COURT FILE NO.: FS-10-069785-00
DATE: 20151005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN LAVIE
Applicant
– and –
TANYA LAVIE
Respondent
Kevin Lavie, in person
Christine Torry, for the Respondent
HEARD: October, 22, 23, 24, 25, 2013; November 27, 28, 29, 2013; September 8, 9, 10, 11, 2014; and October 10, 2014.
REASONS FOR JUDGMENT[^1]
coroza J.
I. Overview
[1] The Applicant, Kevin Lavie, and the Respondent, Tanya Lavie, began to live together in July of 1998 and they were married on July 21, 2000.[^2] They had purchased a home in July of 1999 and separated on June 5, 2009.
Matrimonial Home
[2] However, they continued to live together in the same home until Tanya moved out on October 15, 2009. Tanya borrowed money from her family to live in a home nearby. By living nearby, her intent was to facilitate an equal shared parenting arrangement.
[3] Kevin remained in the matrimonial home until it was sold in November 2009. The sale of the matrimonial home in November 2009 netted approximately $120,000, which has been held in trust by real estate lawyers.[^3] He then moved to his mother’s home.
Children of the Marriage
[4] Kevin and Tanya have two children, Lexa and Liam. Lexa was born October 27, 2001 and Liam was born on October 23, 2004.
[5] Since October 2009, Lexa and Liam have been residing with both parents. They spend alternating days and alternating weekends with each parent.
Tanya’s Income and Employment History
[6] Tanya worked as a teacher from 1998 until 2004. She left teaching after Liam was born. According to Tanya, the parties agreed that she would not return to her teaching career in order to for her to be more available to the children. Kevin disputes this assertion.
[7] In 2006 Tanya began operating a child play center called “Balls of Fun” (BOF). According to a report authored by Lorne Kirsch, an expert valuator, her personal income is roughly $15,000 per year. Tanya is the only shareholder of BOF. According to Mr. Kirsch, the value of her shares is $55,000.
Kevin’s Income and Employment History
[8] Kevin worked as an editor for a television sports show called “The Score” from 1996 to 2012. He was terminated in 2012 and obtained a severance in December of 2012. He spent most of his editing career (and most of his marriage) working nights, until September 2008. In September 2008 he began working days.
[9] Kevin’s income ranged from approximately $64,000 in 2009 to $140,000 in 2012.
Issues:
[10] Broadly speaking, the dispute between Kevin, the Applicant, and Tanya, the Respondent, relates to the following issues: (1) equalization and post separation claims for money; and (2) spousal and child support.
Positions of the Parties
a. Kevin’s Position
[11] Kevin is asking me to order that Tanya pay him over $117,000. He makes the following requests:
Tanya’s claim for child support and section 7 expenses retroactive to the date of separation should be dismissed;
Tanya should pay him child support for their two children onwards from May 1, 2013. In calculating child support, he requests that I impute income to him in the amount of $70,000 and impute income to Tanya in the amount of $79,471 ;
I should order both parties to contribute their proportionate share towards the children’s special and extraordinary expenses based on the imputed income calculated above;
Tanya should pay him an equalization payment fixed in the amount of
$64, 915.97;
- Tanya shall pay the him a post-separation adjustment fixed in the amount of
$52, 669.16; and
- Tanya’s claim for spousal or child support against him should be dismissed.
b. Tanya’s Position
[12] Tanya submits that Kevin’s claims should be dismissed. Tanya makes the following submissions:
Kevin should pay her retroactive child and spousal support;
Kevin should pay ongoing child and spousal support based on a salary in the amount of $70,000;
Tanya should only pay Kevin an equalization payment in the amount of $5,380.27;
Kevin should pay her $1440 as a post separation adjustment claim;
Kevin should contribute $100 per month to RESPs for both children
I should order the parties to share any health, medical, drug or dental costs not covered by any benefit plan available. In addition, I should order the parties to share in any significant additional costs for the children in excess of $100 such as computers, cell phones and driver’s education.
II. Equalization and Post-Separation Adjustment Claims
[13] Kevin submits that Tanya should make an equalization payment fixed in the amount of $64,915.97. Tanya submits that she should be ordered to pay $5,389.27.
[14] I am not persuaded by Kevin’s submissions and I agree with Tanya.
[15] In calculating the net family property (NFP) and the resulting equalization payment I have considered the value of each party’s NFP : 1) assets owned on valuation date; 2) general household items and vehicles; 3) bank accounts and savings, securities and pensions; 4) money owed to each party; 5) debt and other liabilities on valuation date.
[16] Ms. Torry on behalf of Tanya, filed a very helpful “Net Family Property Worksheet” as Exhibit 51. In that document, Ms. Torry set out the points of dispute between Tanya and Kevin.
[17] My decision on each point of dispute follows.
a. Matrimonial home: The advance payment of $12,610.50 to Kevin
[18] The matrimonial home was sold in November of 2009 for $310,000. At the time of the sale of the matrimonial home in November 2009, the liabilities of the parties, the legal fees associated with the sale, all registered encumbrances, and a joint CIBC credit card were paid off from the net proceeds. However, there was an advance payment made to Kevin for $12,610.50 on the closing date. Tanya testified that Kevin refused to turn over the keys to the realtor on the closing date of the home unless he received this money. Tanya testified that because the buyers of their home were waiting for the keys she consented to Kevin being paid in order to close the deal.
[19] Kevin takes the position that he was lawfully entitled to the advance payment because Tanya is solely responsible for the CIBC Visa debt.
[20] Tanya disagrees and takes the position that Kevin received an advance which should be treated as his asset when calculating his NFP.
[21] I agree with Tanya.
[22] I am persuaded after hearing the evidence that the CIBC card was used during the marriage and is a joint debt.
[23] It is not unusual for married couples to have one joint credit card that is used to pay for all of the expenses incurred by the family. The evidence from Tanya suggests that this was the case. This card was used throughout the marriage for the benefit of Kevin, Tanya and the children. Furthermore, when the parties were staging their home for sale, the credit card was used to purchase services to prepare for the sale. Kevin takes the position that he was not using the card when the home was being staged. However, I still find that any purchases made on the card for the purpose of getting the house ready for sale was for the benefit of the family.
[24] I am satisfied, after considering the evidence, that the CIBC card was a joint debt and the advance received by Kevin on closing should be characterized as Kevin’s asset to be factored into the equalization calculation.
b. The Value of Tanya’s 2006 Dodge Caravan
[25] In calculating the NFP of Tanya, I must take into account that Tanya owns and drives a Dodge Caravan. There is a dispute about the value of the van. Tanya claims that the van is worth $6,750. Kevin argues that the value of the van is $14,000.
[26] I find that the van is worth $6,750. I find this for the following two reasons.
[27] First, there was an explicit admission during the trial that the van was worth $6,750. During his cross-examination Kevin testified as to the value of the van. He acknowledged that the documentation found in his own exhibit brief suggested that the value was not $14,000:
Q. So would you agree that on your statement it should be $6,750? And we’ll accept that. And we can take that off the table.
KEVIN A. Okay. Let’s take it off the table.
Q. Okay. So the value for the Dodge Caravan we would agree is $6,750 at the date of separation for both sides? …. [Underlining added. Transcript, October 24, 2013 at p. 84]
[28] Second, I am not persuaded that there is evidence to the contrary. Kevin subsequently changed his mind and withdrew his admission. He attempted to introduce hearsay evidence to demonstrate that the van was worth $14,000. Kevin explained what his solicitors had told him. Ms. Torry objected and submitted that Kevin’s evidence was inadmissible hearsay.
[29] I agree. Generally speaking, an out-of-court statement (written or oral) tendered for the truth of its contents is hearsay and is presumptively inadmissible. Kevin’s evidence as to what his former solicitor told him about the value of the Dodge Caravan is hearsay and I will not rely on it. The prejudice in admitting the hearsay evidence is that the statement was not made under oath and there is no contemporaneous cross-examination. This is a contentious issue and it would be unfair for me to accept Kevin’s evidence.
c. The Value of BOF.
[30] In 2006 Tanya began operating BOF. Lorne Kirsch was qualified to give an expert opinion at this trial about the fair market value of the shares of BOF and to conduct an income analysis for Tanya. His report was filed and marked as Exhibit 8 - Tab 10(a) in these proceedings. I have reviewed the report.
[31] Kevin disputes Mr. Kirsch’s findings and argues that I ought to reject Mr. Kirsch’s evidence because he did not conduct a forensic audit. Kevin also argues that a shareholder’s loan that was referred to in the report was not properly credited to Tanya when valuating her business. I do not accept his argument for the following two reasons.
[32] First, Mr. Kirsch was an impressive witness and unshaken in cross-examination. Although he was testifying for Tanya, he appeared to me to be a fair witness who did not exaggerate or argue. He concluded that the value of BOF was $55,000. He explained that there are two primary ways to calculate the value of a company: the asset based approach and the earnings based approach. He used the earnings based approach. He explained why he used an earnings based approach and testified that when he analyzed BOF using both approaches, the earnings based approach gave him a higher price of $55,000. This struck me as a fair approach to take. Mr. Kirsch concluded that BOF had, for the most part, been operating at a loss depending on the year.
[33] Second, there is no evidence before me that contradicts Mr. Kirsch’s specific conclusion the value of BOF is $55,000. He was clear in his evidence that he included a shareholder’s loan in evaluating the business:
MS TORRY Q. You - I think you may have already answered this. You had said that you would come back to the issue of the shareholder loan, but then I asked you a bunch of questions. So the information you said you would come back to, has that already been addressed in your testimony?
MR. KIRSCH A. That issue for the - for fairly well the most part has been addressed when you asked me that question.
Q. That’s what I thought. So - so essentially your view is that - well, you’ve said it, 55,000 inclusive of the shareholder’s loan because there wasn’t enough equity essentially at the time to pay the shareholder’s loan out?
