CITATION: McMurter v. McMurter, 2016 ONSC 1225

COURT FILE NO.: FS-08-0046-02

DATE: 2016 July 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KELLY ANN McMURTER

Applicant

– and –

JAMES ROBERT GORDON McMURTER

Respondent

Self-represented

Mr. Abba Katz, for the Respondent

HEARD: January 11-14, 18-22, 27-29, February 8-10, June 22, 2016, at Belleville, Ontario.

MacLeod-Beliveau J.

REASONS FOR JUDGMENT

TABLE OF CONTENTS

Page

1. Introduction 4

2. Issues 4

3. Result 4

4. Positions of the Parties

a. Mr. McMurter 5

b. Mrs. McMurter 5

5. Factual Background 6

6. Litigation History

a. The February 14, 2008 Original Application for Divorce 9

b. The February 25, 2011 Motion to Change 10

c. The Motion to Extend the Time to Appeal 10

d. The Constitutional Challenge to s. 41 of the FRSAEA 10

7. Analysis

a. The April 14, 2013 Current Motion to Change 11

b. Spousal Support Arrears and Pattern of Payment 14

c. Mr. McMurter’s Employment History 15

d. Mrs. McMurter’s Employment History 17

e. Financial Disclosure 19

f. Net Worth Analysis 2010 and 2015 22

g. Mr. McMurter’s Income 2010 to 2015 25

h. Mrs. McMurter’s Income 2010 to 2015, not including

Spousal Support 36

i. SSAG Calculations for Spousal Support 40

j. The Law on Material Change of Circumstances 40

k. Security for Spousal Support Arrears 43

l. Security for Future Spousal Support Payments 45

m. Additional Ancillary Issues 52

n. Future Motions to Change by Mr. McMurter 54

8. Conclusion 55

9. Costs 55

10. Orders to Issue 56

11. Schedules:

a. Schedule A - Spousal Support Table 2009 to 2015 57

b. Schedule B - Mr. McMurter’s Net Worth 2010 and 2015 58

c. Schedule C - Mrs. McMurter’s Net Worth 2010 and 2015 61

d. Schedule D – Mr. McMurter’s Properties Acquired since

Separation and since April 6, 2010 64

e. Schedule E - SSAG Calculations 66

f. Schedule F – Property Certificates of Possession for Security 67

g. Schedule G – Form of Final Orders to Issue 68

INTRODUCTION:

1On April 6, 2010, Mr. Justice C. McKinnon made a Final Order in these divorce proceedings after the commencement of trial, pursuant to Minutes of Settlement signed by the parties. Mr. McMurter agreed to pay Mrs. McMurter spousal support of $2,500 per month.

2On August 14, 2013, the Respondent, James Robert Gordon McMurter, commenced this Motion to Change the Final Order of Mr. Justice C. McKinnon seeking to terminate his spousal support obligation to the Applicant, Kelly Ann McMurter. A trial of the issues was directed and lasted 15 days before me. The Motion to Change was under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The matter of clarification of the Final Order as to property was under the Family Law Act, R.S.O. 1990, c. F.3 and dealt with on consent as a condition of the trial proceeding, as the Final Order of McKinnon J. had not been complied with by the parties.

3Part of this case involves the interpretation and application of various provisions of the Indian Act, R.S.C. 1985, c. I-5. Respectfully, and following LaForme J.A.’s decision in Mohawks of the Bay of Quinte v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, my references to “Indian” and “band” are terms used in the Indian Act, where a more appropriate reference would be “Aboriginal” and “First Nation”. To avoid confusion, I have used the language in the Act where appropriate. “Band” refers to the Mohawks of the Bay of Quinte, Tyendinaga Mohawk Territory.

ISSUES:

4Has there been a material change of circumstances to vary or terminate the $2,500 per month spousal support Final Order of Justice C. McKinnon dated April 6, 2010?

5What orders should be made in relation to the outstanding property matters of the April 6, 2010 Final Order?

6Should the support order be secured and if so how, considering that the significant assets of the support payor, Mr. McMurter are located on land subject to the provisions of the Indian Act? Specifically, can this court make an order to charge and lien the Certificates of Possession issued to Mr. McMurter under the Indian Act to provide security for a spousal support order to Mrs. McMurter subject to approval by the Band and the Minister?

7Costs.

RESULT:

8The existing spousal support order is presumed to be correct when granted on April 6, 2010 in the Final Order. There was no agreement as to what the parties’ income and assets were at the time of the Final Order. To determine if there has been a material change of circumstances, comparison to the parties’ income and assets between 2010 and 2015 must be made. There was a lack of financial disclosure and no income of the support payor referred to in the Final Order. It became necessary to determine what the income and assets of the parties were in 2010 to determine if there had been a material change of circumstances in 2015.

9I find that there has not been a material change of circumstances of either Mr. or Mrs. McMurter proven on the balance of probabilities to warrant a variation or termination of the April 6, 2010 spousal support Final Order. Mr. McMurter’s Motion to Change is therefore dismissed. Mrs. McMurter’s Claim by Responding Party, for security for spousal support, is granted subject to the provisions of the Indian Act, which requires approval the Mohawks of the Bay of Quinte (MBQ), Tyendinaga Mohawk Territory and the Minister of Indian Affairs and Northern Development. Additional ancillary orders are made.

POSITIONS OF THE PARTIES:

Mr. McMurter

10In his Motion to Change, Mr. McMurter seeks termination of spousal support effective August 1, 2013. Mr. McMurter’s position is that there has been a material change of circumstances since the April 6, 2010 order, as he says his building store business has continuously deteriorated from 2010 to 2015 resulting in a significant decline in his personal income. The reason for this he submits is the increased competition his business has from big box stores like Home Depot, Lowes, and Home Hardware. Mr. McMurter has diversified his business to include rental properties. He uses the income from his rental properties to make up for the financial loss he incurs as a result of his building store business. Further, it is his position that Mrs. McMurter is now earning a significant income and the increase in her income from 2010 until 2015 is a material change of circumstances. It is his position that Mrs. McMurter is now self-supporting and that all spousal support should terminate, and all arrears be cancelled.

11The specific relief sought by Mr. McMurter at trial was that spousal support be varied commencing January 1, 2011 until December 31, 2014 based on the Spousal Support Advisory Guidelines (SSAG) lowest amount of spousal support to be paid, calculated on their respective incomes. After December 31, 2014 spousal support shall be terminated. In addition he asks that Mrs. McMurter pay him the sum of $26,564.18 for spousal support overpayments within 30 days of the Court Order, and that she pay his costs of these proceedings.

Mrs. McMurter

12In her Claim by Responding Party, Mrs. McMurter seeks an order dismissing the Motion to Change and an order to clarify the Final Order of April 6, 2010 in terms of dates and consequences. The Final Order was hastily put together and not clear about matters involving their jointly held property. Mrs. McMurter’s position is that there has not been a material change of circumstances. It is her position that Mr. McMurter’s financial situation and particularly, his net worth, have significantly increased in the years between 2010 and 2015. Mr. McMurter is deliberately hiding his income and simply refuses to pay spousal support which he can well afford to pay. She submits that Mr. McMurter enjoys a good lifestyle and that he has deliberately manipulated his business records to minimize and hide his income through unaccounted for cash transactions and failure to record sales through his business. Mrs. McMurter asks for the enforcement of spousal support arrears which total $134,138.32 as of June 8, 2016, together with court ordered compliance with all of the outstanding terms of the April 6, 2010 Final Order that have not been honoured by Mr. McMurter, and for security for her ongoing spousal support.

13The specific relief sought by Mrs. McMurter at trial was that the Motion to Change be dismissed. In addition, she seeks payment in full of all arrears, transfer of certain real properties and personal property owned by Mr. McMurter to satisfy the arrears and as security for future support payments, payment of occupancy rent for the jointly owned property of $1,500 per month from Mr. McMurter’s business, an order that no further proceedings can be commenced by Mr. McMurter while he is in arrears of spousal support payments, and security for costs for any future proceedings for which he is able to obtain leave of the court to commence.

FACTUAL BACKGROUND:

14Mr. McMurter, born December 5, 1956, is 59 years of age and Mrs. McMurter, born August 25, 1958, is 57 years of age. They were married on July 23, 1977 when they were 21 and 19 years of age respectively. Prior to marriage they lived together for three years. There were two children of the marriage, namely Brandi and Bryce, who are now financially independent. During the marriage, Mr. and Mrs. McMurter accumulated significant marital property through their mutual effort and hard work.

15Mr. McMurter and Mrs. McMurter are both Aboriginal and members of the Mohawks of the Bay of Quinte First Nation. They reside on the Tyendinaga Mohawk Territory (the Territory), which is a designated reserve under the Indian Act. Mr. McMurter and Mrs. McMurter have each resided on the Territory for over 26 years and are status Indians. Their properties on the Territory are subject to the provisions of the Indian Act, which is administered on the Territory by Chief R. Donald Maracle and the Tyendinaga Mohawk Council on behalf of all members of the MBQ.

16Mr. McMurter and Mrs. McMurter earn tax-free incomes on the Territory of the MBQ, which is a constitutionally protected right. Mr. McMurter’s income is earned exclusively on the Territory from his consolidated businesses under the name McMurter Home Centre, and he is exempt from income taxation. Mrs. McMurter’s income is a combination of income earned on the Territory, which is exempt from income taxation, and income earned off the Territory, which is subject to taxation.

17On May 26, 2005, the parties entered into a marriage contract under s. 52 of the Family Law Act. The domestic contract provided that the parties elected that none of the property of either party would be divided between them except according to ownership. Title to any property was conclusive proof of ownership. The contract contained a release of any claim for a payment intended to equalize the net family property of the spouses pursuant to the Family Law Act. This meant that Mrs. McMurter released any claim she had to her former husband’s business and that she would not receive any payment for her work, effort and contributions to her former husband’s business as a result of that contract upon the breakdown of the marriage.

18The impetus for this marriage contract was to prevent Canada Revenue Agency (CRA) from placing a lien on a rental property in Mrs. McMurter’s sole name situated at 5 King George Square, Belleville, Ontario, off the Territory of the MBQ, and to prevent any potential claim by CRA that Mr. McMurter contributed any money, money’s worth or labour to the property. Mr. McMurter had an ongoing dispute with CRA as to alleged GST/HST claims arising from his business on/off the Territory. On June 13, 2008, CRA had placed a lien in the amount of $215,422.00 on the McMurter’s jointly owned rental property at 184 College Street East, Belleville, Ontario, located off the Territory of the MBQ.

19The marriage contract was legally far more reaching and effectively made Mr. McMurter and Mrs. McMurter separate as to property under the Family Law Act. Mr. McMurter appears to have received significantly more monetary value as a result of this contract than did Mrs. McMurter. The ongoing remaining property disputes between them at the time of their divorce and currently therefore relate only to their jointly held properties. This includes the jointly held assets of the McMurter business property on Hwy #49 on the Territory, their former joint residence at 207 Bayshore Road on the Territory, the joint rental property at 184 College Street East, Belleville, and the joint mutual fund investment at Manulife Investments.

20The parties separated on August 25, 2007 after over thirty years of marriage, and a 33-year relationship. Mr. McMurter was 50 years of age and Mrs. McMurter had that day just turned 49 years of age. Their divorce trial commenced April 6, 2010 before Mr. Justice C. McKinnon and two exhibits were filed. That day, the parties entered into written Minutes of Settlement that formed the basis of the Final Order resolving all of the corollary issues. They were divorced on June 26, 2010. The issues dealt with at the trial involved spousal support and the jointly held assets. While initially disputed, their marriage contract signed on May 26, 2005 was held to be valid by the consent Order of Mr. Justice R. Scott on January 6, 2009. Mr. McMurter and Mrs. McMurter each remained therefore entitled to property solely registered in their respective names on separation pursuant to that contract.

21Paragraph 1 of the consent Final Order of April 6, 2010 provided for the Final Order to issue in accordance with the Minutes of Settlement filed and paragraph 2 ordered the divorce upon filing of the marriage certificate. In paragraph 3, Mr. McMurter’s driver’s licence was ordered to be reinstated reflecting the parties’ settlement of all financial matters between them, including arrears of spousal support. In paragraph 4, Mr. McMurter agreed to pay spousal support of $2,500.00 per month commencing May 1, 2010.

22In paragraph 5 of the Final Order, the arrears of spousal support were fixed at $40,915.00. Mr. McMurter agreed to pay $10,000.00 on or before May 6, 2010 and a further $10,000.00 on or before June 6, 2010, as well as $1,000.00 per month on account of the arrears commencing July 6, 2010 for 20 months, and $915.00 on the 21st month. Paragraph 6 provided that the parties were to remain as joint tenants on the Certificate of Possession for the business property situated at 283 Highway 49, Tyendinaga Mohawk Territory, where Mr. McMurter’s business, McMurter Home Centre, is located.

23In paragraph 7, Mr. McMurter waived his interest in their jointly held home at 207 Bayshore Road, Tyendinaga Mohawk Territory and agreed to attend at the MBQ Band Council Office to sign off his interest in the Certificate of Possession to Mrs. McMurter. In paragraph 8, Mr. McMurter agreed to transfer his interest in the jointly held property at 184 College Street East, Belleville, Ontario, a rental property off MBQ Territory, to Mrs. McMurter and to sign any documents necessary to facilitate the transfer subject to the lien filed by CRA being enforced. In paragraph 9, the parties agreed that this property had approximately $64,000.00 in equity. Mr. McMurter agreed to take the necessary steps to remove the lien on the College Street property filed by CRA for alleged GST/HST claims owing by Mr. McMurter. If the lien had to be satisfied by Mr. McMurter’s one-half equity, then he agreed to make the necessary repairs to this rental property, not exceeding $30,000.00 in materials and labour. The repairs were to be determined by Mr. McMurter. The quality of the materials was to be determined by Mrs. McMurter.

24Paragraph 10 provided that paragraphs 6 through 9 equalized the parties’ net family property. Paragraph 11 provided that the divorce issue without the filing of additional documents and paragraph 12 reconfirmed that Mr. McMurter’s driver’s licence was to be reinstated forthwith.

