga property in trust for Mr. Vogler who is the true beneficial owner of the property. There will be an order that all rights, title, and interest in the property at 3650 Kaneff Crescent, Apartment 3001, Mississauga, Ontario L5A 4A1, legally described as Unit 1, Level 29, Parking Unit 49, Level A, Parking Unit 50, Level A, and Locker Unit 162, Level A, Peel Condominium Plan 232; together with its appurtenant common interests; City of Mississauga, Regional Municipality of Peel, Land Titles Division of Peel (No. 43), held and registered to the names of Kersten Herman Oskar Vogler and Eva Susan Vogler, as joint tenants, shall vest, absolutely, in Ms. Sopheany Vogler, with vesting of title to her, so that she may sell the property with a view to satisfying the total amount of $196,000 granted to her under this judgment.

In the event that the sale of the property results in the realization of more than the amount ordered to be paid by Mr. Vogler to Ms. Vogler, Ms. Vogler will pay such net excess amount over to him.

(7) There will be a non-depletion order regarding the Mississauga property pending the registration on title of the vesting order granted by this judgment.

(8) There will be an order vacating the non-depletion order imposed on Mr. Vogler by order of this Court on July 28, 2010, and Mr. Vogler shall no longer be obligated to maintain his life insurance policy as security for spousal and child support once the payments referred to in paragraphs (4) and (5) above have been paid, inclusive of post-judgment interest.

COSTS

[122] The last issue is costs. Ms. Vogler shall have two weeks from the release date of this judgment to serve and file her written submissions on costs. Mr. Vogler shall have two weeks from that date to serve and file his written submissions on costs. Ms. Vogler shall then have one week from that date to serve and file any reply she may think advisable.

M. Linhares de Sousa J.

Released: January 26, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SOPHEANY VOGLER

Applicant

– and –

RALPH KERSTEN VOGLER

Respondent

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Released: January 26, 2015