A. That is correct, plus as I had previously said, there wasn’t enough cash in the company to be able to pay...
Q. Okay.
A. ...part of the shareholder loan. At the valuation date there was about $22,000 in cash. However, the company needs to pay its rent. It needs to pay its employees. Rent is at the beginning of the month and it does have certain working capital requirements. Probably not that material, but it could be probably a thousand or two or three every month. I - I didn’t calculate working capital requirements. I figured they were fairly small. [Underlining added. Transcript, September 11, 2014 at p. 19]
[34] Kevin agreed in his own testimony that there was no evidence to dispute Mr. Kirsch’s conclusion:
MS. TORRY Q. And you agreed at the outset of this hearing that the value of the business - valuation of the business by Mr. Kirsch, of $55,000 for the shares, you agreed that that was - you had accepted that as the value of the business shares, is that correct?
KEVIN A. Yes.
Q. And what’s your position today?
A. I feel stuck.
Q. I beg your pardon?
A. I feel stuck.
Q. I’m asking you, what is your position today?
A. I don’t know how to answer that.
Q. I just need you to - need to understand, Mr. Lavie, are you withdrawing your agreement to that valuation being relied upon by the court? That’s all it is and we need to know...
A. I know.
Q. ...as this is the trial. So are you withdrawing that agreement?
A. Yes.
Q. And what are you asking the court to find the value of the business to be?
A. I don’t know.
Q. What evidence would you ask the court to rely upon in trying to find out what your position is?
A. I guess I don’t have any.
Q. So you’re saying there is no evidence in dispute of that valuation?
A. That’s correct. [Underlining added. Transcript, September 11, 2014 at p. 31]
[35] I conclude that Kevin’s view that BOF is worth more than $55,000 is not grounded in any of the evidence.
d. The Overpayment of a loan to Kevin’s mother.
[36] Kevin and Tanya borrowed money from Kevin’s mother (Rose) during the marriage. Tanya believes that this sum was paid back in full and there was an overpayment to Rose. Tanya believes that Kevin continued to make monthly payments in excess of the original debt. According to Tanya, Kevin refused to stop the automatic payments from their joint account to Rose.
[37] After reviewing the evidence, I accept that Rose was paid $30,652.50 and there was an overpayment of $10,652.50.
[38] From the records filed at trial, it appears that the loan was for $20,000 and it was paid back at $502.50 per month from October 16, 2003 until the joint account was closed on November of 2008.
[39] Kevin was very vague about the overpayment to his mother in his testimony:
MS. TORRY Q. In your cross-examination previously I had asked you a series of questions around the loan to your mother, Rosemary, do you recall that?
KEVIN A. Yes.
Q. And is it your evidence that - if I can just recall what you said, you agreed that there had been an overpayment, but that it was your belief that your mother was repaying Tanya, is that a fair summary of your position?
A. Yes.
Q. But you had no documentation or information to verify that, is that correct?
A. If I remember correctly there was - there was probably a cheque or two that was deposited into the joint bank account.
Q. When would that have been?
A. I don’t know. I don’t know.
Q. Well, can you - if I gave you the joint bank accounts which were submitted, could you find it?
A. Maybe.
Q. So in applicant’s Exhibit Brief Volume 1, Tab 5A - sorry, 5B - nope, they only go to 2005. So you don’t know when those deposits would have been made, is that - let me just see if I can find that exhibit, Your Honour. Do you know how much those deposits would have been for?
A. No.
Q. Pardon?
A. No.
Q. So do you dispute the amount of overpayment that Tanya’s claiming?
A. I am being told that this has all been dealt with.
Q. Who told you?
A. My own mother.
Q. So she just said it was being dealt with, but you don’t have any documentation, you don’t know how it was being dealt with? Were you asked to stop the automatic payments from the joint account?
A. Yes.
Q. And why didn’t you do that?
A. I insisted that Tanya could do it.
Q. And she said she tried and couldn’t and you still refused to, is that correct?
A. More than refusing, it was always a question of time.
Q. You had online banking, correct?
A. No.
Q. You had a telephone, correct?
A. Yes.
Q. So what time would you need to do that with? How long would it take to call the bank and cancel an automatic payment that’s made on the account?
A. I’ve never done telephone banking myself - well, as was mentioned in - I don’t know if it was Tanya or myself, as it was mentioned, we tried - I tried telephone banking once and that was it.
Q. All right. So when you say there was never enough time to stop the payment to your mother, how long would - do you think it would have taken you to go to the bank and stop that payment?
A. I don’t know.
Q. And why didn’t you?
A. There just - well, I wasn’t concerned, first off, that my mother was going to be stealing money from us. So I didn’t see the pressing need, and as far as I’m concerned she hasn’t stolen money from us.
Q. When would the loan have been paid off, Mr. Lavie?
A. Which loan?
Q. To your mother?
A. I don’t know.
Q. When would it have been paid off?
A. I’m not sure.
Q. How much was it for?
A. I’m not sure.
Q. When was it obtained?
A. I’m going to say 2006.
Q. And you don’t recall the amount of money that it was for?
A. I’m not sure.
Q. Well, do you have a guess? [Underlining added. Transcript, October 24, 2013 at pp. 84-86]
[40] In my view, the above passages suggest that Kevin did not care whether there was an overpayment to his mother of the loan. At best this was indifference, at worst this was deliberate.
[41] In the evidence that Tanya provided to the Court, I am persuaded that there was an overpayment of the loan to his mother. I specifically find that Rose loaned out $20,000 and it was paid back at the rate of $502.50 per month. I find that the loan was first paid on October 16, 2003 and was paid until November of 2008 when the account was closed. I find the payments were made over a total of about 61 months and that the overpayment was in the amount of $10,652.50.
[42] I acknowledge that Tanya was a poor historian in relaying the terms of this loan and any discussion with Rose about the repayment of the loan. However, when I look at the filed documents and consider the fact that Kevin was in the best position to know about the overpayment from his own mother, I prefer Tanya’s evidence over Kevin’s.
e. The Shareholder’s Loan to BOF
[43] In calculating the NFP, I must take into account any money owed to each of the parties. As I have already stated, Kevin takes the position that a BOF shareholder’s loan remains outstanding to Tanya and that it was not properly taken into account by Mr. Kirsch when he evaluated the business. He takes issue with Mr. Kirsch’s findings.
[44] I have dealt with that argument above and pointed out that Mr. Kirsch’s evidence has gone unchallenged and that there is no evidence to the contrary.
[45] Mr. Kirsch testified that at the time of the separation there was effectively no money in the company to pay the shareholder’s loan and therefore this is not an asset to Tanya.
[46] Ms. Torry’s submission is that this loan was unrecoverable at the date of separation. This submission is fully supported by Mr. Kirsch’s evidence which is set out below:
MR. KIRSCH A. At that time the balance sheet of Balls of Fun is fairly straight forward and simple. There’s cash, there’s capital assets, there’s a little bit of accounts payable and there’s a bank loan and a shareholder loan. So on the left side I show the balance sheet at May 31st, ‘09, which is around the valuation date. Then on the right side I indicate what would be left over if we liquidated the company.
So I’ve got cash, which I valued fully at around $23,000, and I have capital assets, some of them of which would have zero value. Lease hold improvements, the sign would have no value. The incorporating cost would have no value. The equipment and the computer, the equipment I estimated it would probably have a - a value of about 25 percent of netbook value. Within the company there’s balls, there’s a ball pit, there’s slides, there’s some climbing stuff for children, et cetera. The value that I put on the equipment is about $25,000 for a net of around $47,000 in assets.
There’s accounts payable of about $5,000. That would leave me about $42,000 to be able to pay back the loan to the bank. If I take out some other costs like severance to employees and maybe some bank fees of - that would total about $18,000, I end up with about $24,000. The bank loan at that time 165. There would be a shortfall in Balls of Fun of about 142,000. Now, that’s not a negative value. In fact I’d be sitting here saying if there was a deficiency of a 142,000, the value on the common shares is zero because you can walk away from that if you had to assuming all your other director debts were paid like HST or GST at the time, your deductions – et cetera. So that 141 is a zero value. However....
MS. TORRY: Q. Well, and - okay. Just before you go there, I assume though that the $42,000 that was left, you couldn’t walk - you couldn’t take that out and then walk away?
A. The bank has first call on that money.
Q. So....
A. Actually the bank or the - or the lease company.
Q. So whatever was there, the lease company or the bank would take and so - but you’d end up with zero because it’s an incorporated company and...
A. Correct...
Q. ...it would cost....
A. ...and you would not be able to pull out your shareholder loan.
Q. All right.
A. There is insufficient cash to do it.
Q. Sorry....
A. My main reason - my main reason for not using the asset based approach even though I could say that the - the class A shares themselves are worth zero, is Ms. Lavie has guaranteed personally the lease as well as the bank debt. Now, the lease runs from, at that time let’s say, July 1st, ’09, to September 30th, 2011, is when the lease comes due. You - you wouldn’t renew if - like she wouldn’t renew if she was out of business. That’s 27 months, according to the lease, you’re on the hook. You’re liable to pay those 27 months. The reality is they’re going to find a renter for that place.
So in my calculations here I estimated that there would be about 10 more months that she’d have to pay. The bank would want a little bit of time to bring in a receiver, sell off the goods. It would take quite a few months to rent that type of facility. I subtracted out the rental deposit because when Ms. Lavie entered into the lease she did give them a rental deposit, which they would apply towards what she owed them.
And then I took a look at the small business loan. The small business loan indicates that Ms. Lavie would be responsible personally for 25 percent of the original amount of the loan, which on the papers indicate that its $250,000, 25 percent of 250,000 is about $62,500. If I total up those two items I get $115,000. The shareholder loan, which you couldn’t take out anyway because the company doesn’t have sufficient cash, but the shareholder loan is $93,000. There would still be a personal deficit that she’d have to pay of about $22,000. [Underlining added. Transcript, September 10, 2014 at pp. 12-13]
[47] Given Mr. Kirsch’s testimony, it is my conclusion that the BOF shareholder’s loan was properly taken into account by Mr. Kirsch when he evaluated the business. I accept the submission that the value of BOF for the purpose of determining the equalization calculation is $55,000.
f. The Loans of $20,000 from Tanya’s family
[48] Tanya claims that she has debts of $20,000 owed to her father Joseph Pidhurskyj and her aunt Jacqueline Burke. Kevin asserts that these are gifts not loans.
[49] Mr. Pidhurskyj advanced some funds to Tanya in November of 2008 to pay for outstanding bills. He advanced Tanya about $10,000.00. Tanya testified that her aunt, Ms. Burke also advanced them money for a car loan during the marriage. Tanya testified that her aunt is unhappy that she has provided a loan for a car that Kevin drives.