25Paragraph 12 provided that the parties liquidate the jointly held mutual fund with Manulife Investments forthwith and that the proceeds be divided equally between them. Paragraph 14 provided that the spousal support was to be enforced by the Director of the Family Responsibility Office.

26Mr. McMurter did not comply with the terms of Justice McKinnon’s order. At the beginning of this trial on January 11, 2016, Mr. McMurter had not paid spousal support of $2,500.00 per month. He owed $123,538.32 in arrears as of December 7, 2015, and $134,138.32 as of June 8, 2016. He had never attended at the MBQ Band office to sign off his interest in 207 Bayshore Road to Mrs. McMurter. He had not removed the lien on 184 College Street East in Belleville. He had not done any repairs or provided any material to 184 College Street East in Belleville. He had not transferred his interest in 184 College Street East in Belleville to Mrs. McMurter. The jointly held mutual fund had not been cashed in and still remained in the joint names of the parties. Mr. McMurter had not complied with Justice McKinnon’s Final Order.

27Prior to commencing this trial, I required the parties to comply with Justice McKinnon’s order. Specifically, I required that Mr. McMurter attend at the Band office and sign the documents necessary to transfer his interest in 207 Bayshore Road to Mrs. McMurter. The issues relating to other aspects of non-compliance with Justice McKinnon’s order were left for me to decide on consent of the parties.

28At present, Mr. McMurter resides with Debbie Baldwin, his common law wife of four years, at his home at 192 Church Lane on the Territory. Ms. Baldwin works for the Limestone District School Board in the Kingston area. Mr. McMurter drives a 2013 Nissan truck purchased on December 27, 2014 which he pays for, and Ms. Baldwin drives a 2014 Nissan Ultima which she pays for.

29Mrs. McMurter lives alone in one half of her now duplexed home at 207 Bayshore Road on the Territory. She is in a romantic relationship with Kevin Maracle, but they do not live together. Mr. Maracle is a licensed contractor and builder by trade. Mrs. McMurter drives a 2004 Honda Accord.

30While neither party lives lavishly, Mr. McMurter’s lifestyle is significantly more comfortable than that of Mrs. McMurter.

LITIGATION HISTORY:

The February 14, 2008 Original Application for Divorce

31On August 25, 2007, the parties separated. At that time, both Mr. and Mrs. McMurter worked together at McMurter Home Centre. Mr. McMurter was the sole proprietor of the business. Mrs. McMurter worked as an employee of the business. Mr. McMurter continued to pay Mrs. McMurter her weekly draw of $660.00 until December 2007, when he terminated her employment with McMurter Home Centre leaving her with little income.

32On February 14, 2008, Mrs. McMurter commenced an Application for Divorce and other corollary relief including spousal support in the Superior Court of Justice (SCJ). Mr. McMurter filed his Answer on February 22, 2008. The proceedings became lengthy, drawn out and acrimonious. A case conference was held on May 30, 2008, and a settlement conference on November 25, 2008. A trial date of December 15, 2008 was set to determine the validity of the marriage contract, but was subsequently adjourned. That issue was withdrawn and Mr. Justice R. Scott ordered that the marriage contract was valid on January 6, 2009 on consent.

33A motion was brought for interim spousal support to be heard on April 7, 2009, but was subsequently adjourned. A temporary order for interim spousal support was made by Mr. Justice H. McLean on July 14, 2009 for $2,439.00 per month commencing August 1, 2009 and payable until the trial or further order of the court. The support was to be enforced by the Director of the Family Responsibility Office. A trial management conference was held November 03, 2009 and the trial date of April 6, 2010 was set. By then, the Director of the Family Responsibility Office had suspended Mr. McMurter’s driver’s licence for non-payment of spousal support.

34A motion to strike Mr. McMurter’s pleadings was brought on March 9, 2010 for non-payment of spousal support. On consent, Mr. McMurter agreed to pay $9,000 in arrears of spousal support. The motion was withdrawn and his driver’s licence suspension was lifted. The Final Order of April 6, 2010 was obtained and the parties were ultimately divorced.

35In May of 2010, the Family Responsibility Office became involved again in the enforcement of spousal support arrears. Since the commencement of proceedings between these parties, there have now been over 30 attendances at various enforcement and default hearings in the Ontario Court of Justice (OCJ) in Belleville, Ontario. Belleville, Ontario is one of the locations in the province where there is no Unified Family Court, and enforcement and default matters proceed in the OCJ. Once again, Mr. McMurter’s driver’s licence was suspended by the Director of the Family Responsibility Office for non-payment of spousal support.

The February 25, 2011 Motion to Change

36On February 8, 2011, a refraining order was granted by Mr. Justice R. Byers on the basis that Mr. McMurter file financial material within 20 days. Mr. McMurter commenced a Motion to Change in the SCJ on February 25, 2011. On May 30, 2011, financial disclosure orders were made by Madam Justice A. Trousdale in relation to Mr. McMurter’s business records for 2008, 2009 and 2010. In addition, he was ordered to produce copies of written agreements including written receipts for funds for the properties that Mr. McMurter had purchased since his separation on August 25, 2007.

37The matter was adjourned to a Settlement Conference on August 2, 2011. At that conference, Madam Justice C. Robertson dismissed the Motion to Change on consent without costs and ordered that the spousal support order was to be enforced. She noted that Mr. McMurter had not complied with the disclosure Order of Justice Trousdale. Mr. McMurter’s driver’s licence was suspended by the Director of the Family Responsibility Office on September 29, 2011 for non-payment of spousal support.

The Motion to Extend the Time to Appeal the April 6, 2010 Final Order of Justice C. McKinnon

38On January 17, 2012, Mr. McMurter brought a motion before the Ontario Court of Appeal for extension of time to serve and file a notice of appeal from the Final Order of Mr. Justice C. McKinnon. The delay in bringing this motion exceeded 20 months from the time of the Final Order. Mr. Justice D. Watt of the Ontario Court of Appeal found this delay to be unexplainable. In his ruling he found that Mr. McMurter was disgruntled by the settlement he made, and that the Minutes of Settlement were signed in the courtroom in the presence of the trial judge. He found that Mr. McMurter was not naive and that he ran a successful business. He held that the case did not warrant an extension and that finality considerations should prevail. The motion was dismissed.

The Constitutional Challenge to s. 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996 (the FRSAEA)

39Mr. McMurter was served with a Notice of Default dated July 20, 2012 by the Director of the Family Responsibility Office. On November 6, 2012, Mr. McMurter brought a motion to stay and to adjourn the default hearing scheduled for November 16, 2012 in order to bring a constitutional challenge to the Family Responsibility Office’s enforcement legislation, the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (the “FRSAEA”).

40Mr. McMurter agreed, as a condition of the adjournment, to pay the spousal support of $2,500.00 per month pending the hearing of a constitutional challenge to s. 41 of the FRSAEA. These funds were paid into court and would only be released to Mrs. McMurter if he failed to win the constitutional challenge. Mr. McMurter issued his Notice of Constitutional Question on December 3, 2012. Section 41 of the FRSAEA sets out the powers of the court to enforce payment of support arrears at a Default Hearing.

41The constitutional challenge argument was heard on April 18, 2013. Mr. McMurter’s position was that s. 41 should not apply to him because it intrudes into the core federal power over Indians by impairing his vested legal rights under sections 29 and 89(1) of the Indian Act.

42Madam Justice E. Deluzio of the OCJ released her reasons on June 18, 2013 and found Mr. McMurter’s position to be completely without merit. She found that there was no conflict between s. 41 of the FRSAEA and s. 89 of the Indian Act. Section 89(1) of the Indian Act provides that the real and personal property of an Indian or band situated on a Reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band. The Director of the Family Responsibility Office is authorized to enforce payment of support arrears by the words “in favour or at the instance of any person other than an Indian or a band” in s. 89(1) of the Indian Act. She found that the Director, in pursuing enforcement against Mr. McMurter, was acting “in favour or at the instance of” Kelly McMurter, who is a status Indian, and dismissed the application.

43Mr. McMurter testified at this trial that he spent $30,000.00 in legal fees for this constitutional challenge application which was drawn on his business line of credit with the Bank of Montreal.

44On July 24, 2013, Madam Justice W. Malcolm of the OCJ made an order on consent at a Default Hearing that Mr. McMurter pay into court $2,500.00 that day and that the court then release to Mrs. McMurter the sum of $17,500.00 held in trust from the support payments during the constitutional challenge plus the $2,500.00 payment made that day. The Default Hearing was then adjourned to November 20, 2013. In the interim, Mr. McMurter was ordered to pay $2,500.00 per month commencing August 1, 2013 and in the event of default, that he be incarcerated for 5 days. To date, Mr. McMurter has never yet been incarcerated for his chronic non-payment of spousal support.

ANALYSIS:

The April 14, 2013 Current Motion to Change

45Mr. McMurter commenced this present Motion to Change in the SCJ on April 14, 2013. On September 11, 2013, Mrs. McMurter filed her Response and Claim by Responding Party. On November 5, 2013, Mr. McMurter brought a Motion to terminate spousal support on an urgent basis prior to a Case Conference being held. The motion was adjourned for argument to January 16, 2014. Mrs. McMurter then brought a motion returnable the same day prohibiting Mr. McMurter from bringing motions without the court’s permission, striking out his pleadings for non-compliance with the Final Order of April 6, 2010, and for a further order that he attend at the Band office and sign over his interest in 207 Bayshore Road, Tyendinaga Mohawk Territory, Ontario to Mrs. McMurter.

46Mr. Justice W. Tausendfreund held that the matter was not urgent and that Mr. McMurter’s materials did not address his purported urgent financial position. Further, he held that Mr. McMurter’s financial statement lacked full disclosure as to his business income and that it was expected that full and complete financial statements for the business for the last three years, being 2011, 2012 and 2013, would be filed. He also held that there was no evidence of Mr. McMurter’s history of payments or explanation for the current amount of arrears of $92,815.00, and further that there was no explanation as to why he had not signed off his interest in 207 Bayshore Road on the Territory to Mrs. McMurter. The Motion was dismissed with costs against Mr. McMurter. Mrs. McMurter’s motion was adjourned to a date to be set by the trial co-ordinator.

47The Default Hearings continued. On November 20, 2013, Madam Justice Malcolm ordered that Mr. McMurter continue to pay ongoing spousal support of $2,500.00 per month and in the event of default, that he be incarcerated for 5 days. Justice Malcolm adjourned the hearing to January 29, 2014. On January 29, 2014, Justice Malcolm ordered that Mr. McMurter pay the ongoing support payments of $2,500.00 per month, together with $10,000.00 on or before April 1, 2014 and a further $10,000.00 on or before May 1, 2014, failing which Mr. McMurter be incarcerated for 30 days. The Default Hearing was adjourned to May 2, 2014. These payments were not made as ordered, but Mr. McMurter was not incarcerated. On February 27, 2014, Mr. McMurter filed a Notice of Appeal of the January 29, 2014 order made by Justice Malcolm.

48A Case Conference was held on the Motion to Change on April 24, 2014 by Mr. Justice D. Belch. Mrs. McMurter brought a motion to prevent Mr. McMurter from continuing his court proceedings without payment of the previous costs orders and the two $10,000.00 lump sum payments ordered by Justice Malcolm. Mr. McMurter challenged the jurisdiction of the court at the Case Conference in relation to the property issues, as the property was located on the reserve. Mr. Justice Belch allowed Mrs. McMurter’s motion to proceed on a date to be set, and ordered costs against Mr. McMurter of $1,500.00 largely for Mr. McMurter’s failure to comply with Justice Tausenfreund’s order of January 16, 2014 for financial disclosure.

49On May 2, 2014 the Default Hearing continued before Madam Justice Malcolm. Mr. McMurter no longer had counsel and the Director of the Family Responsibility Office was seeking incarceration. The Hearing was adjourned to June 16, 2014 on terms that Mr. McMurter pay $2,500.00 per month and $2,000.00 per month on account of the arrears based on Mr. McMurter’s stated income of $58,344.00 per annum, and in the event of default that he be incarcerated for 5 days. Mr. McMurter did not pay the amounts as ordered and did not perfect his appeal. He was not incarcerated.

50On May 27, 2014, Mrs. McMurter’s set date motion in the SCJ was argued before Mr. Justice D. Belch. Justice Belch ordered that Mr. McMurter could not bring subsequent proceedings in the Superior Court until he had satisfied all costs orders previously made or without the court’s leave.

51On June 16, 2014, the Default Hearing was adjourned to September 22, 2014. On September 22, 2014 Justice Malcolm ordered that Mr. McMurter pay $6,500.00 on account of arrears, that in the event of default he be incarcerated for 5 days, and that he continue to pay ongoing spousal support. In addition, he was ordered to file a statement of income and expenses and balance sheets for his three businesses, McMurter Home Centre, Hastings I.C.F. and JM Developments, from January 2104 to the present date, and to perfect his appeal of the January 29, 2014 order and adjourned the Hearing to October 30, 2014.

52On October 30, 2014, Justice Malcolm again ordered that Mr. McMurter pay the ongoing spousal support of $2,500.00 per month and $2,000.00 per month on account of the arrears as in the May 2, 2014 order, and adjourned the matter to May 8, 2015. On that date, Justice Malcolm ordered that the order of May 2, 2014 continue and noted that Mr. McMurter had not served and filed the financial statements as previously ordered. The Default Hearing was adjourned to June 29, 2015. On June 29, 2015, the Default Hearing was adjourned to October 30, 2015. Justice Malcolm ordered that the May 2, 2014 order continue.

53On October 15, 2015, Mr. McMurter withdrew his appeal of Justice Malcolm’s Order of January 29, 2014. On October 30, 2015, the Default Hearing was adjourned to January 12, 2016, and then to February 23, 2016, and to June 22, 2016 to await the decision on this Motion to Change. Mr. McMurter made an arrangement with the Director of the Family Responsibility Office that he would pay $1,000.00 per month pending the completion of this trial.

54On November 25, 2015, a Case/Settlement Conference was held and this matter was set for trial at the January 11, 2016 sittings in Belleville. Madam Justice A. Trousdale ordered that Mr. McMurter serve and file an updated financial statement within 30 days. Mr. McMurter did not comply with this order, and served and filed his financial statement in court on January 11, 2016 on the first day of this trial. At this trial, his financial statement (Ex. #3), has been proven false, inadequate, and incomplete. His financial statement was intended to mislead the court. His financial statement as to his current income of $34,056.00 per annum is blatantly false.

55Mr. McMurter failed to provide financial disclosure or confirmation of his income prior to trial. After the close of his case at trial, I cautioned Mr. McMurter that without further complete financial disclosure, he risked a dismissal of his Motion to Change. I allowed Mr. McMurter to re-open his case and provide financial disclosure during the trial. Even then, the financial disclosure he provided was inadequate, incomplete and misleading in material ways. This 15 day trial was significantly lengthened by Mr. McMurter’s ongoing lack of financial disclosure. I decided to proceed with the trial in these undesirable circumstances, with a view to providing a decision on the issues on the merits and providing some finality. An issue of serious concern was Mr. McMurter’s non-compliance with the terms of the Final Order of Justice McKinnon.

56The issues surrounding the non-compliance with other terms of the April 6, 2010 order was left by the parties to be determined by me at trial on consent as a condition of the trial proceeding. Additional material on four matters was required by me and has now been filed by the parties. Consequently, four additional exhibits were added to the record in this case on June 22, 2016 and the parties were given the opportunity to file written submissions, if any, in relation to these four exhibits filed. The transfer of 207 Bayshore Road to Mrs. McMurter is confirmed in Ex. #35 by the Indian Lands Registrar. Mrs. McMurter’s line 150 income from her 2015 income tax return is confirmed in Ex. #36, as well as her 2015 Notice of Assessment and her statement of her 2015 non-taxable income. Mr. McMurter, through counsel, has confirmed the status of the CRA lien in Ex. #37, and the Director of the Family Responsibility Office has confirmed the amount of spousal support arrears as of June 8, 2016 in Ex. #38.

57At the commencement of this trial, I advised counsel for Mr. McMurter that if Mr. McMurter did not attend at the Band office to sign off his interest in 207 Bayshore Road on the Territory to Mrs. McMurter as ordered by Justice McKinnon on April 6, 2010, I would dismiss his Motion to Change for failure to comply with a court order, in accordance with Rule 1(8) of the Family Law Rules, O. Reg. 114/99. Mr. McMurter did later attend and signed the required documents. The representative from the Band office kindly attended in court to have additional documents signed by the parties as they had been incorrectly filled out by Mr. McMurter. These transfer documents were approved by Band Council at their monthly meeting and sent to the Minister for Indian Affairs for approval and registration.

58I advised the parties that I shall remain seized of the issue of the transfer of 207 Bayshore Road on the Tyendinaga Mohawk Territory to Mrs. McMurter, should it become necessary. On May 9, 2016, Mrs. McMurter confirmed in writing that on April 20, 2016, the Certificate of Possession for this property was transferred into her sole name by the Registrar of Indian Lands, as confirmed in Exhibit #35. This issue is therefore concluded.

Spousal Support Arrears and Pattern of Payment

59As of December 7, 2015 and according to the Director of the Family Responsibility Office, Mr. McMurter is in arrears of spousal support and administration costs in the amount of $125,638.32, as set out in Exhibit #13, and the arrears continue to accumulate. Of that sum, $123,538.32 is for arrears of periodic spousal support payments, and $2,100.00 is for administration fees. As of June 8, 2016, as set out in Exhibit #38, the total amount of the arrears is $134,138.32. Mr. McMurter was ordered to pay and actually paid the following sums:

2009 - amount Mr. McMurter ordered to pay $2,439.00 x 5 months:

$12,195.00

2009 - amount Mr. McMurter actually paid:

$ 0.00

2010 - amount Mr. McMurter ordered to pay $2,439.00 x 4 months

plus $2,500.00 x 8 months = $9,756.00 plus $20,000.00:

$29,756.00

2010 - amount Mr. McMurter actually paid:

$31,300.00

2011 - amount Mr. McMurter ordered to pay:

$30,000.00

2011 - amount Mr. McMurter actually paid:

$ 100.00

2012 - amount Mr. McMurter ordered to pay:

$30,000.00

2012 - amount Mr. McMurter actually paid:

$ 0.00

2013 - amount Mr. McMurter ordered to pay:

$30,000.00

2013 - amount Mr. McMurter actually paid:

$32,500.00

2014 - amount Mr. McMurter ordered to pay:

$30,000.00

2014 - amount Mr. McMurter actually paid:

$19,368.18

2015 - amount Mr. McMurter ordered to pay:

$30,000.00

2015 - amount Mr. McMurter actually paid:

$ 6,608.50

60A chart form analysis of what Mr. McMurter paid and what he was ordered to pay on an annual basis since the divorce litigation commenced in 2008 is in Schedule A. When you compare Schedule A to Schedule E, his income, Mr. McMurter’s pattern of payments of spousal support do not correlate to his available income. I find his payments do, however, correlate with the enforcement proceedings by the FRO.

61In summary, and put in other words, Mr. McMurter never paid any of the interim spousal support ordered by Justice McLean on July 14, 2009 on a regular monthly basis. On June 3, 2010, almost two months after the consent Final Order of April 6, 2010 was made, Mr. McMurter paid $12,000.00. By the time of trial on April 6, 2010, he was $40,915. 00 in arrears. He then never paid the two $10,000.00 payments in May and June of 2010 as provided in the court ordered consent order. He did pay $17,000.00 on November 16, 2010 and then virtually nothing until he lost his constitutional challenge to the Family Responsibility Office’s enforcement legislation. In 2013, he made some $2,500.00 payments, then reduced it to $1,250.00, then reduced it to the $1,000.00 per month which he is currently paying through the Family Responsibility Office until the decision on this Motion to Change is released.

62Mr. McMurter’s arrears are now more than $134,138.32. He has continued to pay the $1,000.00 per month pursuant to his agreement with the FRO pending this decision, to hold off enforcement of the order by the FRO.

Mr. McMurter’s Employment History

63Mr. McMurter began working at a factory job. In 1988, he became a business man and he has worked in the construction industry ever since. Prior to starting McMurter Home Centre, he ran his own construction business beginning from 1988 to 1994, known as Jim McMurter Vinyl Sales. In 1993, he and Mrs. McMurter sold their jointly owned home in Foxboro and on November 10, 1993, they purchased vacant land on Highway #49 for $20,000.00 as joint tenants. A large 5,000 square foot commercial building was erected on the land with a $99,000.00 grant from Indian Affairs plus the proceeds of the sale of their home. Mr. McMurter started a very successful business, selling building supplies and building and renovation services. This included the sale of hardware and sundry items and more recently, the sale of cigarettes on the Territory of the MBQ. The business sells anything that is needed to complete a building project, as well as doing some supply and install work. Mrs. McMurter was employed in the business as the general manager. The business was the only building supply store on the Territory and had the advantage of being able to sell merchandise without payment of GST/HST.

64In 2006-2007, an addition was built onto the business building. Warehouse outbuildings were added including a two-storey building to store telephone poles. Mr. McMurter uses six older vehicles to operate his business: a 1977 fork truck, a 1980 fork truck, a 1993 5 ton truck for large lumber, a 2005 1 ton truck for lumber, a 2001 cube van and a 2003 cube van. The maintenance expenses for these vehicles are paid through his business.

65Mr. McMurter testified that his business has survived three recessions and he is still very much in business. He is a “survivor”. He started two other successful businesses, Hastings I.C.F., a Styrofoam block wall construction company and JM Developments, a real estate rental property company. The rental properties that he owns have mostly been acquired since April 6, 2010. Mr. McMurter is a skilful and resourceful business man. With increased competition in the building supply business, and a reduction in gross sales, he has wisely diversified his business. In spite of the reduction in recorded gross sales in his business, I find Mr. McMurter stills earns a substantial personal income from his business. His diversification has provided significant monthly rental income from his properties on the Territory which Mr. McMurter estimates at $3,550 per month or $42,600 per annum. He buys lots, and then puts trailers or mobile homes on them for rent. He tried to operate a restaurant at 68 Sadie’s Lane for two years, but it failed and turned into a money pit. Other efforts to use Sadie’s Lane for commercial purposes failed. Today, Mr. McMurter operates it is a men’s shelter, charging a lower amount of rent to help less fortunate men without a place to live on the Territory.

66In May 2012, Mr. McMurter merged Hastings I.C.F., formerly Hastings IntegraSpec, into McMurter Home Centre. In February 2014, Mr. McMurter merged JM Developments into McMurter Home Centre and now maintains only one set of books for all three of his businesses. Mr. McMurter testified that after he lost his accountant/bookkeeper in 2012, he decided to just have one business to simplify his record-keeping.

67Mr. McMurter’s evidence is that from 2007 to 2010 he would build 10 houses per year with his crew. In 2010 he only built a few additions. In 2012 he built a sixplex rental unit for the Band and in 2013 he built two houses. In 2010, he had nine employees and now he has three part time employees who come in as needed. He has begun to advertise on the radio to improve business. He testified his inventory is down to less than $100,000.00.

68Mr. Gregg Powless rents an office from Mr. McMurter at McMurter Home Centre. He testified that his business of drafting and building design was very slow from 2010 to 2013, but from 2013 onward he was moderately busy with additions and houses. Mr. Powless cited political issues on the Territory in 2010 as a reason for reduced business.

69Mr. Terry Brant is an electrician and works at McMurter Home Centre doing repairs and maintenance. He testified that he has fewer hours now than in 2010. He said business slowed down in 2011. He confirmed that his ill health has also contributed to his reduced hours at work.

70Mr. Kevin Maracle, who is in a relationship with Mrs. McMurter but not living with her, was called as a witness by Mr. McMurter. He testified that he has been a building contractor building new homes, additions, and garages since 1998. He also owns a landscaping business which he works at on weekends. He testified that he has done a massive amount of building and that he has not noticed any change in his volume of business. His volume of business and his income have not changed in the past 15 years.

71Mr. Maracle testified that he does not buy supplies from Mr. McMurter’s store, and purchases his supplies at bigger stores. He said he does not buy from Mr. McMurter as Mr. McMurter would bid and compete with him on jobs. Because he owned a building supply store, Mr. McMurter could undercut his price bid. He said Mr. McMurter had an unfair advantage which Mr. McMurter used to get jobs. This indicates that part of Mr. McMurter’s business is in fact supply and install work as submitted by Mrs. McMurter. Ex. #7(b) confirms that Mr. McMurter has paid contractors and bought large amount of building materials consistent with doing supply and install work.

72Mr. McMurter’s common law spouse plays no role in relation to his business.

73Mr. McMurter agreed in his testimony that his business income fluctuates with the economy.

Mrs. McMurter’s Employment History

74When Mrs. McMurter married she was a factory worker for Browns Shoes in Stirling at the Bata shoe factory. She began this job right after high school. This job allowed her to be at home with the children in the evenings. She worked there until the youngest child was 9 years old. She and her then husband first rented, then bought a mobile home and then bought a house together. In 1988, Mr. McMurter left his factory job and began work in the construction business. Mrs. McMurter worked on Mr. McMurter’s financial books and records in the evenings.

75In 1990, Mrs. McMurter quit her factory job and worked in Mr. McMurter’s Vinyl Sales business located on the Territory. They then sold jointly held property in Foxboro, Ontario and bought the vacant land where McMurter Home Centre is now located on the Tyendinaga Mohawk Territory as joint tenants in 1993. Buildings and outbuildings were constructed and the business opened in 1994. From 1994 to 2007, Mrs. McMurter worked in the business and was paid a salary as the general manager. She was able to have flexible working hours to look after the children’s needs and activities as they arose but generally worked 9 am to 5 pm. While Mrs. McMurter has no formal education in bookkeeping, she managed the business finances skilfully and was knowledgeable about the business, its record-keeping, and its operations over the 14 years that she worked in the business. Together, Mr. and Mrs. McMurter made a good team and the business thrived.

76Mrs. McMurter testified that in addition to her salary, all other bills for their joint personal use such as utilities, groceries, car payments, fuel and other joint expenses were paid directly by the business. This pattern of payments is shown in Exhibits 10 and 11 from the General Ledger Account for the business for 2005 and 2006, shown as Account Name “withdrawals Jim”, and “withdrawals Kelly”. In 2005, Mr. McMurter personally drew $135,499.79 from the business and Mrs. McMurter drew $23,259.85 for a combined personal draw of $158,759.64 or $79,379.82 each. In 2005, Mrs. McMurter’s income from the business was listed as $34,008.00 as wages plus drawings of $20,749.85 for a total of $54,757.85. A T-4 was prepared for the wages portion as Mrs. McMurter is entitled to contribute to C.P.P. In 2006, Mr. McMurter drew $76,825.85 and Mrs. McMurter drew $44,016.26 from the business for a combined personal draw of $120,842.11 or $60,421.05. In 2006, Mrs. McMurter’s income from the business was listed as $42,100.00 as wages plus drawings of $22,406.69 for a total of $64,506.69 tax-free income. A T-4 was prepared for the wages portion for C.P.P. Surplus funds remained in the account at the end of the year. These drawings are tax exempt.

77As a joint owner of the property, excluding the business, Mrs. McMurter was not paid any rent from the business to reflect her ½ ownership interest in the property. In 2007, Mrs. McMurter’s weekly salary was $660.00 per week. Mr. McMurter also took a weekly draw of $660.00 per week. All other personal expenses paid by the business were allocated as additional draws or personal income to Mr. McMurter as he was the sole proprietor of the business.