[50] Tanya has characterized these as debts because they were advanced prior to the date of separation. Tanya has testified that she intends to pay her family back.
[51] Mr. Pidhurskyj testified. I found him to be a credible witness. He explained that the money he advanced was a loan and not a gift. Mr. Pidhursky put it this way in examination in chief:
MS. TORRY Q. Okay. And what was the nature of that money and what you understood was your intent with respect to them - those funds?
MR. PIDHURSKYJ A. Just - I expect Tanya to pay - pay me eventually. Like, you know, like, I don't give her any gifts, and she won't take any gifts. She has the moral sense to pay me back any monies that I give her.
Q. And has there been any monies paid back on that?
A. No, not at the present time.
Q. And were there any timelines for the payback?
A. There's no timeline for it. [Underlining added. Transcript, October 25, 2013 at p. 74]
[52] He was unshaken about this assertion during cross-examination:
KEVIN Q. Okay. You said that knowing Tanya, you knew she wouldn't accept any gifts from you and that she would eventually pay you back?
MR. PIDHURSKYJ A. That's correct.
Q. Has she never accepted a gift from you before that?
A. Christmas time.
Q. What kind of gifts would she get from you?
A. Anything she wanted at Christmas. Like, I - I would ask her what - what her needs would be.
Q. Right. And they were what kind of items?
A. Last Christmas she asked for a gift certificate from Winners to buy clothes.
Q. And - and when she was younger?
Q. So, Mr. Pidhurskyj, you just referred to last Christmas, which would've been last year, and throughout the marriage had she asked you for - had you given her gifts? Throughout our marriage, sorry, had she - had you given her any other kinds of gifts that you can recall?
A. I'm sure I have given her gifts during Christmas and her birthdays, but I do not know specifically what they are, I can't recall.
Q. What gave you the impression that Tanya would never accept a gift from you then?
A. How can I explain this? I raised my daughter to be a - to have a moral compass and to get through on her own as much as possible. Like I - I will be there to help her because I am a father, but - but I've always told her to be aware of what - what - what you have, to – like not to overextend yourself if possible. [Underling added. Transcript, October 25, 2013 at p.87 to 88]
[53] Tanya was also unshaken in cross examination that the money advanced by her aunt was a loan and not a gift:
KEVIN Q. Had you ever borrowed money from - from your Aunt Jackie before that?
TANYA A. Not that I can remember, no. I can't imagine why I'd borrow money from her.
Q. Well, and you - and you just claimed that this was most definitely a loan from your aunt and not a gift?
A. Yeah, I...
Q. And she's a....
A. ...talked to her about it over the years and she keeps - and she has constantly asked me when she'll ever see that money and with the process that we've been going through, it's been very hard to even cough up any of that and it's anger - it does provide me some anger with the fact that I know that I'll be the one paying that money back with you driving the car. It is a very frustrating reality.
Q. Okay. And you're claiming she is very upset about it, correct?
A. I won't say that she's crying in a fetal position, but she does ask me enough to make me think about it.
Q. And there was never any kind of contract signed or any kind of payment reschedule made with your aunt, is that correct?
A. That is true. I will be always making contracts from now on though. [Underlining added. Transcript, November 27, pp. 78-79]
[54] I specifically find that Tanya owed $20,000 to her father and aunt. This amount will be factored into the equalization calculation as a value of a debt on the valuation date. I do not accept Kevin’s argument that this was a gift.
g. The Enbridge Bill
[55] Tanya claims that she incurred a debt for an Enbridge Gas Bill in the amount of $237.50 dated February 8, 2010. The evidence is that Tanya had moved out of the matrimonial home on October 15, 2009. Kevin was in the house until November of 2009. Kevin argues that he had a verbal agreement with Tanya that he would pay the mortgage for the house and Tanya would continue to pay for bills such as hydro and gas. He submits that this should not be treated as a debt because she voluntarily paid this amount.
[56] I do not accept that this was an agreement that was made between them. I am not satisfied that Tanya agreed to pay these fluctuating bills when she left the house. It would make very little sense for Tanya to agree to incur expenses for the house while she was not living there.
[57] With respect to both Kevin and Tanya, when I consider the entire context of their relationship, the parties were not capable of effectively communicating effectively when it came to financial matters. I prefer Tanya’s evidence on this point:
KEVIN Q. And the house sold. We - we - the house sold in October – the matrimonial home sold in October – sorry, I thought it was specified in our agreed - but it sold in October, correct?
TANYA A. Yes.
Q. Late October and closed officially in November. So I'm bringing this up because in relation to this Enbridge bill that we were discussing.
A. Yes, but the house was already sold with that Enbridge bill. Like, the Enbridge bill that we're talking about, the house has already been sold.
Q. I don't believe that's clear, but I - I do want to bring your attention to the middle of the first page here.
A. Yeah.
Q. It says “Leave the air on, but the lights are not necessary”. But they did want us to have the lights left on often.
A. Sure, but it doesn't say leave the air on and open the windows.
Q. Okay. I'm not saying it does. And - and the second page that I've attached isn't - it's - it's just from another showing that we were preparing for and you had left me that as well, saying, “Leave on the lights and air”?
A. Correct.
Q. I'm just pointing that out because you're implying that I was purposely leaving the lights on and - and the air conditioning on, and I'm not sure if you specified that was happening 24 hours a day. I don't think you did because you did say that you would come - you would come to the house every now and then and notice that, is that correct?
A. Correct.
Q. So you're not stating that it was happening 24 hours a day, correct?
A. Correct. I'm just stating that the bill would conclude that it was done often.
Q. Okay.
A. And the argument is only for, like, half the bill, Kevin, too. Split that half of the bill that I was not physically in the house for. It was not a big – like, really, it's not a big deal in the scheme of things. It's just the reality that it was being done. That it was a bill that I was not even in the house for. [Underlining added, Transcript. November 28, 2014, p. 4]
[58] Given all of the above, I find that the Enbridge debt was a debt to Tanya. It will be factored into the equalization calculation.
h. The Child Canada Tax Benefit
[59] Tanya testified that once she left the matrimonial home she informed the government that she was living at a different address. She testified that she then made inquiries about how to collect child support. She testified CRA took the position that she owed $2,649.08 to CRA. She paid this. She testified this was a debt incurred before the separation of 2009. The demand letter from CRA is reflected in Exhibit 24.
[60] Kevin agreed that the money owed to CRA was debt owed at the date of separation:
MS. TORRY Q. Mr. Lavie, subject to us - the examination of Ms. Lavie on this issue, are you aware whether or not there was income tax arrears that Ms. Lavie got reassessed for that were due in - that were attributable to the 2008 tax year? There isn't documentation...
KEVIN A. Yes.
Q. ...with you, but were you aware that she owed taxes for 2008?
A. Yes.
Q. Okay. And so subject to us providing the statement, would you agree that if she - they were for taxes for 2008 that arose later, that 2008 pre-dates the separation, and as a result that would be a debt at the date of separation?
A. That would be a debt at the - that existed before the date of separation?
Q. Yes.
A. Yes.
Q. So subject to our providing that documentation, you would agree that that is a debt?
A. Okay.
Q. Thank you.
[Underlining added. Transcript. October 24, 2013, at p. 125]
[61] In light of Kevin’s concession, this amount will be factored into the equalization calculation.
i. Kevin’s claim that the Joint Line of Credit is a personal debt.
[62] Kevin claims that the joint line of credit, approximately $93,873.31 that the couple took out when they were married, is a personal debt to Tanya. Kevin submits that the joint line of credit was used solely for BOF. I found Kevin to be arguing that Tanya is both a lender and borrower. According to Kevin, Tanya will be able to keep paying herself money back since she is the only shareholder of the company.
[63] Ultimately, he is asking me to find that the couple invested this money into the business. He submits that the value of her interest is this money and he seeks about half of that amount as part of the equalization. I dismiss his claim because I do not see any foundation for it.
[64] I have the evidence of Mr. Kirsch which I have reviewed above. There is no evidence to support Kevin’s claim. The evidence before me is that this joint line of credit was used to invest in the business and at the time of separation in 2009, the parties were not necessarily going to recover that money because the business had not been successful at that point. Having reviewed the evidence of Mr. Kirsch and BOF’s accountant, Mr. Rosati, it is evident to me that BOF had not developed to the point where it was going to return any significant capital worth at the time of separation in 2009. Considering this evidence, I find that BOF will not return any significant capital worth in the near future.
[65] While the business has not generated a significant profit sufficient to return the initial investment, this is not a reason to assign this joint debt solely to Tanya. I have concluded that the joint line of credit $93, 873.31 is a joint debt to be factored into the equalization calculation. Each party has a liability of $46, 936.66 attributed to them.
j. Kevin’s Claim for Late Filing with CRA
Kevin submits that the tax liability he incurred for late filing returns in 2013 for the taxation years of 2010, 2011 and 2012 should be repaid back to him by Tanya.
[66] Tanya claims that this tax liability should be characterized as a debt to her and that this claim should be dismissed.
[67] Kevin claims that he wanted to claim Liam for child benefits but he received no response or cooperation from Tanya in doing this. Tanya’s position is that Kevin could have easily filled out the paperwork to claim Liam and Kevin’s inertia is what led to the incurring of late fees.
[68] I dismiss this claim. I believe this disputed amount is typical of the problems that both Kevin and Tanya had with respect to communicating financial information. Tanya was cross examined extensively as to whether she ever responded to emails he sent to her trying to resolve this issue. She did not recall responding to all emails but Tanya asserted that they talked about this issue and her position was made very clear to Kevin.
[69] In any event, the tax liability incurred by Kevin was solely a result of his deliberate choice not to file his taxes on time. Kevin is an intelligent and articulate person. I do not understand why he did not file his income tax return without claiming Liam and then proceed to raise this issue at trial. The fact of the matter is that Tanya told Kevin to deal with it. Kevin unilaterally filed late. In those circumstances, I do not find his argument for arrears compelling.
k. Tanya’s Claim for Car Insurance
[70] Tanya claims $1440 for her payment of Kevin’s car insurance for 12 months after their separation. It is not disputed that Kevin had exclusive possession to and benefit from the car from June 2009 until June 2010.
[71] Kevin’s argument is that the parties agreed that Kevin would pay the mortgage on the home and that Tanya would pay all other household expenses. I have already made a finding that these parties did not communicate very well with regards to their finances and I doubt very much that they agreed on anything. Kevin is ordered to reimburse Tanya for the car insurance.
l. Conclusion on Equalization and post-separation adjustment payments
[72] Based on the above findings of fact, I must now determine the NFP for each party and determine equalization.
[73] Section 4(1) of the Family Law Act (the Act)[^4] defines NFP as the “value of all property (except excluded property) owned by a spouse on the valuation date (net of debts and liabilities) less the net value of property, other than a matrimonial home, owned by a spouse on the date of marriage”[^5]. Pursuant to s. 5 of the Act, the spouse whose NFP is the lesser of the two net family properties is entitled to one-half of the difference between the NFP amounts.
[74] I have determined that Tanya owes Kevin money in the equalization process. Accordingly, for the above noted reasons I find that Tanya should make an equalization payment to Kevin fixed in the amount of $5,380.27.[^6]
[75] With respect to post-separation adjustment payments, Kevin should repay the sum of $1,444.00 for her payment of the car insurance.
[76] I dismiss Kevin’s claim that Tanya should pay him an equalization payment of $64,915.97. I also dismiss Kevin’s claim that Tanya should pay him post-separation adjustments fixed in the amount of $52,669.16.
III. Claims for Support
[77] Kevin and Tanya take different positions as to child and spousal support. I must address the following issues when I consider their claims:
What are the parties’ incomes for support purposes?
Should there be an order for ongoing and retroactive child support?
Should there be an order for ongoing and retroactive spousal support?
a. Determining Income for Child Support and Spousal Support
[78] Income for child and spousal support purposes is determined the same way. Income is based on gross pre-tax income. Thus, income for support purposes is presumptively the payor’s income as it appears on line 150 of last year’s tax return. The way in which support income is determined restricts the definition of presumptive income to income that is subject to taxation. In this way, a payor’s income can be easily ascertained by reference to the payor’s income tax return.[^7] One of the assumptions is that income is relatively constant year to year.
[79] Under the Child Support Guidelines (CSG)[^8], the Court requires three years of past income tax returns.
b. Kevin’s Income
[80] I have examined Kevin’s financial statement filed as Exhibit 6. I have also examined Kevin’s income tax returns for 2009, 2010, 2011 and 2012. The following table reflects Kevin’s income from 2009 to 2012.
| Year | Income as reported on Line 150 |
|---|---|
| 2009 | $63, 878 |
| 2010 | $65, 406 |
| 2011 | $67,908 |
| 2012 | $149, 553 |
[81] During his testimony, Kevin explained why his income fluctuated between 2011 and 2012. According to Kevin’s, he was terminated from his job as an editor in 2012 and received a severance payment in December of 2012. His shares with his previous employer were cashed out. Kevin submits that I should take this into account when I calculate his 2012 income. Kevin put it this way:
KEVIN: However, I again feel my - my situation needs to be distinguished from perhaps why the law was made. I only discovered the capital gains when my 2012 notice of assessment showed I had a very large amount owing. I only discovered the 2012 notices of assessment late in 2013, as that was when I went and filed everything in preparation for trial. This is my 2010, 2011, 2012 notice of assessment tax years.
This share - employee share purchase plan that I was a part of allowed me to contribute five percent of my salary, which the network, the company would match. It was the only form of pension that I could take part of and it would have been very foolish, in my opinion, not to find a way to take advantage of it. So during the three post-separation years until my termination, five per cent of my salary, I would've contributed approximately 9,500 to the plan.
When the shares sold and, again, I - I will refer to tab three of the application exhibit - applicant's exhibit briefs, when - when the - when the - when the Rogers took over The Score, the shares almost doubled. And when the - when Rogers took over The Score, the shares, everybody's shares, were cashed out. I had no control over the situation and clearly I wouldn't have cashed out that kind of money in my possession, as I could not afford the tax hit that I would receive, which I'm now owing $7,620 for my 2012 tax year.
This was money that I was hoping to save for the future and if anything – if I had the choice in the matter I - I would've - I would've staggered it in some way to lesson some kind of burden on the - the tax hit. [Underlining Added. Transcript, October 23, 2013 at p. 41]
[82] In short, Kevin claims that he received the cash out of the shares as a one-time payment and that it is non-recurring. There is ample authority that supports Kevin’s submission that “non-recurring” income such as RSP or pension withdrawals should be excluded from the calculation of a payor’s line 150 income for child support purposes.[^9] Ms. Torry candidly acknowledged that the case law relied on by Kevin was correct.[^10]
[83] In my view, it would not be a fair determination of income to include these capital gains when calculating support. Therefore, his income for 2012 includes only employment income of $ 27,217 as reflected in Exhibit 6 (Kevin’s CRA Notice of Assessments) and other employment income of $50,706 as reflected in Exhibit 10 (Kevin’s Exhibits for Trial), for income of $77, 923.
[84] What is Kevin’s income from 2012 onwards? I find that Kevin’s income from 2012 onwards is $70,000.
[85] Section 17 of the CSG sets out the following:
- (1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
[86] Kevin acknowledged that he has set out in his orders sought at trial (Exhibit 3) that the court should attribute an income to him of $70,000 on a go forward basis. He confirmed this on October 24, 2013 when he first testified and was cross-examined by Ms. Torry:
MS. TORRY Q. So in your Exhibit 3, the orders sought at trial by you...
KEVIN A. Mm-hmm.
Q. ...you indicate at paragraph five that you are seeking an order that income be inputted to Tanya, but also that income be inputted to you at $70,000 - sorry, paragraph four, $70,000 per year. So is that what you're asking this court to do?
A. Yes. [Underlining added. Transcript. October 24, 2013 at p. 58]
[87] Kevin then repeated this again on September 11, 2014 when I allowed Kevin testify for a second time to address some outstanding issues in his testimony. The following exchange took place between him and Ms. Torry:
MS. TORRY Q. Mr. Lavie, just to confirm, to make sure I understand, on that last point then, you are agreeable that for the purposes of ongoing support that the judge finds that you have an imputed income of $70,000 per year, is that correct?
KEVIN A. I - yes.
Q. Okay.
A. I think so. [Underlining added. Transcript. September 11, 2014 at p. 30]
[88] Kevin is currently unemployed and has been looking for work in the field. I have reviewed some of the correspondence exchanged between him and potential employers. I do not make a finding that he is intentionally unemployed or underemployed. However, having regard to s. 17 of the CSG and the submissions of Kevin, I find that Kevin’s income is $70,000 for 2013 and on an ongoing basis.
[89] I will deal with the uncertainty about his job situation below.
c. Tanya’s Income
[90] Kevin argues that Tanya’s income should be imputed to $79, 471.
[91] The principles that apply in determining whether to impute income are the same in both child support and spousal support cases. Section 19(1) of the CSG provides the Court with the discretion to adjust the presumptive amount of income for a payor parent in order to capture cases in which fairness requires an adjustment to income.
[92] In this case, Kevin bears the onus in demonstrating that Tanya’s income should be imputed.
[93] I have reviewed the leading case from our Court of Appeal on this point.[^11] The Court of Appeal has held that the following three questions must be answered when imputing income:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by needs of a child of the marriage or any child under the age of majority or by reasonable educational or health needs of spouse?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[94] The Court of Appeal also ruled that there is no need to find a specific intent to evade child support obligations before income can be imputed. The court held that imputing income is one method by which the court gives effect to joint and ongoing obligations of parents to support their children. In order for parents to meet the legal obligation to support their children, parents must earn what they are capable of earning.
[95] Thus, the first question is whether I can make a finding that Tanya is in fact intentionally under-employed. This is not a situation where Tanya quit a job and is looking for support because she found new employment after separation. This is a case where prior to the separation, she had been operating BOF, since November, 2006. The business has struggled and the parties separated in 2009. She is still operating the business.
[96] Kevin has taken the position that Tanya should go back to teaching and that he did not support the opening of this business. However, I am not persuaded by that argument when I review the evidence. I think the true state of affairs was poignantly outlined by Kevin in his closing submission :
KEVIN The significance of the business is still very important in my life and to this case. It’s not just another property that needs to be divided. This business represents critical sacrifices and investments. It was about goals and dreams, plans for the future for the rest of our days. We were willing to take a risk to have - we were willing to take a risk....
We were willing to take a risk to have a whole new life, a better life – I don’t know if I can do this. It wasn’t just our careers which were going to change. It would be a new commitment to our marriage as now two ships passing in the night for so many years were finally going to be teammates and working together, which was supposed to be a newer and better future for the family as whole. I don’t think I can do this, Your Honour. [Underlining added. Transcript, October 10, 2014 at p. 19]
[97] I find that the opening of BOF was really for the purpose of improving their family life. I acknowledge the parties have separated. However, the choice of running the business and the advantage of doing that still continues because after the separation, Tanya still needed to continue in a job that is flexible. She has the children half the time. Tanya put it this way:
KEVIN Q. Have you looked at other job opportunities?
TANYA A. No.
Q. Why not?
A. Because I have felt committed to Balls of Fun. I do believe – I have between 10 and 15 employees. It allows me to be flexible for the kids. It is a struggle financially. I've always struggled financially even as a little person with my family. I'm from a divorce situation. My mom struggled and I guess I'm just used to struggling, but it doesn't seem overwhelming as much as it might for somebody else.
[Underlining added. Transcript, October 25, 2013 p. 36]
[98] Section 19 is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in evidence.
[99] Since, I find that Tanya is not intentionally under-employed this ends the inquiry under s. 19 and I do not impute income.
[100] What then is Tanya’s income? The evidence that is before me is the report of Mr. Kirsch who provided an income valuation. He testified on September 11, 2014:
MR. KIRSCH A. We were asked to determine, or calculate the income of Ms. Lavie for the year end of 2009 as well as some type of estimate of what she might earn in 2010. So in that regard, as per Schedule One, we reviewed her tax return. We took a look at the general ledger and on her tax return she made income from 2008 to 2010 of $5,400 in 2008, 5,700 in 2009, 5,800 in 2010. In discussions with Ms. Lavie and going through the books and records of the company, we found some personal benefits that she derives from Balls of Fun, the company. And if we go to Schedule Two I have a calculation of those personal benefits.