78After the separation in August 2007, Mr. McMurter fired Mrs. McMurter and paid her regular salary of $660.00 per week or $34,320.00 per annum for 5 months until the end of December 2007. After that date, he did not pay her a salary. In January 2008, Mrs. McMurter went back to school at Loyalist College to be a business administrator. She changed courses in September 2008 to be a construction engineering technician. Mrs. McMurter received some assistance from the Band for these courses. She withdrew from this last course in May 2009 as Mr. McMurter was not paying her any money and the toll of being in court repeatedly made concentrating on school work too difficult.

79Mrs. McMurter then obtained part-time employment on the Territory with Mr. Darran Green, who operated a sandblasting and painting business, and later she worked part-time at the Band office. In January 2010, she went back to school to be qualified as a real estate agent and received her licence in July 2010. She struggled and worked hard to build her real estate business in 2011, and found it difficult to break into this business, develop contacts and obtain listings. Mrs. McMurter sells real estate off the Territory through a real estate company based in Napanee. She now works days, evenings, and weekends at her two jobs. In 2012, she began to turn a profit and earn income from real estate sales. Since 2015, she has been selling real estate both on and off the Territory. Mrs. McMurter continues to work at the Band office on a part-time, as needed basis. She continues to manage her rental properties. These are her sources of income in addition to spousal support when received from Mr. McMurter.

Financial Disclosure

80The Family Law Rules provide a number of terms and penalties for failure of a party to provide full and complete financial disclosure. Rule 1(8) provides that if a person fails to obey an order of the court, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including and order for costs, and an order dismissing a claim.

81There is additional financial disclosure required in a Motion to Change support. Rule 13(5.0.1) 3. provides:

3. One of the following for each year for which the party is seeking to change or cancel arrears, as proof of the party’s income:

i. The party’s income tax return and,

A. the party’s notice of assessment and, if any, notice of reassessment, or

B. if a notice of assessment and a notice of reassessment are unavailable for the year, a copy of the Income and Deductions printout provided by the Canada Revenue Agency for the party.

ii. If the party is not required to and has chosen not to file an income tax return because of the Indian Act (Canada), some other proof of income. [emphasis added]

82At the conclusion of his case at trial, Mr. McMurter had not produced other proof of his income. No accounting evidence was called. I cautioned his counsel that if that was the totality of his financial evidence, he could anticipate a dismissal of his client’s case. I allowed Mr. McMurter to re-open his case to provide some other proof of income and financial disclosure in the interests of having this matter finally determined on the merits with the best evidence available. The parties had been litigating for nine years. It was only after the caution that anything at all was produced, and what was produced at trial for the first time was incomplete, unanalysed and woefully inadequate. What followed was a highly selective document dump by Mr. McMurter during the trial. Essential aspects of his financial status for various years were never disclosed.

83A “document dump” is defined by F.L. Myers J. in his decision of Manchanda v. Thethi, 2016 ONSC 3776, para. 27 as a practice whereby a party discloses a large number of disorganized documents so as to inflict cost and confusion for the receiving party.

84The lack of timely, organized, and meaningful financial disclosure in this case made the trial complex. Mr. McMurter continues to obfuscate his income and assets, making the task of determination of his income and assets more difficult. Mr. McMurter has failed to disclose his essential financial documentation to the court as required.

85Mrs. McMurter, being the former general manager of the McMurter Home Centre and being responsible for the finances, was very familiar with the books and record-keeping of her former husband’s business up to 2007 when they separated. Mrs. McMurter, assisted by her sister at trial, undertook a capable review of Mr. McMurter’s financial disclosure and was able to establish how deficient that disclosure was, even when Mr. McMurter was given the opportunity to make financial disclosure and productions during the trial.

86Mr. McMurter’s sworn financial statements are consistently and deliberately false as to what his personal annual income actually is. This left Mrs. McMurter to try and make sense out of the financial disclosure during the trial. This led to cumbersome calculations and review by Mrs. McMurter, Mr. Katz and the court. It tripled the estimated time for trial. Mr. McMurter as the moving party bears the onus of providing proper and adequate financial disclosure in a Motion to Change and he has failed to meet that onus.

87It is acknowledged that Mr. McMurter does not have to keep accurate accounting records for income tax purposes. He does, however, have to produce proper accounting records for his businesses for court purposes and some other proof of income as he is paying spousal support. From 1994 to 2006, Maria Amstutz from Mississauga did Mr. McMurter’s financial records. From 2006 until her retirement in 2012, Anne Foster, an experienced bookkeeper, kept his financial records. Prior to 2012, Mr. McMurter maintained separate books of account for his three businesses, McMurter Home Centre, Hastings I.C.F. and JM Developments.

88After the bookkeeper left in 2012, Mr. McMurter started doing his own books and printed off the information from his computer. Judy Mack, one of his employees helps him. He testified he merged all three of his business records into one, to make it “simpler”. Mr. McMurter is not an accountant. He failed to follow sound accounting practices after 2012 and the quality and reliability of his financial records from 2012 onwards are dubious. He failed to hire a qualified accountant or bookkeeper. He mixed his business expenses with his personal expenses. He accepted large cash payments on account and did not deposit them into the business bank account, and paid out expenses in cash from his till account. This is one way that Mr. McMurter, I find, hides his actual disposable income from the court. The court is left with his accounting records that were produced during the trial that are inaccurate, incomplete, and have not been reviewed or prepared by a qualified assessor. The court cannot be expected to do an accounting audit of his financial records in order to determine his true personal income. It is Mr. McMurter’s responsibility to satisfy the court of what his income is, if he expects the relief he is seeking of termination of the spousal support order. Mr. McMurter has failed to satisfy me that he is entitled to any variation of or termination of spousal support.

89At paragraph 14 of Manchanda v. Thethi, F.L. Myers J. held in citing Roberts v. Roberts, 2015 ONCA 450, at paras. 36-37:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.

90There have been a total of five orders either ordering disclosure or commenting that disclosure orders have not been complied with by Mr. McMurter in the S.C.J. since this litigation began in 2008: Byers J. February 8, 2011, Trousdale J. May 30, 2011; Robertson J. August 2, 2014; Tausendfreund J. January 16, 2014 and Trousdale J. January 11, 2016. Three of these orders were after the commencement of this current Motion to Change which was commenced April 13, 2013.

91Inferences are drawn against positions of parties who fail to meet their disclosure obligations. F.L. Myers J. at paragraph 8 of Manchanda v. Thethi quoted from Kiteley J. in Meade v. Meade (2002), 2002 CanLII 2806 (ON SC), 31 R.F.L. (5th) 88 (Ont. S.C.), additional reasons (2002) 1 R.F.L. (6th) 312 (Ont. S.C.), at para. 81:

Where disclosure is inadequate and inferences are to be draw, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.

92From the evidence before me in this trial on this Motion to Change, I draw adverse inferences against Mr. McMurter for the following reasons: he has not provided full and frank financial disclosure, his disclosure is inadequate, his disclosure is intended to mislead Mrs. McMurter and the court, he has significantly more income than he has disclosed, his assets are significantly more valuable than he has disclosed, his net worth is significantly more than what he has disclosed, he is in defiance of court orders, he has undisclosed cash dealings, and his financial statements are untruthful and blatantly false. I find one of the main reasons that Mr. McMurter has accumulated assets since 2010, is by not paying spousal support to Mrs. McMurter as ordered.

93Mrs. McMurter as a self-represented litigant, I find, has done her best to provide accurate and credible evidence on the material facts and financial matters in this case. She is neither a lawyer nor an accountant. She retained lawyers in the past, but could not afford one for the trial. She did her best and her presentation at trial with the assistance of her sister was prepared, skilful and well thought out. She worked in the McMurter Home Centre business for many years and understands its operations well. She possesses sound business knowledge and was able to analyse the material that was disclosed. I found her to be forthright and credible in her evidence. I prefer and accept her evidence where it conflicts with Mr. McMurter’s evidence on all material matters and all financial matters in this case.

94Where possible and available, I have relied on documents from independent, credible sources when analysing and assessing the financial matters in this case. The financial picture for Mr. McMurter has been pieced together from the evidence before me and when appropriate, by imputation of income due to his lack of financial disclosure. The parties’ income in 2009, leading to the basis of the April 6, 2010 Final Order, is the beginning point of the financial analysis to determine their incomes as at April 6, 2010. The parties’ net worth in 2010 and 2015 are also important to the analysis.

Net Worth Analysis 2010 and 2015

95It is important to assess and approximate the parties’ respective net worth at the time the Final Order was made in 2010 and currently in 2015 as one factor to consider in analysing Mr. McMurter’s claim that his income has significantly declined between 2010 and 2015, and that Mrs. McMurter is now self-supporting. I have used the parties’ financial statements that were sworn closest in date to the April 6, 2010 order for the 2010 net worth estimate and closest in date to the trial for the 2015 net worth estimate. I have adjusted the value of assets and debts in accordance with the best evidence that was before me, that I accept as being credible. These estimates are not intended to be exact, as there are no issues relating to a division of net family property in this case. Nonetheless, this type of review is important to the overall analysis in this Motion to Change as the increase in Mr. McMurter’s net worth is one of the central issues that Mrs. McMurter raises to challenge Mr. McMurter’s claim that his income has declined since 2010.

96Where the parties differ as to values, I prefer and accept the evidence of Mrs. McMurter as being credible. Mr. McMurter’s values I find were manifestly and deliberately false. One such example is Mr. McMurter’s value of his business property at 283 Highway #49 at $10,000.00 in 2008 and in 2016. That sum is ½ of the total amount of $20,000.00 that he and Mrs. McMurter paid for the land when they purchased it in 1993. No value whatsoever was included for the large business premises and outbuildings on the property as it is Mr. McMurter’s view that they have no value being situated on the Territory. This is in spite of receiving a $99,000 grant to construct a portion of the business premises.

97The relevant documents for the net worth analyses are the financial statements of Mr. McMurter sworn February 22, 2008, and his financial statements sworn April 30, 2015 and January 11, 2016. I have disregarded Mr. McMurter’s financial statement sworn March 25, 2009 as it states his income but his assets and net worth are shown as zero which is not true.

98For Mrs. McMurter, the relevant documents are her financial statement sworn February 8, 2008 and her financial statement sworn December 22, 2015. For the purposes of this analysis I have not included arrears of support, or legal fees expended by the parties. I have attributed the full value of 207 Bayshore Road to Mrs. McMurter as it was to be her property as a result of the Final Order in 2010 and is where she resides. I have referenced other evidence and documentary exhibits in this analysis as appropriate.

99I have not included the CRA lien for GST/HST from Mr. McMurter’s business on 184 College Street, Belleville, Ontario. This lien is disputed by Mr. McMurter and his evidence was that he is in the process of having it removed. The lien relates to GST/HST arrears from 1993 through 1997 and was in the original amount of $215,422.56. Recent confirmation from Mr. Katz in Exhibit #37 is that the lien has been removed from active collections by CRA and is now $685,807.92 with interest accruing at $84.37 per diem. Considering the evidence of Mr. McMurter that his business is GST/HST tax exempt, there is a serious issue of whether or not anything is owing.

100In March 2009, Revenue Canada conducted a review and concluded the debt was uncollectable. In any event, Mr. McMurter’s maximum liability if any is limited to his ½ share of the equity in the 184 College Street East, Belleville property, which was dealt with in the April 6, 2010 Final Order. Justice McKinnon found that the total equity was $64,000.00 making Mr. McMurter’s interest in the property $32,000.00. This property was to be transferred to Mrs. McMurter on terms that have not been complied with by Mr. McMurter. Mr. McMurter is otherwise judgment proof from CRA as all of his assets are on the Territory except the 184 College Street East, Belleville property. He has cashed in his life insurance policies and sold his Procter & Gamble shares. Mr. McMurter is otherwise tax exempt, seizure exempt and estate tax exempt from CRA as a result of the Indian Act. Importantly, I find, is that Mr. McMurter has no intention to repay this sum to the CRA.

101Mr. McMurter’s net worth in 2010, I find is $1,285,456. Mr. McMurter’s net worth in 2015, I find is $1,861,350. The result of this analysis is that Mr. McMurter’s net worth from 2010 to 2015 has increased by $575,894 as shown in Schedule B.

102Mrs. McMurter’s net worth in 2010, I find is $576,967.00. Mrs. McMurter’s net worth in 2015, I find is $735,259.00. The result of this analysis is that Mrs. McMurter’s net worth from 2010 to 2015 has increased by $158,292 as shown in Schedule C.

103The significant increase in Mr. McMurter’s net worth can be attributed largely to his acquisition of six new properties on the Territory since his marital separation in 2007. I have attributed and imputed values to these properties from the evidence that I accept as being credible and have estimated from the evidence what values are appropriate in 2010. The details of these properties are shown on Schedule D.

104Since April 6, 2010, the evidence is that Mr. McMurter has spent a minimum in cash of $52,500 on 68 Sadie’s Lane, $60,000 on Bell’s Side Road, $10,000.00 plus $13,000.00 on two vacant lots on Church Lane, $64,000.00 on 202 Church Lane and $100,000.00 on 192 Church Lane for a total of $299,500.00. Averaged over 5 years, this amounts to $59,900.00 per year of cash spending on property alone by Mr. McMurter.

105Mrs. McMurter submits that since 2008, as in Ex. #4, Tab 5, Mr. McMurter’s own year-end January 31, 2014 statement, that Mr. McMurter has spent $122,734 on Sadie’s Lane, $81,974 on 202 Church Lane, $140,574 on Bell’s Side Road on the buildings and $104,989 for the land for a total of $450,271. Added to that would be the cost of the two vacant lots on Church Lane for $23,000, and 192 Church lane of $115,000 for a grand total of $588,271. My analysis looked to the amount of money spent from 2010 and not from 2008.

106All of these properties are now mortgage and debt-free, except for 202 Church Lane, which has approximately $23,300.00 owing on a loan being paid monthly and that will be paid off in 2021. The balance of the increase in Mr. McMurter’s net worth between 2010 and 2015 is the increase in the equity of his properties.