MS. TORRY: Q. And if I just might stop for a sec. So personal...
A. Mm-hmm.
Q. ...benefits are effectively items that are paid through the company that have - are deductible as expenses for the business, but have a personal aspect to it, so that – for example, I think you’re dealing with a car. So if the car is deduced as a business expense, but she drives it every day. So it’s a personal benefit to her?
A. Correct. And might I had, on occasion those personal benefits are part of a package of somebody that works in a company.
Q. Sorry, they’re part of the package of....
A. Part of their salary package.
Q. Part of salary.
A. It’s not uncommon.
Q. Okay. Continue. Sorry.
A. The two expenses that we found in going through the books is one, she’s provided with an automobile and the lease payments are $6,100 a year. There’s gasoline that I estimated. How I estimated them was I looked at three months of bank statements and I extrapolated for the entire year. I came out with about $1,500 of gasoline expense. If you total that up, it ends up being $7,600 per year for the automobile.
I estimated that a business portion would be a conservative 25 percent. So I deducted that amount and I came out with about $5,700 a year for the automobile. She’s also provided with a cellphone that the company pays for. And I actually reviewed the cellphone bills, I believe, and in 2008 to 2009 her cellphone expenses were about $1,300 in 2008, $1,400 in 2009, $1,400 in 2010. I added the automobile expense personal portion to the cellphone bill and my total was roughly about $7,000 per year in every year. Now, because the company pays for those expenses, we gross them up for tax purposes as if the person were really paying for them in after tax dollars. Ms. Lavie tax rate that I used in these calculations was 21 percent. Because her income is relatively low I used a lower tax rate than the highest tax rate available. And we determined taxes would be about $1,900 every year.
When you add those items together you end up with $8,900 in 2008, $9,000 in 2009 and about $9,100 in 2010. I add those items to what her line 150 income is on her tax return and for 2008 to 2010 her pre-tax income is about $14,000, $15,000 and $15,000. I did not include any income for Balls of Fun because Balls of Fun, if you leave in the amortization or depreciation, has a loss. So I didn’t deduct the loss from her income, wouldn’t be appropriate I believe in these circumstances. But there is no income to be derived from Balls of Fun that should be added to her income for these purposes. I determined a three year average of those three years to be about $14,600, and the income in 2010 to be about $14,900. I concluded that her income for the foreseeable future, or her income in 2010 and in 2009, if I round it, is $15,000 a year. [Underlining added. Transcript, September 10, 2014 at pp. 22-24]
[101] Mr. Rosati testified that BOF was running a loss in 2009, but in 2010 it made a profit of $10,000; in 2011 it made a profit of $11,000; in 2012 it made a profit of $22,000 and in 2013 it made a profit of $13,000.
[102] Ms. Torry then asked Mr. Rosati what salary Tanya could afford to take as the proprietor of BOF moving forward from 2014:
MS. TORRY Q. Okay. And from your knowledge of the revenue and expenses of the company, would it be your view that she could take more than $12,000 in salary? And if she did, what would be the impact on the company? And you may not have an opinion, I don’t know.
MR. ROSATI A. I think she could go up to $20,000 without - without - her concern was the cash flow for the company, but I think she can go up to $20,000 salary without it impacting the company cash flow wise.
Q. Okay.
A. Now, in 2014.
Q. In - now?
A. Yeah, in 2014 and that’s....
Q. Assuming - assuming that because I - I - I would assume that your - based on that is – and again, please correct me if I’m wrong, but her revenues are being fairly consistent and it appears that her expenses are now - have also been fairly consistent within...
A. Yeah.
Q. ...a range. Like, you’re talking 295, 299, 296, 290 for revenue and expenses are 285, 288 they did go down...
A. Yeah, assuming - assuming - assuming her 2014 is in line - is in line with 2013, yes. Correct. [Underlining added. Transcript, September 14, 2014 at pp. 134 to 135]
[103] One of Kevin’s arguments is that Tanya had money prior to the separation that she could have taken out of BOF. He argues that there is more money in BOF than is disclosed and that I should ignore Mr. Kirsch’s and Mr. Rosati’s evidence.
[104] He argues that the evidence of Mr. Rosati and Mr. Kirsch should be viewed with some skepticism because they rely on Tanya’s self-reporting. Kevin also argues that Mr. Kirsch’s report was not a full forensic audit.
[105] There is no merit to this submission. When I examine the financial statements of BOF as well as consider the evidence of Mr. Kirsch and Mr. Rosati, Tanya is simply removing the complete profit from the company in order to make ends meet. To the effect that Kevin’s submission is that there is some sort of windfall or hidden money, I cannot make that finding on the evidence.
[106] With respect to the argument that a full forensic auditing of the corporation was required, I accept Mr. Kirsch’s evidence on this point:
KEVIN Q. And your valuation approach, correct me if I’m wrong, from my understanding in your scope of - of - of review, didn’t require verification or validation of the numbers as well either, did it?
MR. KIRSCH A. If you’re referring to a forensic accounting of the numbers, no.
Q. Right. Now, forensic accounting, can you explain them for us?
A. I could, I’ve done them. A forensic accounting would be taking all the base receipts and reconstructing a set of books and records and then reconstructing the financial statements.
Q. Right. But in the preparation of this valuation you - you weren’t required to do any forensic audit, correct?
A. I was not required to do a forensic audit. It’s a lot of time and it’s extremely expensive.
Q. Right.
A. And I don’t believe there was any point to doing it.
Q. You don’t believe there was any point to doing it?
A. I don’t believe so.
Q. Can I ask you, Mr. Kirsch, when would it be required to do forensic auditing?
A. The first thing that I could think of is if there’s an idea that there’s a theft in the company, the books don’t look right.
Q. Right. So when preparing a valuation, a certified business evaluator will use these financial statements that have been prepared by that company’s accounting department, correct?
A. Mr. Rosati was an independent accountant.
Q. Okay. But he was the company’s accountant?
A. He was.
Q. And he prepared Balls of Fun’s financial statements?
A. He did.
Q. So as a CVV, when you are estimating the value of a company you have the financial statements prepared by that company’s accountant to work with, correct?
A. We do.
Q. Right. So you just stated to us that one reason to do forensic auditing is if there’s belief that there is theft?
A. Amongst other reasons. Go - go ahead.
Q. So if I were to suggest to you, Mr. Kirsch, that the only reason for forensic accounting is when there is belief that the financial statements should not be relied upon?
A. I’m not sure I understand.
Q. Would you need to do forensic auditing if you believed the financial statements were accurate and - and - and honestly performed?
A. Honestly prepared.
Q. Prepared, yes.
A. By Mr. Rosati or are you talking in general?
Q. Generally.
A. General. Sorry, you mean if we looked at the statements and we thought that they were prepared reasonably.
Q. Okay. Sorry, Mr. Kirsch, I - I’m realizing I should have rephrased that better. If I were to suggest to you that the only reason for forensic accounting was that the financial - the prepared financial statements could not be trusted in some way, shape or form, would that be correct?
A. I can’t say it’s the only reason.
Q. Okay.
A. I can say that it is a - a reason.
Q. Okay. Now, from an investigative point of view, how do you determine - I know you weren’t required to do any investigation on this, but how would you determine if that is necessary?
A. First of all, we did review the financial statements for those five years.
Q. Yes.
A. I’ve been a - I’ve been in the accounting profession before I was a CVV and I worked in public practice at a - at a sizeable midsized firm. I have a lot of experience with looking at financial statements. To some extent it becomes - we do review the financial statements that we look at. If anything - sorry, for lack of a better term, if anything looks like it smells, and I can give you some examples, we do get on the phone with the accountant and we question him on those issues. When I look at these financial statements, it’s a very simple set of financial statements. In other words, if I look at the balance sheet, for example, I’ve got cash. Mr. Rosati does a bank reconciliation and he balances his cash for books with his cash for bank. I’m pretty sure the cash balance is okay. The capital assets, I see the assets rolling in and then I see them being depreciated for I think it’s three years. He stated a depreciation policy. I would say the capital assets are fairly stated it appeared to me. I’ve got no bank indebtedness. I have an incorporation cost of $764. No, I didn’t go back to the actual receipt for the 764, but that’s a reasonable amount to incorporate a company, that’s a reasonable cost. Accounts payable of about $5,000, nothing unusual. It’s - it’s a decent amount, there’s nothing strange about it for this size of business. The bank loan is the bank loan, it works. The share capital of $100 was taken out and the retained earnings is merely the losses of the company added up for three years. It works. The balance sheet works. There doesn’t appear to be anything unusual about it.
If I thought there was something unusual, and I have seen unusual things in financial statements, I’d question it. These statements, even though they’re notice to reader statements, it appears that they were done reasonably. I place reliance on the accountant who does those statements. If the balance sheet works, usually the income statement works because the culmination of the income statement flows into the balance sheet. The statements look reasonable enough for me to rely on. [Underlining added. Transcript, September 10, 2014 at pp.34 to 35]
[107] Tanya submits that based on the evidence of Mr. Kirsch and Mr. Rosati, Tanya’s income, for the purposes of retroactive child support should be the following:
| Year | Amount |
|---|---|
| 2009 | $15,000 |
| 2010 | $15,000 |
| 2011 | $15,000 |
| 2012 | $15,000 |
| 2013 | $25,000 |
[108] I agree with Ms. Torry that the evidence is clear that up until 2010 Tanya’s income has been $15,000. I am not as persuaded that her income from 2011 to 2014 should stay at that amount. I have the evidence of Mr. Rosati that BOF was in fact making a profit in 2011 to 2013. Mr. Rosati also testified that Tanya could increase her salary. Mr. Rosati did attempt to explain that the profit realized in the company is accounting profit. However, quite frankly, I found his evidence on this point to be confusing. In the end, when I consider his evidence about profit, I am inclined to increase Tanya’s income from 2011 to 2014 because I am satisfied that there was some profit in the company and this should be attributed as income.
[109] Ms. Torry helpfully provided support scenarios by providing me with DivorceMate calculations from 2011 to 2013 with Tanya’s income changing. I am satisfied that her income for 2009 and 2010 should be $15,000. Taking into account the profit outlined by Mr. Rosati, I have increased Tanya’s income of $15,000 to $25,000 for 2011; and $35,000 for 2012 and 2013.