107The total value of Mr. McMurter’s land holdings acquired since his separation in 2007 I find is $654,408.00: Sadie’s Lane $122,734.00; Bell’s Side Road $200,000.00, Church Lane vacant lot $10,000.00, 202 Church Lane $81,974.00 less loan of $23,300.00, Church Lane vacant lot and mobile home $13,000.00, and 192 Church Lane $250,000.00. The only asset which Mrs. McMurter has acquired since the parties’ separation is a boathouse located in Deseronto at 24 Yacht Club Lane which I find has a value of $6,000.00.

108Mr. McMurter now has significant rental income. In 2013, Mr. McMurter’s rental income was $18,600.00, in 2014 it was $40,520.00 and in 2015 it was $28,900. To be added to these figures is $4,800.00 per annum from Mr. Powless. Mr. McMurter has rented out an office on the business premises of McMurter Home Centre to Mr. Powless for $400.00 per month since 2005. Mr. McMurter has failed to disclose this income in his records. From 2005 to 2015, this rent adds up to an additional $52,800.00 of tax-free income to Mr. McMurter.

109I find that the rental income does not appear to be deposited into the BMO business account and is not included in gross sales of the business, but the expenses are paid by the business. In order to acquire these rental properties, Mr. McMurter’s income would have to be very significantly more than he has disclosed. I find that Mr. McMurter has not fully disclosed his income and that he deals in cash for which he has failed to account.

110While he does not have to account to CRA for his business income, he does have to account to the court and produce detailed financial records of his business, including all cash transactions in the till account, to satisfy the court in relation to his spousal support obligations if he expects any reduction in his spousal support payments.

111Mrs. McMurter’s increase in net worth can be attributed to the increase in value of her properties, a steady reduction of her debt, an increase in investments which she did not cash in and an increase in the cash surrender value of her life insurance policies.

112I draw the inference that Mr. McMurter’s present home was built using significant amounts of materials and supplies from McMurter Home Centre. Expenses for materials alone for this home totalled in excess of $90,000.00 at cost, not retail value. Mr. McMurter has not produced detailed financial records for the time period from 2010 to 2012 when he was building the home. He clearly had significant funds available to him that were not disclosed. His home is new and modern and is significantly more valuable than Mrs. McMurter’s duplex down the road.

113Mrs. McMurter’s home was purchased during the marriage on September 19, 1997 and is 17 years old. At the time of separation, photographs demonstrate that the home was rundown both inside and outside and in need of significant repair. The home had a significant mould issue. Mrs. McMurter’s evidence is that Mr. McMurter deliberately let the property get rundown even though he had the skills to properly maintain the home as he was a builder by trade. Mrs. McMurter was forced to duplex her home to be able to afford to continue living there and pay the utilities. She had to make repairs to the deck and entry doors before she and her tenants could safely enter and leave the property.

114I draw the inference that Mr. McMurter has used business supplies and materials to renovate and improve his rental properties that he has acquired without fully accounting for them through his business records for the court’s review.

Mr. McMurter’s Income 2010 to 2015

115Mr. McMurter’s income is from his business located on the Territory and is non-taxable. His business is not incorporated and it operates as a sole proprietorship. He has retained earnings at the end of his business year. This is his net profit over and above what he takes out of the business for his personal use. McMurter Home Centre is the name he uses to conduct business, but importantly, the business assets are one and the same as his personal assets. James Robert Gordon McMurter is one and the same as McMurter Home Centre. His on Territory income is attributed at a grossed up amount for the purposes of the analysis. It is appropriate to gross up his non-taxable income by a marginal tax rate to take into account what the effect would be if it were taxed, in order to equate the earning power to that of an individual who pays income tax for SSAG spousal support analysis purposes only. His income in 2009 is the basis of what his income was at the time of the April 6, 2010 Final Order for spousal support purposes. I have reviewed what financial material was produced to find evidence of his income and his pattern of business income to determine what his income was in 2010 and is now in 2015.

116I find Mr. McMurter’s 2010 income for spousal support was $156,942 per annum non-taxable, the equivalent of $258,024 of SSAG Guideline income grossed up for tax. I find his 2015 income for spousal support to be $156,351 per annum non-taxable, the equivalent of $255,404 of SSAG Guideline income grossed up for tax. This is a reduction in income in 2015 of $591 non-taxable, or $2,620 grossed up for tax, as compared to 2010. I find this is not a material change of Mr. McMurter’s circumstances.

117I specifically reject Mr. McMurter’s position that his 2010 income was $31,680.00 per annum non-taxable and that his current 2015 income is $34,056.00 per annum non-taxable.

118Mr. McMurter’s personal income on an annual basis is a combination of the net profits of his business McMurter Home Centre each year including all cash transactions, the retained earnings in the business at the end of each year as he is not incorporated, his drawings, his rental income and his personal expenses paid by the business on his personal behalf. He operates the business without any rental expense. While the business is located on jointly owned property with Mrs. McMurter, he does not pay Mrs. McMurter any rent.

119Both parties have filed in their Exhibit Books, at Exhibit #2, Tab 8 of Mr. McMurter’s Exhibit Book and at Exhibit #4, Tab 6 of Mrs. McMurter’s Exhibit Book, a summary of business income beginning in 2002, based on accurate historically correct information from 2002 to 2007, and projected income for 2008 and 2009, prepared by Welch & Company, chartered accountants. This document was Exhibit 1, Tab 6 before McKinnon J. The pattern of income, total sales, costs of goods and services, gross margins, expenses and net income of the business are important considerations, leading up to the determination of what Mr. McMurter’s personal income actually was in 2010 and 2015. As stated earlier, all income earned on the Territory is non-taxable to Mr. McMurter.

120The percentages shown are my calculations of total sales for analysis purposes. Mrs. McMurter’s salary is included in the business expenses deducted for the time period that she worked in the business. The net income shown is exclusively Mr. McMurter’s. Exhibits filed provide records for some cash, accounts receivable, inventory, work in progress, investments, and prepaid expenses and capital assets of the business, less bank debt, accounts payable and accrued liabilities. I have followed the pattern of the accountants’ summary for consistent reference in that the year-end from February 1, 2001 to January 31, 2002 is referred to as 2002 income, February 1, 2002 to January 31, 2003 as 2003 income, and so on.

121The consolidated statement provides the following information:

a. 2002: gross sales in Mr. McMurter’s business were $2,017,421; costs of goods $1,488,298 (73.8% of sales); gross margin $529,123 (26.2% of sales), business expenses, including wages $402,546 (19.9% of sales); and net income $126,577 (6.3% of sales).

b. 2003: gross sales in Mr. McMurter’s business were $2,475,632; costs of goods $1,899,527 (76.7% of sales); gross margin $576,105 (23.3% of sales), business expenses, including wages $393,147 (15.9% of sales); and net income $182,958 (7.4% of sales). Owner’s year-end equity: $504,902.

c. 2004: gross sales in Mr. McMurter’s business were $2,258,421; costs of goods $1,619,885 (71.7% of sales); gross margin $638,536 (28.3% of sales), business expenses, including wages $456,747 (20.2% of sales); and net income $181,789 (8.0% of sales). Owner’s year-end equity: $521,944.

d. 2005: gross sales in Mr. McMurter’s business were $3,025,539; costs of goods $2,176,999 (72.0% of sales); gross margin $848,540 (28.0% of sales), business expenses, including wages $580,602 (19.2% of sales); and net income $267,938 (8.9% of sales). Owner’s year-end equity: $655,392.

e. 2006: gross sales in Mr. McMurter’s business were $2,954,364; costs of goods $2,060,385 (69.7% of sales); gross margin $893,979 (30.3% of sales), business expenses, including wages $633,029 (21.4% of sales); and net income $260,950 (8.8% of sales). Owner’s year-end equity: $765,113.

f. 2007: gross sales in Mr. McMurter’s business were $2,502,505; costs of goods $1,753,073 (70.1% of sales); gross margin $749,432 (29.9% of sales), business expenses, including wages $581,181 (22.2% of sales); and net income $168,251 (6.7% of sales). Owner’s year-end equity: $774,500.

122I accept the historically accurate accounting records from 2002 to 2007 inclusive as being credible. Business was good, and there was no motivation not to keep good records while married. In fact, Mrs. McMurter kept the books. After the separation in 2007, however, things were very different. I do not accept that Mr. McMurter’s records are either accurate, reliable or that they fully disclose the true income of his business. Mr. McMurter has never produced the kind of financial documentation required, and I find his business deals significantly in cash for which there has been no accounting in his records. I find that Mr. McMurter’s motivation for the poor record-keeping and the lack of financial disclosure is his view that he should not have to pay spousal support after the dissolution of a 30-year marriage to Mrs. McMurter.

123I now turn to the business records and statements for the years 2008 to 2015 and note that 2008 is the first business year after the marital separation on August 25, 2007. This period of record-keeping is marginal at best. For some years, there is no information whatsoever. No business statements were produced for the years 2009, 2010 and 2011. Gross sales for those three years I impute at the average of gross sales in 2008 of $1,926,807 and 2012 of $1,704,683 for $1,815,745 as Mr. McMurter’s gross sales for 2009, 2010 and 2011. Imputation of amounts is required in this case when financial disclosure was not made. I have also referenced the amount of spousal support paid per year. Here is what Mr. McMurter says his income was for these years, and my assessment of his true income, as it can best be assessed from the evidence:

a. 2008: gross sales in Mr. McMurter’s business were $1,926,807; costs of goods $1,334,211 (69.2% of sales); gross margin $592,596 (30.8% of sales), business expenses, including wages $557,073 (28.9% of sales); and net income $40,033 (2.1% of sales). Owner’s year-end equity: $739,663. This drop in income on that volume of sales is historically inconsistent with all other years that Mr. McMurter has been in business, and I find is not credible.

b. 2009: Business statements not produced. Gross sales in Mr. McMurter’s business: imputed at $1,815,745; costs of goods: not disclosed; gross margin: not disclosed; business expenses, including wages: not disclosed; and net income: not disclosed. Established in the evidence is that he had $46,350.23 in the bank at the end of the year plus $4,800 of rental income from Mr. Powless. He swore a financial statement on February 22, 2008 that his business was worth $844,142. I have used that value as the value of the business closest to the April 6, 2010 date of the Final Order. I draw the inference that Mr. McMurter had business financial statements available to him to come up with that precise value, but chose not to produce them. He paid $0 in spousal support.

c. 2010: Business statements not produced. Gross sales in Mr. McMurter’s business: imputed at $1,815,745; costs of goods: not disclosed; gross margin: not disclosed; business expenses, including wages: not disclosed; and net income: not disclosed. He had $194,407.76 in the bank at the end of the year plus $4,800 of rental income from Mr. Powless. During the trial Mr. McMurter produced copies of his BMO business bank account for the calendar year 2010 to 2015. This was the only documentation produced and I find it does not reflect or confirm his total business income through his till or cash holding ledger accounts, which are not deposited into his business bank account. He paid $31,300 in spousal support.

d. 2011: Business statements not produced. Gross sales in Mr. McMurter’s business: imputed at $1,815,745; costs of goods: not disclosed; gross margin: not disclosed; business expenses, including wages: not disclosed; and net income: not disclosed. He had $4,800 of rental income from Mr. Powless. He spent $59,900 on his rental properties and his residence, being 1/5 of $299,500 spent over 5 years, which I impute to his personal income in that amount for each year of 2011, 2012, 2013, 2014, and 2015. He paid $100.00 in spousal support.

e. 2012: gross sales in Mr. McMurter’s business were $1,704,683; costs of goods $1,121,145 (65.8% of sales); gross margin $583,538 (34.2% of sales), business expenses, including wages $584,429 (34.3%); and net income $12,010 (0.7%). He had $38,507.31 in the bank plus $4,800.00 of rental income from Mr. Powless. He spent $59,900 (1/5 of $299,500) on his rental properties and his residence. His income is historically inconsistent on this volume of sales. He paid $0 in spousal support.

f. 2013: gross sales in Mr. McMurter’s business were $2,141,234; costs of goods originally $1,492,766 (69.7% of sales), but addition error corrected to $1,763,626 (82.4% of sales); gross margin $648,468 (30.3% of sales) corrected to $377,608 (17.6% of sales), business expenses, including wages $624,642 (29.2% of sales); and net income corrected to a loss of ($247,034) plus rental income of $23,400 for a corrected loss of ($223,634). He also had $25,615.38 in the bank. He had rental income as above of $18,600 plus $4,800 from Mr. Powless for a total of $23,400.00. Exhibit #28 is a copy of his computerized general ledger account for February 1, 2012 to January 31, 2013 and established that Mr. McMurter drew $20,766.27 from the business and paid $34,891.38 in legal fees in relation to his constitutional law challenge to the FRO legislation decided by Justice Deluzio. He spent $59,900 (1/5 of $299,500) on his rental properties and his residence. The loss of income is not reasonable on this volume of sales. He paid $32,500.00 in spousal support.

g. 2014: gross sales in Mr. McMurter’s business were $1,223,355; costs of goods $919,547 (75.2% of sales), corrected as Mr. McMurter’s statements have addition errors; gross margin $303,808 corrected (24.8% of sales), business expenses, including wages $540,328 (44.2% of sales); and net income loss of ($236,520). He had rental income of $40,520.00 plus $4,800 from Mr. Powless for a total of $45,320.00. Net income loss is then ($196,000). Exhibit #28 is a copy of his computerized general ledger account for February 1, 2013 to January 31, 2014 and established that Mr. McMurter drew $48,503.87 from the business plus had retained earnings of $64,535.31 for a total of $113,039.18. In March of 2014, Mr. McMurter stopped recording his weekly draw of $660 from this account, but was still receiving his $660 weekly draw, so that has to be added back to his personal income from April 1 to January 31, 2014 or $28,600.00 for 10 months, for a total of $141,639.18 in personal income. He spent $59,900 (1/5 of $299,500) on his rental properties and his residence. The loss of income is not reasonable on this volume of sales. He paid $19,368.18 in spousal support.