[110] In his oral reply submissions, Kevin asked me to examine Exhibit 50 which was a series of bank records. Kevin asserts that after examining these bank records, I can infer and make a finding that Tanya actually earns cash income and that her income is significantly greater than what is declared in Mr. Kirsch’s report:
They had mentioned that Mr. Kirsch’s report should be respected for its finding of no hidden money. To that my question would simply be how do we account for the 33 grand per year going into her personal banking account? That, again, is at tab - sorry, Exhibit 50. We have banking records provided from Tanya from late 2009, to 2012.
KEVIN LAVIE: Okay. Here we go. I have done my own calculations going through those statements. In 2010, we have 12 months of records and we see deposits of 32,571, for a total of 2,000 – or sorry, for an average of 2,714 per month.
In 2011, we have nine months of records equaling $18,573, or 2,063 per month.
In 2012, we see eight months of records showing $28,728 of deposits, or 3,591 per month.
The total combined records of 29 months there give us deposits of 79,872, or a per month average of 2,754, which is also an annual average of 33,050. [Transcript, October 10, 2014 at pp. 131-132].
[111] I agree with Ms. Torry that it would be very prejudicial to Tanya for me to consider these submissions. Tanya was never cross examined on these accounts. As Ms. Torry points out this is unfair and contrary to the principle set out in the case of Browne v. Dunn. [^12] The rule, simply stated, is that a party cannot “ambush” a witness by not giving her the opportunity to state her position with respect to later evidence, which contradicts her on an essential matter.
[112] Furthermore, the document is not complete. It is missing statements from January 1, to March 16, 2011 and July 26 to August 8, 2011. This is not a complete record. It was only referred to in reply submissions. I do not rely on this document for the proposition that Tanya has hidden income.
d. Child support
[113] Tanya claims a shared arrangement of child support pursuant to s. 9 of the CSG, and on the principles set out in the Supreme Court of Canada case Contino v. Leonelli Contino[^13]. Kevin agrees that child support should be paid but that Tanya should pay him for child support.
[114] According to s. 9 of the CSG, where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the Court must determine child support amount by taking the following into account:
a) The amounts set out in the applicable tables for each spouse;
b) The increased costs of shared custody arrangements; and
c) The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[115] Section 9 of the CSG requires a two-part determination: first, establishing that the 40 per cent threshold has been met; and second, where it has been met, determining the appropriate amount of support.
[116] Setting the amount of support in light of the three factors in s. 9 is an exercise of discretion. The weight of each factor under s. 9 will vary according to the particular facts of each case.
[117] Both parties concede that each has met the 40 per cent threshold.
[118] I will now turn to the three factors.[^14]
[119] The first factor requires that I take into account the financial situation of both parents. The simple set-off serves as the starting point. The set off is determined by calculating the CSG table amounts for each parent as though each was seeking child support from the other. The amount payable is the difference between the two amounts. I must note, however, that the simple set-off has no presumptive value. Full consideration must be given to the next two factors.
[120] The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.
[121] The total cost of raising children may be greater in shared custody situations than in sole custody situations. Therefore a court should examine the budgets and actual child care expenses of each parent without making assumptions that a party is over-spending. The expenses will be apportioned between the parents in accordance with their respective incomes.
[122] I have examined the financial statements at Exhibit 6 and 9 and the child budget filed by Tanya at Exhibit 21. However, I should point out there was no examination on these issues by either party. There was no testing of the assertions in any of these documents through cross-examination.
[123] However, my sense of the evidence, after hearing from both Kevin and Tanya, is that Tanya generally pays for a significant amount of the childrens’ expenses.
MS. TORRY Q. So since 2009, how have you and Kevin arranged for the kids activities, the kids clothing, the kids belongings? What are the - what do you two do around that? What's your....
TANYA A. There is no communication around it. To start school this year I had actually said to him, I saw him in his driveway and I said, Kevin....
Q. Let's - before you start...
A. Okay.
Q. ...what - so in the fall of 2009, you separated. So let's go back there and just sequentially explain what's been happening since 2009, as best you can recall, and then up to this fall?
A. We have very poor communication. We're not - I had left messages at this house many, many times saying, can you please buy the children winter boots or - or winter jackets or pants, they're growing like crazy and I can't keep up. The kids clothing, my friends are getting too - they're getting in different sizes and I don't know how to manage. Can you please buy some things?
And so he didn't, that I knew of, and what I would start to do is if I had to purchase them something – a lot of time my mom and my aunt would come down and take us shopping around Christmas to get winter stuff, and around spring time again. And then what I started to do is take pictures, catalogue pictures of the clothing because what would tend to happen, let's say Liam got 10 tops, I might see three of those tops ever again. I didn't know what was happening to them. And I just wanted Liam to even have a visual of, okay, remember this top that you wanted, where is that top? Remember these pants, where are those pants?
And I remember thinking, okay, I'm going to try it that if he realizes – if Kevin realizes that kids need things, maybe he'll just do it out of - 'cause guys - he's not a shopper. And then maybe the necessity would put a bit of oomph in his step and maybe have him go and get some stuff. So things like – I think he's gotten Kevin - Liam's haircut maybe twice professionally at a barber shop with him, and the other times he tried doing it himself and Liam was not happy with that haircut. And so I knew that I had to get haircuts, and so part of it was I'd let Liam's hair grow out thinking that Kevin could get his haircut, and it never occurred. So Liam would be devastated that his hair was that long and I'd bring him to get his haircut. [Underlining added. Transcript, October 25, 2013, p. 23]
Q. So how did the children go back to back? Do they take a backpack to school? Do they have - how does that work for them to go back - back and forth on an alternating day basis?
A. I actually think it does work well. It works better than I had anticipated. The only problem is the clothing problem, getting the clothing back because that would tremendously help me. Other thing are the Tupperware. I - I know it's a silly point to bring up, but honestly, those Tupperware containers add up and one time I went through a thing, I got something at Costco, where they was 30 Tupperware containers. I labeled them all, 1 to 30, and figured this would be a way for me to see if I'd get anything back. And right now I only have number 15. I don't have any other ones. And I even got the kids, at the beginning of this year and I only used it last month, a thermos for each of them, 'cause sometimes I give Liam cereal with milk. They have used it once. I've never seen them again.
Q. And do you have discussions with Kevin around arrangements?
A. Many discussions about the Tupperware and - but anyway around....
Q. No, but - and...
A. The....
Q. ...and the results of those discussion, is there any change, is there any....
A. No, there is no changes.
Q. Okay.
A. It's been since I've moved out and there has been no change. I just find it frustrating.
Q. So I'm going to show you your - Exhibit 9 is the financial statement that was sworn October 7, 2013, if you could take a look at that?
A. Mm-hmm.
Q. Just take a quick look at that.
A. Okay.
Q. And confirm whether or not those are your expenses set out at pages three through - three and four?
A. Yes, they are.
Q. And the current assets and liabilities set out to the best of your knowledge and belief?
A. Yeah, yes.
Q. I'm going to show you a form called a children's budget, which is dated October 18th, of 2013, if you could take a look at that? The family monthly costs would be from your October 7 financial statement, and there's been some propionate percentages attributed for the children. Could you confirm how you come up with this calculation, why you felt these are the appropriate calculations?
A. For most of them it's because it’s just half of the cost, or because it's 70 per cent meaning that it's two of them and one of me.
Q. And so out of your monthly expenses, this is - you would attribute, it says at the bottom, proportion of expenses to the children totals just over 60 per cent?
A. Correct.
Q. What's the size of your home, like how many bedrooms?
A. Three bedrooms.
[Underlining added. Transcript, October 25, 2013, p. 28]
[124] When he was cross examined on this issue, Kevin was vague. His evidence as to what he was asking the court to do about child support is also confusing:
MS. TORRY Q. And so since then, what - how do you two pay the expenses for the kids? What's - what's the arrangements? How do you plan it? You know, how do you agree on? How's it arranged? How's the children's expenses been met since October, 2009?
KEVIN A. Well, since we're not supporting each other, we - we do it independently.
Q. So you just buy whatever you think and she just buys whatever she thinks?
A. No, what - yes, for the most part.
Q. Okay. And do you have a children's budget? Have you put together a budget of what it costs you for the children on a month to month basis?
A. Are you referring to the last section of the 13.1 where they ask a proposed budget, to fill that out?
Q. No, I don't have that in mine. So the copy that you sent to me does not have a proposed budget? But that's a budget as a family. I'm talking about individually, what are the costs of the children as a proportionate share of your budget?
MS. TORRY: And Your Honour, if I might just have a copy of the proposed budget from Exhibit 6 if there is one. I don't have it attached to mine? Just when - when we have a break will fine.
THE COURT: I'm just looking for it. So hold on. Where do you say the proposed budget is, Exhibit 6, 13.1
MS. TORRY: Q. Do you have your 13.1 with you...
A. I don't have it...
Q. ...Mr. Lavie?
A. ...in front of me.
THE COURT: I'm just looking at it.
MS. TORRY: Q. Did you complete the proposed budget on the 13.1?
A. I thought I did.
Q. Well, perhaps you can find yours and you could make a copy - we can make a copy over....
THE COURT: You're talking about the latest one, the one October, right?
A. Yes.
THE COURT: Yeah.
A. I'm sorry.
MS. TORRY: Q. I'm actually not talking about that, Mr. Lavie. I'm talking about a children's budget of what portion of your month to month expenses you would attribute to the children. And I guess part of that is so the rental accommodation that you have, is it a two bedroom, a three bedroom, a five bedroom, what is it?
A. It is a two bedroom.
Q. Two bedroom apartment?
A. That's correct.
Q. And so did you ever put together an expense budget? Do you have any summary of what you spend on the children? One of - the reason I'm asking you that, Mr. Lavie, is it's going to be my submission that under the case law in determining the sharing of expenses for children or the appropriate level of child support, one looks at the costs of a shared arrangement and the increased costs to each party of maintaining a shared arrangement. Do you have any receipts, any summary of what you spend for the children and what you've spent since 2009, or going forward?
A. I mean, we've exchanged so much financial disclosure, I imagine that many of the answers would be within that disclosure.