h. 2015: gross sales in Mr. McMurter’s business were $1,083,950 for 11 months. Grossed up for 12 months, I impute the gross sales for 2015 at $1,182,490; for 11 months, costs of goods $942,510 (87.0% of sales); gross margin $141,440 (13.0% of sales), business expenses, including wages $432,591 corrected to remove the FRO payment as a deduction (40.0% of sales); and net income loss of ($291,151). Rental income of $33,700.00 including the $4,800.00 from Mr. Powless totals a new net income loss of ($257,451). At Tab 8 of the trial record, Mr. McMurter swore a financial statement as at April 30, 2015. It shows a loss of ($35,422.00) but importantly, that his owner’s equity in McMurter Home Centre was $966,139 in 2015. I impute this value of his business as the current value in 2015 in relation to his net worth. Exhibit #28 is a copy of his computerized general ledger account for February 1, 2014 to January 31, 2015 and established that Mr. McMurter drew $32,729.77 from the business plus had retained earnings of $27,833.23, for a total of $60,563.00. In 2015, Mr. McMurter again stopped recording his weekly draw of $660 from this account, but still received $660 per week, so that has to be added back to his personal income in the amount of $34,320.00 for a total of $94,883.00 in personal income. He had rental income of $28,900.00 plus $4,800 from Mr. Powless for a total of $33,700. He spent $59,900 (1/5 of $299,500) on his rental properties and his residence. The loss of income is not reasonable on this volume of sales. He paid $6,608.50 in spousal support.

i. 2016: Business records were not yet available as at year-end January 31, 2016. Mrs. McMurter estimates the gross sales in Mr. McMurter’s business from a review of the bank deposits ledger 1110, which does not represent all sales through the cash register, are in the range of $1,319,000 to $1,343,000. Exhibit #28 is a copy of his computerized general ledger account for February 1, 2015 to January 31, 2016 and established that Mr. McMurter drew $14,466.73. He has virtually stopped using this account as it can trace his income. Mrs. McMurter traced his drawings and bills paid on his behalf and she estimated it totalled $73,850. In 2016, Mr. McMurter stopped recording his weekly $660 draw from this account, so that has to be added back to his personal income in the amount of $34,320.00 for a total of $48,786.73 in personal income. He stated that his wages are now coming out of the casual wage general ledger account and he is paid in cash and provides a receipt. No reasonable explanation was given for this change in payment of his wages. He has rental income which I impute at $40,000 plus $4,800 from Mr. Powless. No proof of rental agreements or leases was produced. The BMO bank statement for January 2016 was not available at the time of trial. He has paid $1,000.00 per month as per his agreement with the FRO.

124From 2002 to 2007, there was a healthy balance between the gross sales and the cost of sales. For the years 2009, 2010 and 2011 no business records were produced that would allow a review of gross sales, and expenses of sales, or a review of net income as a percentage of sales. I draw the inference that these years were very lucrative years for Mr. McMurter. Commencing in 2012 when some business records were again produced, there is a progressive dramatic and catastrophic change in pattern of his business that has significantly reduced the business’s net income and shows the business operating at a large deficit for years in a row. In 2015, Mr. McMurter’s drop in gross margin to 13.0% of sales is historically inconsistent and out of step with each and every other year he has been in business, which averaged gross margins of 28.6%. I find these business records to be unbelievable, unreliable, and dubious and are motivated by this litigation. These records do not reflect the true nature of Mr. McMurter’s income.

125These business records are inconsistent with other evidence and would make it impossible for Mr. McMurter to remain in business. They have not been reviewed by an accountant. The big box stores and the competition have been present for several years now. Yet, in business he remains, without any significant debt and he appears to enjoy a comfortable lifestyle. Importantly, during this period, Mr. McMurter is purchasing rental properties and renovating them to earn rental income. In March 2014, he started to take his weekly draw of $660 in cash and there is no accounting in is records for this holding account and his till account. Mr. McMurter is now dealing in cash, I find, in a deliberate attempt to minimize and hide his income in his effort to terminate spousal support.

126I draw the inference that all sales are also not being put through his records and that there are unrecorded cash sales in addition to the sales disclosed, and that his expenses are artificially inflated and that he is misleading the court. He claims a 4 year deficit for 2011, 2012, 2013 and 2014 of $775,496 in his business. There is no reasonable explanation that I accept as being credible to explain Mr. McMurter’s sudden large business losses, when in fact the economy is improving according to Gregg Powless and Kevin Maracle whom he called as witnesses. What financial material was produced does not support that he is in any sort of financial difficulty. There is similarly no reasonable explanation that I except as being credible for Mr. McMurter’s significant increase in his net worth between 2010 and 2015 if he is in such financial difficulty. It is therefore necessary to impute income to Mr. McMurter after consideration of the totality of the evidence in this case.

127A review of Mr. McMurter’s drawings account 3110, his cash holding account 1126, and other evidence of business expenses paid from the computerized ledger exhibits for Mr. McMurter’s personal benefit, provides another measure of Mr. McMurter’s true non-taxable income. When totalled up, I find these expenditures average at least $85,000 per year. Added to that is Mr. McMurter’s rental income of approximately $40,000 plus $4,800 from Mr. Powless which I am satisfied and find is not showing up in his business bank accounts or his accounting program in the actual amounts received, for a total of $129,800 non-taxable annual income. In addition, Mr. McMurter has not provided a general ledger statement for his till or cash ledger account 1115, to account for the significant cash transactions in his business.

128I have taken into account what his net income was in the business as a percentage of gross sales, before the marital separation when the records were more reliable. From 2002 to 2007, his net business income from the business averaged 7.7% of sales which I find to be fair and reasonable. Looking at business income from this perspective, in year-end January 31, 2008 of $1,926,807 in gross sales, his net business income would be $148,364.00. In 2009, 2010 and 2011 with gross sales of $1,815,745 imputed each year, his net business income would be $139,812 each year. In 2012, with sales of $1,704,683, his net business income would be $131,260. In 2013, with sales of $2,141,234, his net business income would be $164,875. In 2014, with sales of $1,223,355, his net business income would be $94,198. In 2015, with sales of $1,182,490, his net business income would be $91,051. Mrs. McMurter submits that in reviewing the general ledger produced during the trial, in 2016, Mr. McMurter’s gross sales are estimated at a minimum of $1,319,000 to $1,343,000 not including cash sales at the cash register. Mr. McMurter’s net business income would be $101,562 to $103,411 non-taxable. A net income percentage of 0.7% of gross sales as he claims in 2012 for example is grossly inconsistent, unreasonable and not worthy of belief.

129Added to his net business income in appropriate years would be his rental income, which I find is not being deposited into his business account or recorded in sales of the business. For each year, from 2005 to present, $4,800.00 is added to his income as rent received from Mr. Powless. Other income to be added as rental income received is as follows: 2012 - $5,200.00; 2013 - $18,600.00; 2014 - $40,520.00; 2015 - $28,900.00; 2016 – imputed at $40,000.00. When not disclosed, I impute Mr. McMurter’s annual rental income at a minimum of $40,000.00, not including the $4,800 from Mr. Powless.

130Considering all of the evidence in this case, it is not possible to review Mr. McMurter’s financial books and records from 2008 to 2015 and find them consistent with the other evidence in this case, including the print off of some of his general ledger accounts. I accept and rely on his business statements prepared from 2002 to 2007 as being accurate and reasonable and reflecting his true net business income. Post separation, his records from 2008 onwards do not accord with sound accounting practices. Three years of financial books and records, namely 2009, 2010, and 2011 are completely missing. Only partial records are available for 2012. His books and records have been left for others, including the court, to figure out. Having looked at the financial information from several different perspectives, based upon the best evidence available to me at trial, and considering the dismal state of Mr. McMurter’s accounting records and his lack of financial disclosure, I find that the most reasonable and fair assessment and determination of Mr. McMurter’s business income is calculated by using his net business income as a percentage of his gross sales, even though I am not satisfied that all of his gross sales are being recorded.

131As Mr. McMurter failed to disclose his income for 2009, 2010, and 2011 while being under a legal obligation to do so, I have imputed his income in those years to be 7.7% of his gross sales for those years at the gross sales amount of $1,815,745 in each of those years. That calculation determines Mr. McMurter’s business income in 2009, 2010 and 2011 to be $139,812. The onus is on Mr. McMurter to establish his income. Completely obscuring his income does nothing to establish lack of income, and requires the court to impute income.

132As held by Pazaratz J. in Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, the imputation of income is a determination of fact, not a guess and not a provisional amount while waiting for better disclosure or further review. It’s a number calculated by the court, because the court cannot rely on, or wait for, a payor to provide full and complete financial disclosure of his own income.

133As Mr. McMurter’s income fluctuates with the economy, I have used a three-year average approach to assess his income and approximated his gross up for tax.

134I therefore impute Mr. McMurter’s business income to be as follows:

a. 2007 Income: Business income of $168,251.00. Rental Income of $4,800.00. Total income: $173,051. Grossed up for income tax, his income is $288,084.

b. 2008 Income: Business income of $148,364. Rental income $4,800. Total income: $153,164. Grossed up for income tax, his income is $250,980.

c. 2009 Income: No disclosure. Imputed business income of $139,812. Rental income of $4,800. Total income: $144,612. Grossed up for tax purposes, his income is $235,020.

d. 2010 Income: No disclosure. Imputed business income of $139,812. Rental income of $4,800. Total income: $144,612. Grossed up for tax purposes, his income is $235,020.

e. 2011 Income: No disclosure. Imputed business income of $139,812. Rental income of $4,800. Total income: $144,612. Grossed up for tax purposes, his income is $234,456.

f. 2012 Income: Business income imputed at $131,260. Rental income of $5,200 plus $4,800. Total income: $141,260. Grossed up for income tax, his income is $227,076.

g. 2013 Income: Business income imputed at $164,875. Rental income of $18,600 plus $4,800. Total income: $188,275. Grossed up for income tax, his income is $314,076.

h. 2014 Income: Business income imputed at $94,198. Rental income of $40,520 plus $4,800. Total income: $139,518. Grossed up for income tax, his income is $225,060.

i. 2015 Income: Business income imputed at $91,051. Rental income of $28,900 plus $4,800. Total income: $124,751. Grossed up for income tax, his income is $195,504.

135As at January 31, 2016 fiscal year end, Mr. McMurter’s full business income was not known as the trial was taking place during the last month of his 2016 year end. From the general ledger and bank deposits reviewed, Mrs. McMurter estimated his gross sales were of at least $1,319,000 to $1,343,000, plus all cash sales. There will be rental income of at least $40,000 plus $4,800 from Mr. Powless. As spousal support is based upon the previous year’s income, this determination of income is not currently required.

136Mr. McMurter’s income varies with the economy. The fairest determination of Mr. McMurter’s income for 2010 and for 2015, I find, is his income averaged over the three years prior to 2010 and 2015 to determine an amount that is fair and reasonable in light of the fluctuation in his income. Schedule E provides in chart form what I have determined to be the parties’ income.

137Using a three year average, I find Mr. McMurter’s 2010 income for spousal support purposes is the average of three years of income for 2007 of $173,051, for 2008 of $153,164, and for 2009 of $144,612. I find that calculation determines Mr. McMurter’s income for 2010 to be $156,942 non-taxable. Grossed up for tax purposes, his SSAG Guideline income in 2010 is $258,024. Accordingly, I find his Guideline income at the time of the April 6, 2010 Final Order was $258,024 per annum.

138Using a three year average, I find Mr. McMurter’s 2015 income for spousal support purposes is the average of three years of income for 2012 of $141,260, for 2013 of $188,275, and for 2014 of $139,518. I find that calculation determines Mr. McMurter’s income for 2015 for spousal support purposes to be $156,351 non-taxable. Grossed up for tax purposes, his SSAG Guideline income in 2015 is $255,404. Accordingly, I find his Guideline income at the time of the trial for 2015 was $255,404 per annum.

139Using this same approach, his 2016 income for spousal support purposes is the average of three years of income for 2013 of $188,275, for 2014 of $139,518, and for 2015 of $124,751. I find that calculation determines Mr. McMurter’s income for 2016 for spousal support purposes to be $150,848 non-taxable. Grossed up for tax purposes, his SSAG Guideline income in 2016 is $244,880.

140So what other indicators of Mr. McMurter’s income are there? Mr. McMurter’s business records produced after 2008 contain many mathematical errors, and are without other proof of income. His financial records cannot be relied upon as being accurate for spousal support purposes. Some of the partial records produced from his general ledger do, however, provide entries that offer some confirmation of income. It is useful to compare these ledger amounts to the income imputed to Mr. McMurter in those same years of 2013, 2014 and 2015. While the printed ledger statements are incomplete and fail to account for significant cash transactions, they do show some measure of personal income for Mr. McMurter and are the best evidence available. As the ledger for 2012 only begins in the month of May, I begin in 2013 for which there is a full year of ledger entries.

141In 2013, an analysis of the income evidence by Mrs. McMurter of Mr. McMurter’s utility, cell phone, insurance, support payments, legal fees and miscellaneous bills paid by the business for his personal benefit plus his drawings total $119,542. In 2014 those same payments total $99,113 and in 2015 they total $80,233. Adding to those figures the rental income which I am satisfied is not included in the gross sales of his business for 2013 of $23,400, 2014 of $45,320 and 2015 of $33,700, his business income would be $142,942 in 2013, $144,433 in 2014 and $113,933 in 2015 all non-taxable. Mrs. McMurter’s analysis would have his income if averaged for three years at $99,629 non-taxable. Added to this, is any cash he may have taken from his till account for his personal use, which sum is unknown.

142My own analysis of the evidence of income for 2013 is rent $23,400, drawings $20,766, legal fees $34,891, $59,900 on his properties and $32,500 in spousal support payments for a total of $171,457. In 2014, rent $45,320, drawings $48,503 plus $28,600, retained earnings of $64,535, $59,900 on his properties and $19,368 in spousal support payments for a total of $266,226. In 2015 rent $33,700, drawings $32,729 plus $34,320, retained earnings of $27,833, $59,900 on his properties and $6,608 in spousal support payments for a total of $195,090. This analysis would have his income if averaged over three years at $210,924. Even backing out the rental income would make the three-year average $177,226 non-taxable. Cash that may have been taken from the business is unknown.