Q. Well, today is your day to put it into evidence. Disclosure is not evidence, sir. So if you've got something it would be very helpful if you could produce it today.
A. Are you – okay. Do we....
Q. So how much for the kids....
A. We have bank statements here, which may help reflect those numbers. I don't know if that's what you're suggesting we submit.
Q. So what bank statements do you have...
A. Like bank...
Q. ...and for what period of time?
A. ...like bank accounts, bank account statements.
Q. For what period of time?
A. Well, I think right here we have - it's not in these briefs, is it? What - it would've been in that same - what I'm referring to right now is the same disclosure we were looking at earlier as far as my Scotiabank account.
Q. Well, your Scotiabank account only goes - the copies we had only went to December, 2010.
A. Okay.
Q. So there's nothing current.
A. And that was the disclosure? Okay. That sounds about right. So I....
Q. So there's nothing current? So you have nothing to show what it cost you for the children on a month to month basis at this point, what your expenses are for...
A. Well, I - I...
Q. ...your children?
A. ...I think that we can come to a - an average of sorts by looking....
Q. So what's the average? Just tell me.
A. Off the top of my head, I - I can't tell you.
Q. Okay. And so how do you and - and Tanya - it's going to be Tanya's evidence that in fact you two do not communicate well around expenses for the children. That it's her position that she buys a lot of clothes for the children. Because it's an alternating day arrangement, they go to your house, they stay at your house and the clothing come back to her house is not - doesn't fit properly. And so she replaces it. It goes to your house and doesn't come back. So it'll be her evidence that she's supplying a significant amount for both households and she's paying for a lot of expenses for the children that supports both households. What's your position on that?
A. My position is I also incur expenses for clothing.
Q. How much? That's what we're trying to determine.
A. No, again and when, you know, on the spot, my - my memory isn't that great.
Q. Okay. So if I suggest to you that how to share the expenses for the children has been a communication problem between you and Tanya, is that a fair statement?
A. I don't know if it's a problem of communication. I - I don't - I - I haven't had, as I was telling you the other day, I - I don't understand why this is being turned into a problem in - in many ways. I don't - I don't - I don't think it's been a problem.
Q. That's fine. But if - but you're aware that Tanya believes it's a problem because she believes that she incurs significant expenses for the children for the benefits of both households, and that she has an over expensive burden – financial burden because she supports the children in both households for their supplies, for their things and what they need?
A. I'm aware that she is stating that...
Q. So going forward, isn't it fair to say that some way of simplifying and making sure that each household's needs of the children are being met in an equal and fair way, would be what you - would be helpful?
A. You're asking me for a suggestion?
Q. No...
A. Sorry.
Q. ...I'm asking you as a principle. Wouldn't it be helpful if this was solved?
A. If?
Q. If there was a way that the court made an order that would make it easier and there wasn't this debate about who did what, if you were responsible, and what you could put in place, and that the court makes an order - your - your proposal is that you would pay Tanya $129 a month on a set off formula. One of the things I'd suggest to you that the court needs to consider is whether or not the set off formula is the methodology for providing for the children. If the evidence of Tanya is accepted, that she in fact pays out more for the benefit of the children and to meet their day to day needs in both households, then that would not be an equitable way to do it I would suggest. So why do you think the set off would be the appropriate way to do it? You've asked the judge to make a set off?
A. Yes.
Q. Why do you think that wouldn't....
A. The set off and - and - I may need to speak with duty counsel on this because....
Q. It's too late.
A. The issue I was going to raise is when Kain and Ball was putting this orders for sought for trial, I do remember that there was - it was as simple as that. There was DivorceMate calculations that were supposed to have been submitted, and it wasn't just looking at one year. There - there was a look at several years. And if you're saying it's too late, I'm not sure how I....
Q. No, I'm just saying it's too late to go talk to duty counsel. You're being cross-examined, sir. You can't talk about your evidence with anyone.
A. I see.
Q. So if there is - you're - your order request on Exhibit 3 says a set off amount of $129 per month. So if you are looking at something different, what is it you are asking the court to do?
A. I...
Q. You're saying that....
A. ...I believe that was based on the - the DivorceMate calculations that were prepared.
Q. And is that a set off amount or is it something different? I don't have the DivorceMate calculations. So what is it that you're asking the court to do? Is it a set off or is it something different? If it's something different, give us the framework of what's different.
Q. So you don't know for sure whether it's a set off or it's something else?
A. No, I don't know for sure.
Q. Okay. Would you then today say that something different than the set off would be the appropriate amount, or is that what you're asking the judge to do? What are you asking the judge to do going forward from...
A. That...
Q. ...for child support?
A. ...that is the order I'm seeking.
Q. Okay. Whatever [Underlining added. Transcript, October 24, 2013, pp. 58-62]
[125] My sense of the evidence is that both Kevin and Tanya are receiving assistance from their families but I must recognize that Tanya’s income has been significantly less since the date of separation and she has incurred debt because she has received no support from Kevin since that date.
[126] Some scholars have argued that if there is any strong message coming out of the Supreme Court of Canada’s case in Contino, it is that children in shared custody arrangements should not experience significant differences in their standard of living when moving back and forth between two parental households.[^15]
[127] This is Tanya’s position. Ms. Torry submitted:
…often the set-off is used. But, Your Honour, where I suggest that the court should look is-is often it’s the combination of child and spousal support that the courts use if the child support is not sufficient to meet the standard of living tests, and often it’s because there’s a spousal support component. So instead of having, you know, child support going over [the set off amount] as sufficient, there’s also a spousal support component, which I would suggest is appropriate in this case. [^16]
[128] If there is a significant disparity income between parents, the Court has the discretion to order spousal support in addition to the set-off amount for child support. Implementing spousal support in this fashion has been described as a “much more flexible remedial tool in these cases”.[^17] Topping off spousal support with child support payments can be a way to achieve an equal standard of living. I have concluded that this would be an appropriate way to deal with the issue. I will now move on to determine entitlement and quantum of spousal support.
e. Spousal Support
[129] The Divorce Act,[^18] provides that an order for support should recognize, among other things, the advantages and disadvantages arising from the marriage or its breakdown and relieve any economic hardship of the spouses arising from the breakdown of the marriage. The objectives are set out in s. 15.2(6). There are four objectives:
(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.
[130] The Supreme Court of Canada has directed that these four objectives must be considered together in establishing an equitable sharing of the economic consequences of marriage breakdown. Trial judges are not to concentrate on one factor to the exclusion of the others. The above factors are cumulative.[^19]
[131] Generally speaking, compensatory support, in ss. 15.2(6)(a) and (b) of the Divorce Act, focuses on the advantages and disadvantages flowing from the marriage or its breakdown, while non-compensatory support, in ss. 15.2(6)(c) and (d) of the Divorce Act, focuses on need.
[132] As I consider the factors and objectives of ss. 15.2(4) and (6) of the Divorce Act, I am not satisfied that Tanya has a claim for compensatory support. I appreciate that she performed a number of non-economic responsibilities during the marriage. I accept her evidence that she was responsible for the children because Kevin had to sleep given his work schedule. However, there is evidence from Kevin that he did participate in the non-economic obligations to the extent that he was able and that he helped Tanya in dealing with the pressures of teaching that she faced.
[133] Overall, when I consider the evidence, I am not persuaded that Tanya’s assumption of the household responsibilities negatively affected her teaching career. I also find that Tanya’s career was not compromised by the marriage. Tanya loved being a teacher but, as discussed, she wanted to try her hand at business. BOF allows her more flexibility with the children.
[134] Ultimately, I do not find that the marriage put Tanya at a disadvantage regarding her career choices.
[135] However, I am persuaded by Ms. Torry’s submissions that Tanya has established an entitlement to “needs based” spousal support because of the parties’ disparity in income. Tanya went into business because both parents wanted flexibility for Tanya to be with the children. This business requires more time to be successful. Kevin has paid no support since the date of separation. Tanya has been relying on her family to support her and the children. However, there is no obligation on her family to do so.
[136] I find that Tanya’s claim for spousal support arises because of the parties’ disparity in incomes and because of the need to ensure that upon dissolution of their relationship that Tanya and Kevin should have an equal standard of living.[^20]
f. Conclusion
[137] When I consider the shared custody arrangement, and analyse all the factors under section 9 of the CSG, including the means, needs and conditions of both spouses, I am persuaded that there are significant increased costs of shared custody at the present time.
[138] I am also satisfied that Tanya has a valid claim to spousal support arising from the fact that there was and still is an income disparity between the parties.
[139] In this case, I have decided to order the set-off amount of child support and then add to this an amount of spousal support payable to Tanya to achieve equal net disposal incomes between the parties.
[140] Since 2009, Kevin has not contributed to child or spousal support. Therefore, this is a case where retroactive support should be ordered. When I examined Exhibit 6 and Exhibit 9, Tanya’s debts have increased. Kevin’s debts have also increased but not to the same degree as Tanya.
[141] I have reviewed the DivorceMate calculations tendered by Ms. Torry on behalf of Tanya. These calculations have been filed as Exhibit 53. The DivorceMate calculations provide support scenarios and a column entitled: “50/50 NDI split”. This number reflects an amount required to achieve equal net disposable incomes.[^21]
[142] Using Exhibit 53 as my guide, I impose the set off amount for child support under the CSG and, in addition, order spousal support reflective of a 50/50 NDI split.
[143] I am satisfied that this solution is the most fair at the present time, with Tanya’s income.
[144] Ordering these forms of support, will prevent the children from experiencing a wide disparity in their standards of living when moving between homes.
[145] My calculations are set out below.
| Year | Child Support (Set off amount) per month | Spousal Support (50/50 NDI Split) per month |
|---|---|---|
| 2009 | $714 | $691 |
| 2010 | $718 | $736 |
| 2011 | $638 | $605 |
| 2012 | $638 | $665 |
| 2013 | $529 | $505 |
g. Retroactive Order and Arrears
[146] As a result, Kevin will have to pay arrears of child support and spousal support. I am satisfied that any retroactive order should be paid in a lump sum. I appreciate that Kevin is presently unemployed. However, he has not paid support since the date of separation. Tanya has effectively had to borrow from her family to make ends meet. It is not her family’s responsibility to keep the standard of living equal for the children. In my view, there is a need to impose a retroactive award of support and a need to provide capital to Tanya.
[147] I find that any spousal support arrears should account for the support amount that Kevin would have been able to deduct as payor from the date of separation. Any arrears of spousal support owing should be less 20 percent from the lump sum payment, considering that there should be some reduction for income tax benefits and obligations.
[148] The arrears of child support owing is fixed at $25,356.
[149] The arrears of spousal support owing is fixed at $25,454 less 20 % tax, for a net payment of $20,363.20.
h. Review Order of Spousal Support
[150] Lexa will be 14 on October 27 and Liam will be 11 on October 23. Liam is approximately seven years away from finishing high school. Both children are still going to be living with their parents for the near future. I am satisfied that to maintain the same net disposal income for each household, there should be no fixed termination date. Of course, indefinite spousal support does not mean that spousal support is permanent. It simply means that the order does not have an expiration date at the time it is made. These orders may be varied as the circumstances of the parties change. In other words, an indefinite spousal support order means support the order is the subject to the normal process of variation and review.[^22] Simply put,, either party can bring an application to vary the spousal support order if there is a material change in circumstances.
[151] I cannot ignore that Kevin is unemployed and is looking for work in his field. I acknowledge that he will have a number of debts to service. At this time, there is some uncertainty about whether he will be successful in finding employment and maintaining an income of about $70,000. To resolve my concern, I am inclined to impose a term that, after October 5, 2017, Kevin may apply for a review of spousal support without showing a material change in circumstances.
[152] In Leskun v. Leskun,[^23], Binnie J. held that, "[r]eview orders have a useful but very limited role" and are applicable only when there is "genuine and material uncertainty at the time of the original trial".
[153] I acknowledge the need for finality in litigation. I also acknowledge that that trial courts should resist making temporary or review orders in preference for permanent spousal support orders, which would be subject to the variation in the event of a material change in circumstances. [^24] However, I am in a state of uncertainty about Kevin’s employment on a go forward basis. Therefore, while I encourage Kevin to make reasonable efforts to find work, if, in 24 months he still has not found work, spousal support may be reviewed.
[154] I want to make it very clear to Kevin that this review means a review of the amount of spousal support to be ordered and not entitlement. Tanya is entitled to spousal support given my findings. The point of any review in 24 months is to simply see if the numbers I have calculated remain appropriate in light of his work situation.
i. Extraordinary and Special Expenses
[155] Tanya and Kevin both make claims with respect to extraordinary and special expenses (s. 7 of the CSG). I heard no evidence as to why expenses for camp, computers, cellphones, French lessons and driver’s education were reasonable or necessary. I therefore decline to make any order for s. 7 expenses and I decline to make an order that Kevin contribute to a registered education savings plan (RESP) for Lexa or Liam.
IV. Conclusion
[156] I make the following orders:
A. For the year 2009, based on the shared custody of the children, Mr. Lavie’s 2009 income of $63, 878 and Ms. Lavie’s income of $15,000, Mr. Lavie will pay the following amounts to Ms. Lavie: (a) child support of $714 per month commencing November 1, 2009 and on the 1st of each month thereafter to and including December 1, 2009,; and (b) spousal support of $691 per month, commencing November 1, 2009 and on the 1st of each month thereafter to and including December 1, 2009,.
B. For the year 2010, based on the shared custody of the children, Mr. Lavie’s 2010 income of $65,407 and Ms. Lavie’s income of $15,000, Mr. Lavie will pay the following amounts to Ms. Lavie: (a) child support of $718 per month, commencing January 1, 2010 and on the 1st of each month thereafter to and including December 1, 2010,; and (b) spousal support of $736 per month, commencing January 1, 2010 and on the 1st of each month thereafter to and including December 1, 2010.
C. For the year 2011, based on the shared custody of the children, Mr. Lavie’s 2011 income of $67, 910 and Ms. Lavie’s income of $25,000, Mr. Lavie will pay the following amounts to Ms. Lavie: (a) child support of $638 per month, commencing January 1, 2011 and on the 1st of each month thereafter to and including December 1, 2011,; and (b) spousal support of $605 per month, commencing January 1, 2011 and on the 1st of each month thereafter to and including December 1, 2011.
D. For the year 2012, based on the shared custody of the children, Mr. Lavie’s 2012 income of $77, 923 and Ms. Lavie’s income of $35,000, Mr. Lavie will pay the following amounts to Ms. Lavie: (a) child support of $638 per month, commencing January 1, 2012 and on the 1st of each month thereafter to and including December 1, 2012; and (b) spousal support of $665 per month[^25], commencing January 1, 2012 and on the 1st of each month thereafter to and including December 1, 2012.
E. For the year 2013, based on the shared custody of the children, Mr. Lavie’s imputed income of $70,000 and Ms. Lavie’s imputed income of $35,000, Mr. Lavie will pay the following amounts to Ms. Lavie: (a) child support for the two children in the amount of $529.00 commencing January 1, 2013 and on the 1st of each month thereafter and (b) spousal support in the amount of $505 per month, commencing January 1, 2013 and on the 1st of each month thereafter.
F. The parties will share equally any health, medical, drug or dental costs not covered by any available benefit plan.
G. Ms. Lavie will pay Mr. Lavie an equalization payment of $5,380.27.
H. Mr. Lavie will pay to Ms. Lavie the sum of $1,440.00 in full and final settlement of all property claims of either party.
I. The law firm of Garvey & Garvey LLP is directed to pay to the parties’ one half of the funds currently held in trust, and from each party’s share, deduct the payments due under this judgment.
J. The arrears of child support owing is fixed at $25,356.
K. The arrears of spousal support owing is fixed at $25,454 less 20 % tax, for a net payment of $20,363.20.
L. A support deduction order shall issue.
M. Each party shall provide the other party with a copy of their complete income tax return with all attachments by June 30th each year in relation to the previous calendar year, commencing in 2015 in relation to 2014.
N. Each party shall provide the other party with a copy of all notices of assessment and re-assessment received from CRA, within 30 days of receipt, from this date forward.
O. Ms. Lavie may take out an order of this judgment without seeking approval as to form and content from Mr. Lavie.
P. At the time of this judgment, Mr. Lavie is currently unemployed but making efforts to find work. Mr. Lavie should make reasonable efforts to find employment. However, if, after making these reasonable efforts, Mr. Lavie is still unable to find employment, then spousal support may be automatically reviewed by Mr. Lavie, without the need to establish a material change in circumstances, on or after October 5, 2017.
V. Costs.
[157] I invite the parties to make submissions to argue costs. I have already received some partial costs submissions from Ms. Torry in relation to the “Respondents Reply Submissions” filed on November 25, 2014. I will not consider any submissions as to costs filed after November 23, 2015.
Coroza J.
Released: October 5, 2015
COURT FILE NO.: FS-10-069785-00
DATE: 20151005
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KEVIN LAVIE
Applicant
– and –
TANYA LAVIE
Respondent
REASONS FOR JUDGMENT
Coroza J.
Released: October 5, 2015
[^1]: I regret the delay in releasing these reasons. The trial was completed by October 10, 2014 and written submissions were received on November 25, 2014. I anticipated completing these rulings within six months of that date. Unfortunately, this trial overlapped with a lengthy criminal trial, R. v. Singh et al. that commenced in September of 2014 and ended on June 2, 2015. The length of that trial kept me from writing these reasons, thus the delay. [^2]: Kevin appeared to dispute that they began to live together in 1998. I prefer the evidence of Tanya and make a specific finding that they did live together in 1998. [^3]: During the trial, and on a without prejudice basis, I released $10,000 of this money to each of the parties. Accordingly, $100,000 remains in trust. [^4]: Family Law Act, RSO 1990, c F.3 (FLA). [^5]: Townshend v. Townshend, 2012 ONCA 868, at para. 11. [^6]: Exhibit 51 sets out a lower equalization payment. However, Ms. Torry for Tanya acknowledged that there was a mistake in her calculation regarding the overpayment of Rose. Instead of $7, 537.50, Tanya’s position, which I accept, is that the overpayment to Rose is $10, 652. [Transcript, October 10, 2014 at p. 126] [^7]: See Bak v. Dobell 2007 Carswellnt 2324 (C.A.) at para. 30. [^8]: Child Support Guidelines, O. Reg. 391/97. [^9]: See, for example, Arnold v. Washburn, 2001 CanLII 21149 (ON CA), 57 O.R. (3d) 287 (C.A.), leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 82. Kevin also relies on the case of Andersen v. Andersen 1997 CanLii 1163 (B.C.S.C.) at para. 29. [^10]: See Transcript, October 10, 2014 at p. 87. [^11]: Drygala v. Pauli 2002 CanLII 41868 (ON CA), 2002 O.J. No. 3731 (C.A.). [^12]: Browne v. Dunn (1893), 6 R. 69 (H.L.). [^13]: 2005 SCC 63, [2005] S.C.J. No. 65 [^14]: I have borrowed liberally from the helpful review of this section by my colleague Milanetti J. in Ratajczak v. Ratajczak [2010] O.J. No. 3281 (S.C.J.) [^15]: Thompson D.A.; The TLC of Shared Parenting: Time, Language and Cash (LSUC 7th Annual Family Law Summit, April 2013). [^16]: Transcript, October 10, 2014 at p. 115. [^17]: See footnote 13 at at page 5-27. [^18]: R.S.C 1985, c.3 (2nd Supp.) [^19]: Racco v. Racco, 2014 ONCA 330 [^20]: See Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (Ont.C.A) cited in Kruzick J.’s decision of Barraco v. Scott [2011] O.J. No. 3757 (S.C.) at para. 57. [^21]: I have produced my own DivorceMate calculation for the 2012 year because I have found that Kevin’s income for that year to be $77, 923. The DivorceMate calculation provided by Ms. Torry did not calculate support based on this income. This calculation is appended to my judgment as Appendix “A”. [^22]: Thom v. Thom [2013] O.J. No. 1742 at para 10. (S.CJ.). [^23]: 2006 SCC 25, [2006] S.C.J. No. 25, at paras. 36 and 37 [^24]: See the excellent review by Graham J. in Arnaud v. Chiddenton, 2014 ONSC 5615 [^25]: I have included as Appendix “A” a copy of my DivorceMate calculation for 2012.