143For the 11 months from February 1, 2012 to December 31, 2012, $1,308,005 was credited into the BMO business account. In January 2103, another $74,369.37 was credited for total year-end credits of $1,382,374.

144Ex. # 7(d) is the printout of general ledger account 1110 Bank Withdrawals - History from June 28, 2013 January 31, 2016. It shows that between July 26, 2013 and September 29, 2015, Mr. McMurter paid the MBQ the sum of $26,695 as a tariff to be able to sell cigarettes on the Territory calculated at $3.00 per carton. The tariff funds are used by the MBQ to fund community projects on the Territory. This equates to 8,898 cartons of cigarettes or approximately 4,449 cartons per year that are being sold at McMurter Home Centre.

145Ex. # 7(c) is the printout of general ledger account 1110 Bank Deposits - History from January 2, 2013 to January 31, 2016. During this period, total credits to the BMO business account were $3,443,523.81 for 3 years, or approximately $1,147,841.20 per year. Withdrawals from June 28, 2013 to January 5, 2016 were $3,415,508.29 or approximately $1,138,502.70 per year. Without proper accounting statements related to the fiscal year-end date of January 31^st, this information tells us very little, other than Mr. McMurter is still very much in business. Credits into the bank account do not relate directly to sales for a given period as payments are often made later or in a different accounting year.

146In his financial statement sworn February 22, 2008, Mr. McMurter swore that his total monthly income was $660.00 per week, or $2,640.00 per month or $31,680.00 per annum. The evidence before me was that this was just his personal draw from his business, and not his total income. He swore his business was worth $844,142.00, and that his assets were $1,157,652.28. His debts were ½ of the mortgage on 184 College Street East, Belleville of $13,296.25 and a CRA lien for $500,000.00. His net worth was stated to be $513,296.27. He valued his business property at 283 Highway #49 at $10,000.00. I have found his 2010 net worth to be significantly more at $1,285,456. I have found his 2015 net worth to be $1,861,350. .

147Mr. McMurter has sworn many financial statements in this protracted litigation attesting to his annual personal income as follows: $31,680.00 on February 22, 2008; $55,515.00 on March 25, 2009; $62,940.00 on October 17, 2013; $31,752.00 on April 16, 2014; $34,056.00 on August 12, 2015; and $34,056 per annum on January 11, 2016 at the beginning of this trial. Mr. McMurter’s annual incomes as above are inconsistent with his business records which he says are accurate when compared to correlating years. It is patently false for Mr. McMurter to testify that his current income is his weekly draw of $660.00 per week or swear in his January 11, 2016 financial statement that his income is $34,056.00 per annum. His general ledger entries and the totality of the evidence in this case tell a different story.

148Another indicator of income is how the parties lived when they were together. The evidence of Mrs. McMurter was that they enjoyed a very comfortable lifestyle and income from the business before their separation in 2007. They each took a weekly draw of $660 for a total of $34,320 and most of their personal expenses were paid directly from the business. Mrs. McMurter’s evidence is that their true personal disposable incomes averaged $81,000 each plus their draw of $660 per week or $34,320 each for a non-taxable income of at least $115,320 each or a family total of $230,640 non-taxable income. Mrs. McMurter’s evidence on this is consistent with the financial records she produced and demonstrated draws of this nature when they lived together in 2006 and 2007.

149It is Mr. McMurter’s onus to prove on the balance of probabilities that he has had a material change of circumstances. No matter how I look at Mr. McMurter’s financial situation, I cannot find any supportable material change of circumstances in his income since the Final Order that would be the basis for a variation, let alone termination of spousal support. He has ample income to pay the current spousal support order and all of the arrears owing. Mrs. McMurter’s income is not sufficient to support herself.

150In 2010, Mr. McMurter should have been paying $6,622 per month in spousal support based on his averaged income of $258,024 and Mrs. McMurter’s income of $28,416 according to the SSAG calculations. In 2015 he should have been paying $7,953 per month in spousal support based on his averaged income of $255,404 and Mrs. McMurter’s averaged income of $37,264 according to the SSAG calculations set out in Schedule E. The presumption in the SSAG is that after 30 years of marriage, the parties incomes should be equalized, which I find would be appropriate in this case. The amount of spousal support at $2,500 per month is therefore very low, but was agreed to by Mrs. McMurter, and she does not seek an increase.

151The spousal support payments are not deductible from Mr. McMurter’s income as he does not pay income tax. The spousal support payments are not taxable to Mrs. McMurter for the same reason. This fact makes the $2,500 per month spousal support order understandable. I find the slight reduction of Mr. McMurter’s income from $258,024 in 2010 to $255,404 in 2015 is not a material change of circumstances. It was reasonably anticipated in 2010 that Mr. McMurter’s income would change with the economy. There are no grounds to vary the spousal support order of April 6, 2010 based on this change in Mr. McMurter’s income.

Mrs. McMurter’s Income 2010 to 2015, not including Spousal Support

152Mrs. McMurter’s income comes from both on the Territory and off the Territory. Her income earned on the Territory is non-taxable, and I have therefore grossed it up for analysis purposes. I have used Mrs. McMurter’s line 150 gross income from her income tax returns plus her on Territory income which I have attributed at a grossed up amount for the purposes of the analysis. It is appropriate to gross up her non-taxable income by her marginal tax rate to take into account what the effect would be if it were taxed, in order to equate the earning power to that of an individual who pays income tax. I have used her income in 2009 to determine what her income was at the time of the April 6, 2010 Final Order and for her Guideline income in 2010 for spousal support purposes. As Mrs. McMurter was not self-employed prior to 2010, I find it is not necessary to average her income for the three years prior to 2010.

153I find Mrs. McMurter’s 2010 income to be $25,577 per annum both taxable and non-taxable, the equivalent of $28,416 of SSAG Guideline income grossed up for tax. I find her 2015 income to be $34,699 per annum both taxable and non-taxable, the equivalent of $37,264 of SSAG Guideline income grossed up for tax.

154Mrs. McMurter has sworn many financial statements in this protracted litigation attesting to her annual income, not including spousal support as follows: $471.96 per annum on February 8, 2008; $35,745 on March 10, 2011; $34,967.76 on September 10, 2013; $39,376.68 on January 7, 2014; $47,966.64 on November 13, 2015 and $42,209.88 per annum noted for 2014 on December 22, 2015 (calculation error on statement corrected); and $44,118.96 per annum noted for 2015 on December 22, 2015 just before this trial. I accept that Mrs. McMurter’s failure to include her net rental income in her February 8, 2008 financial statement for that year was an oversight. She has been otherwise forthright about her financial situation over the years of this litigation.

155I find that Mrs. McMurter’s income since 2012 is subject to significant variation depending on how many hours she is assigned at the Band office, and the real estate market. I find Mrs. McMurter’s income should be averaged over her last three years of income from 2012, 2013 and 2014 due to fluctuations in the economy to provide the fairest assessment of her income in 2015. The average of her last three years of income I find provides the fairest and most reasonable amount of income based on her pattern of fluctuating income from year to year.

156Mrs. McMurter’s on Territory income comes from her former employment by Mr. D. Green, her variable part-time employment in the Band office, and more recently from rent from her residence on the Territory which she converted to a duplex, and from real estate transactions on the Territory. Mrs. McMurter’s off Territory income comes from some small investments, her two rental properties in Belleville, and her real estate sales off Territory. In reviewing her income tax returns filed in relation to her off Territory income, I find the deductions claimed from gross income from her real estate rental business and her real estate sales business to be reasonable, justifiable and for legitimate business purposes. I find Mrs. McMurter is doing everything she can to maximize her income earning potential and is investing in her future as a real estate agent to earn additional income.

157In 2009, Mrs. McMurter’s line 150 total gross income off Territory was $16,189, composed of small amounts of interest and dividends, and net rental income from her rental properties at 184 College Street East, Belleville, Ontario and 5 King George Square, Belleville, Ontario. Mrs. McMurter’s total income on Territory from working for Mr. D. Green was $9,388. Her total gross income from all sources was $25,577. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2009 for spousal support purposes is $28,416. Accordingly, I find her Guideline income at the time of the April 6, 2010 Final Order was $28,416 per annum.

158In 2010, Mrs. McMurter’s line 150 total gross income off Territory was $3,892 composed of small amounts of interest and dividends, net rental income from 184 College Street East, Belleville, Ontario and 5 King George Square, Belleville, Ontario. This year, Mrs. McMurter began to study and obtained her real estate licence at a significant cost of $5,650 to begin a new career. The fees, and time and effort that she spent to pursue this new career caused a significant drop in her income as she was operating at a loss without any income from sales initially, but with all the expenses of becoming a real estate agent. Mrs. McMurter’s total income on Territory from working for Mr. D. Green was $265. Her total income from all sources was $4,157. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2010 for spousal support purposes is $4,152.

159In 2011, Mrs. McMurter’s line 150 total gross income off Territory was $8,700 composed of small amounts of interest and dividends, net rental income from 184 College Street East, Belleville, Ontario and 5 King George Square, Belleville, Ontario. Mrs. McMurter’s total income on Territory was nil. Her SSAG Guideline income for 2011 for spousal support purposes is $8,700. In 2011 the mortgage came due on the rental property at 184 College Street East, in Belleville. Mr. McMurter refused to sign the mortgage renewal documents. As a result, Mrs. McMurter had to refinance her rental property at 5 King George Square in Belleville and had to pay a $5,000 penalty for refinancing.

160In 2012, Mrs. McMurter’s line 150 total gross income off Territory was $26,062 as she was now beginning to earn income as a real estate agent in the Napanee and Belleville area in addition to her previous usual sources of income. Her net real estate income included in that sum was $11,418. Mrs. McMurter’s total income on Territory from working part-time at the office for the MBQ was $8,012. Her total income from all sources was $34,074. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2012 for spousal support purposes is $36,096.

161In 2013, Mrs. McMurter’s line 150 total gross income off Territory was $26,461 and included her net real estate income of $18,085 plus her previous usual sources of income. Mrs. McMurter’s total income on Territory from working part time at the office for the MBQ was $3,295.51. In addition, in 2013, due to her difficult financial situation, Mrs. McMurter duplexed her house on the Territory to help pay the utility and other bills that she was struggling to pay. I find this forced her to live in very negative and diminished circumstances. She often had to leave her house to get away from the noise and the carrying on of her tenants. The rent Mrs. McMurter receives is all inclusive and her evidence was that she pays all of the expenses for the entire home.

162She could not move, sell or transfer the home as Mr. McMurter had refused to sign over his interest in the home, even though he was court ordered to do so. Her gross annual rental income from the other half of her 207 Bayshore Road home was $8,025 before expenses. This rental income comes with a cost for heat, utilities, water, repairs and maintenance, insurance, and capital improvements, but not property taxes and other municipal assessments. From her evidence and her most recent financial statement, I assess these expenses at a total of $800 per month or $400 for the other side of the duplex plus any repairs. Mrs. McMurter’s net income as a percentage of gross rental income received from her off Territory rental units from 2009 to 2015 from a review of her income tax returns was an average of 25%. Mrs. McMurter testified that her off Territory rental properties, however, required serious repairs and maintenance.

163Mrs. McMurter is entitled to some reduction in gross rental income for expenses for 207 Bayshore Road, as she pays all the expenses and utilities for the duplex. Her actual expenses for the duplex range between 50-60% of gross rent received. I assess and attribute 50% of the gross rent received from the duplex as being fair and reasonable in relation to deductible expenses for the duplex. I assess her on Territory net rental income after expenses therefore at $4,012.50. This brings her total income on Territory to $7,308.76. Her total income from all sources was $33,769. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2013 for spousal support purposes is $35,604.

164In 2014, Mrs. McMurter’s line 150 total gross income off Territory was $22,465 and included her net real estate income of $7,625 plus her previous usual sources of income. Mrs. McMurter’s total income on Territory from working part time at the office for the MBQ was $9,278.09. Her gross rental income from 207 Bayshore Road on Territory was $9,020 before expenses. I assess and attribute 50% of the gross rent received from the duplex as being fair and reasonable in relation to deductible expenses for the duplex. I assess her on Territory net rental income after expenses at $4,510. This brings her total income on Territory to $13,788. Her total income from all sources was $36,253. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2014 for spousal support purposes is $40,092.

165In 2015, the evidence of Mrs. McMurter’s income comes from her evidence at trial and from Exhibit #36. Mrs. McMurter’s line 150 total gross income off Territory was $18,522.04 which included an RRSP withdrawal of $4,493.34 and her net real estate income off Territory of $5,559.92, plus her previous usual sources of income. I have deducted and not included Mrs. McMurter’s RRSP withdrawal of $4,493.34 in her income. I find that this RRSP income is a one-time non-recurring amount that Mrs. McMurter required in order to support herself as she was not receiving adequate spousal support. To include this amount would not produce the fairest determination of her income. This income is excluded as non-repeating encroachment on her capital. Mrs. McMurter’s income off Territory is therefore $14,029. Mrs. McMurter’s total income on Territory from working part time at the office for the MBQ was $6,600. Her gross rental income from 207 Bayshore Road on Territory was $8,530 before expenses. I assess and attribute 50% of the gross rent received from the duplex as being fair and reasonable in relation to deductible expenses for the duplex. I assess and attribute her on Territory net rental income after expenses at $4,265.

166This year, Mrs. McMurter had real estate sales on the Territory for the first time, which are not subject to tax. Her gross on Territory sales in 2015 were $18,609.50 or 53%. Her gross off Territory sales were $16,359.50 or 47%. Her total gross real estate income was $34,969. This gross income comes with expenses. Mrs. McMurter’s total real estate expenses were $21,627.74 and were attributed in the same percentage as sales to on Territory and off Territory expenses. Her total net income from real estate was $13,341.26. From this sum $5,559.92 is deducted as being taxable income included in her line 150 income above, leaving her a net real estate income on Territory of $7,781.34. This approach and apportionment of her gross sales and expenses in her real estate business by the same percentage has been accepted by CRA in her recent 2015 Notice of Assessment and I find this to be a reasonable approach. I assess and attribute her net real estate income on Territory therefore at $7,781.34. This brings her total income on Territory to $18,646. Her total income from all sources was $32,675. When her non-taxable income on Territory is grossed up for tax purposes, her SSAG Guideline income in 2015 for support purposes is $38,100.

167Mrs. McMurter’s income from the real estate business and her part-time employment with the MBQ is highly variable and her income now fluctuates from year to year with the economy. In 2010, her income did not fluctuate to the degree that it does now. The fairest determination of her 2015 income is her income averaged over the last three years to determine an amount that is fair and reasonable in light of the fluctuation in her income. Mrs. McMurter’s income in 2012 was $36,096, in 2013 was $35,604 and in 2014 was $40,092. Mrs. McMurter’s last three-year average total income from 2012, 2013, and 2014 is therefore $37,264. Accordingly, I find her Guideline income at the time of the trial was $37,264 per annum.

168Mrs. McMurter’s income in 2010 was $28,416 and in 2015 was averaged at $37,264. In all the circumstances of this case, I do not find the amount of the increase in her income to be a material change of circumstances. At the time of the Final Order, Mrs. McMurter was working. I find that it was reasonably foreseeable at that time that she would continue to work and that her income would continue to increase. If it was known in 2010 that her income would increase to $37,264 by 2015, it would not likely have resulted in a different amount of spousal support being ordered considering Mr. McMurter’s actual income and assets at that time. Mrs. McMurter’s income has varied between 2010 and 2015, as has Mr. McMurter’s income which was expected at the time of the Final Order. Mrs. McMurter is not self-supporting and is unlikely to become self-supporting in the future.

169What is also of significance is the huge disparity in their incomes after 30 years of marriage where an equal sharing of income is considered reasonable and appropriate. Mrs. McMurter’s Guideline income in 2010 was 11.0% ($28,426 over $258,024) of Mr. McMurter’s. Her Guideline income in 2015 was 14.6% ($37,264 over $255,404) of Mr. McMurter’s. These percentages are far below any equal sharing of income. The addition of spousal support of $2,500 per month or $30,000 per annum, if paid, makes these percentages 22.6% in 2010 and 26.3% in 2015 and does not change the significant disparity between their incomes.

170In all of the circumstances, I find there are no grounds to vary the spousal support order of April 6, 2010 based on a material change of circumstances in Mrs. McMurter’s income.

SSAG Calculations for Spousal Support

171Mr. McMurter has asked the court to analyse the facts and circumstances in this case in accordance with the Spousal Support Advisory Guidelines. Schedule E provides the results of the analyses of the parties’ income which I have determined, attributed and imputed as the case may be, based upon the evidence which I found to be credible, from 2009 to and including 2015. I have provided the calculations for 2016 as it was part of the evidence in this case.

The Law on Material Change of Circumstances

172A material change of circumstances that would justify varying a spousal support order is “a change, such that, if known at the time, would likely have resulted in different terms”: see Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at para. 22.

173In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 34, 36-37, the Court affirmed the validity of the Willick test and emphasised that what amounts to a material change will depend on the circumstances of the parties at the time of the order. The change must have occurred since the making of the order, and the change cannot be merely a temporary one. The court should grant a variation only to the extent justified by the change.

174There have been a number of refinements to the test for material change in the past year. Since a finding of material change is dependent on the position of the parties at the time of the order, parties must provide the court with evidence of their position at that time: see Cohen v. Matlofsky, 2016 ONCA 29, at para. 8. Absent such evidence, the court cannot find that there has been a material change of circumstances. Events that took place prior to the making of a final order cannot constitute a material change of circumstances.

175The Final Order was made on April 6, 2010, on consent, pursuant to Minutes of Settlement. It is from that date that one determines whether or not there has been a material change of circumstances. It is not appropriate to go behind the Final Order. The existing order is assumed to be correct when granted and is not to be reviewed in a variation proceeding. Proof of a material change since then is required, otherwise the court has no jurisdiction to vary the previous Final Order. The Final Order will not be departed from lightly.

176The British Columbia Court of Appeal in Dedes v. Dedes, 2015 BCCA 194, 372 B.C.A.C. 70, at paras. 25-26, found that a chambers judge had erred in focussing on whether a change was reasonably foreseeable at the time of the order. The court held that the appropriate test is whether the change “was actually contemplated at the time of the order”. In coming to this conclusion, the court held that this threshold is meant to prevent parties from re-litigating issues that have already been considered by the courts.

177The Ontario Superior Court of Justice in Hickey v. Princ, 2015 ONSC 5596, 127 O.R. (3d) 356, at paras. 74, 77, recently held that “means” includes income-earning capacity, not only the amount of income the party actually earns. In this case, the court rejected the argument that an unforeseen change to a former spouse’s income due to early retirement amounted to a material change of circumstances, noting that, in considering means, a court should also consider the capital assets and pecuniary resources of the party.

178I am satisfied on the evidence before me that Mr. McMurter does have the ability to make the ongoing monthly spousal support payments, and payments on the arrears as ordered by Justice McKinnon. Mr. McMurter has been a businessman since 1988. He has survived three recessions and is still very much in business. Mr. McMurter has not produced any evidence of his business income for the years 2009, 2010 and 2011, and only partial information for other years. Mr. McMurter consented to the dismissal of a previous Motion to Change on August 2, 2011.

179Mrs. McMurter’s position is that Mr. McMurter only pays spousal support when he wants something from the court. I agree. There is some direct correlation between the litigation history, the court proceedings, the Default Hearing proceedings, and Mr. McMurter’s support payments. The pattern of payment does not correlate to any significant change in Mr. McMurter’s business income, or fluctuation in his business income, sufficient to establish any inability to pay on the part of Mr. McMurter. The pattern of payment correlates most to the enforcement of the Final Order by the FRO. The inference I draw from this pattern is that Mr. McMurter can well afford to pay the spousal support ordered, and the full amount of arrears. He simply chooses not to pay.

180Because Mrs. McMurter had virtually no income, she was forced to do whatever she could to obtain additional income in order to support herself, including using her savings. She sought employment. She worked on the Territory to earn some additional income for Mr. Green and in the Band office. In 2008, she went back to school with the assistance of a Band grant to upgrade her education to obtain employment, which did not happen. In 2010, she again went back to school to obtain her real estate licence. She began to work selling real estate off the Territory in the Napanee area. More recently, she is selling properties on the Territory as well, and she is able to earn tax-free income that those sales provide.

181At trial, Mr. McMurter seeks a reduction of spousal support from January 1, 2011 to December 31, 2014, and termination of spousal support thereafter. I can find no basis for making any kind of variation to the spousal support order in 2010 after the April 6, 2010 Final Order, or in 2011 and 2012, for a number of reasons. The financial material produced by Mr. McMurter for those years is woefully inadequate and in fact virtually non-existent for 2009 to 2011 and cannot support any kind of reasoned financial analysis. In 2012, only partial financial information was produced, and it was produced reluctantly during this trial. The inference I draw from the years where no financial information or limited financial information was produced is that these were exceptionally high income financial years for Mr. McMurter. He built his new home, acquired other rental properties and his net worth significantly increased. The lack of financial disclosure for these years was blatant and deliberate, even when court ordered.

182In addition, Mr. McMurter’s earlier August 2, 2011 Motion to Change was dismissed by order of Justice Robertson on consent on February 25, 2011. I can see no reason to go behind the date of that order of dismissal.

183The general rule as well is that a variation order, if granted, is effective from the date of the commencement of the application. I can see no good reason not to follow that general rule in this case. In any event, the pleadings in this Motion to Change request a variation from August 1, 2013. Any variation considerations in this Motion to Change shall therefore be limited to the time from the commencement of this Motion to Change on April 14, 2013 onward to the date of trial.

184For the relevant years of 2013, 2014, and 2015, there are significant deficiencies with Mr. McMurter’s financial disclosure. It is expected is that Mr. McMurter would have filed full and complete financial statements for his businesses in an organized fashion for analysis by the court with supporting bank records, including an accounting for cash receipts and expenses paid. No supporting financial material was produced at all in advance of this trial. During the trial, Mr. McMurter produced some, but not all, of his original general ledger documents from his business at the insistence of the court. The productions came daily as the issues were raised in the evidence. Mr. McMurter’s business statements are not done in accordance with standard accounting principles and include categories of business deductions that are clearly personal, such as the amounts he has paid to the FRO for spousal support and legal fees in relation to his personal matrimonial litigation. His business income is his personal income. He pays personal expenses out of his business income, which then have to be attributed back to his personal income.

185Mr. McMurter does not pay income tax, so the blending of his business and personal expenses let him know how he is doing financially on both a business and personal basis. These personal expenses, however, have to be backed out and then re-analysed to determine his true business income and expenses, and then his true personal income for spousal support purposes. Of concern is the evidence which I accept as credible that Mr. McMurter deals significantly in cash in his business through his till account 1115 in the thousands of dollars.

186These thousands of dollars are paid into the till account and then transferred back and forth from the cash holding ledger account 1126 and into and out of the till ledger account 1115. Mr. McMurter testified that the till account is now used for operational expenses, employees’ wages, bills, and his personal draws or wages without ever going through the business bank account. Mr. McMurter testified that this was done to save employees from having to pay E.I. and C.P.P., which I find would be contrary to their best interests. From January 2, 2015 to May 2, 2015, employees’ wages were paid out of the BMO business bank account general ledger account 1110. Many cheques were written on account 1110 to undisclosed recipients. From May 14, 2015 to December 23, 2015 wages were paid in cash from the wages general ledger account 5330. There is cash in the wages general ledger account 5330 that is unaccounted for. Payments are now coming out for wages according to Mr. McMurter from his till account 1115. I draw the inference that Mr. McMurter operates a significant portion of his business on a cash basis as a method of hiding his income. No documentation for this till general ledger entry account 1115 was provided either before or during trial. Only the ledger account for 1126 was produced. Large amounts of money were being transferred from account 1126 to account 1115 with no details as to who was being paid.

187I accept Mrs. McMurter’s evidence in analysing the cash holding account ledger account 1126, that in year-end January 31, 2013, $5,795.00 went from the cash holding account 1126 into the till account 1115; in year-end January 31, 2014, $76,481.35 went from the cash holding account 1126 into the till account 1115; in year-end January 31, 2015, $42,350.00 went from the cash holding account 1126 into the till account 1115 and in year-end January 31, 2016, $122,469.05 went from the cash holding account 1126 into the till account 1115. Mr. McMurter provided no reasonable explanation of where the money went, or why the use of cash is escalating since 2013 from $5,795.00 to $122,469.05 in his business.

188The lack of full and complete disclosure of Mr. McMurter’s business income in my view is deliberate, and designed to frustrate the court process and to delay and deny Mrs. McMurter’s spousal support claim. His bookkeeping and business practices and cash dealings are not improper if he did not have to pay spousal support. If Mr. McMurter expects to have a court accept what his income and assets are for support purposes, then he is required to keep proper and complete financial records, and provide proper financial disclosure which he has failed to do.

189The facts of this case clearly demonstrate that this case is not about Mr. McMurter’s inability to pay. This case is about Mr. McMurter’s refusal to pay what he was ordered to pay. Mr. McMurter can well afford to pay the current spousal support order and all the arrears. He can well afford to pay now, and he could well afford to pay since 2010. He chooses not to pay.

190There are several indicators of Mr. McMurter’s ability to pay spousal support. Mr. McMurter’s ability to pay spousal support as ordered is reflected in the increase in his net worth since 2010 to 2015 by $575,894, of which I have found $299,500, or $59,900 per year for 5 years, to be an outlay of cash spent on acquiring and improving his rental properties and his residence. Other indicators of Mr. McMurter’s ability to pay are the increase in his owner’s equity of his business, his net income compared to his gross sales, the amount of cash that has been established in the evidence to have been spent by him or for his personal benefit in a given year, and his retained earnings shown in the print out of the general ledger that was produced at trial.

191I find that there has not been a material change of circumstances of either Mr. or Mrs. McMurter proven on the balance of probabilities to warrant a variation or termination of the April 6, 2010 spousal support Final Order of $2,500 per month.

Security for Spousal Support Arrears

192Mrs. McMurter has asked that I provide in this Judgment for the enforcement of arrears of spousal support, and for security for those arrears, as against Mr. McMurter’s properties situated on the Territory.

193Rule 26(2) of the Family Law Rules provides that, “in addition to any other method of enforcement provided by law”, an order can be enforced as provided in subrules (3) and (4), which provide:

PAYMENT ORDERS

(3) A payment order may be enforced by,

(a) a request for a financial statement (subrule 27 (1));

(b) a request for disclosure from an income source (subrule 27 (7));

(c) a financial examination (subrule 27 (11));

(d) seizure and sale (rule 28);

(e) garnishment (rule 29);

(f) a default hearing (rule 30), if the order is a support order;

(g) the appointment of a receiver under section 101 of the Courts of Justice Act; and

(h) registration under section 42 of the Family Responsibility and Support Arrears Enforcement Act, 1996.

OTHER ORDERS

(4) An order other than a payment order may be enforced by,

(a) a writ of temporary seizure of property (subrule 28 (10));

(b) a contempt order (rule 31); and

(c) the appointment of a receiver under section 101 of the Courts of Justice Act.

194Section 6(7) of the FRSAEA provides that no person other than the Director of the Family Responsibility Office shall enforce a support order that is filed in the Director’s office. Mrs. McMurter’s spousal support order is properly filed with the Director for enforcement. This means that the Director has exclusive jurisdiction to enforce the arrears owing under the April 6, 2010 order for spousal support.

195This enforcement has resulted in the loss of Mr. McMurter’s driver’s licence on more than one occasion, which is a significant motivating factor in getting him to pay spousal support. He has been ordered incarcerated on a number of occasions, which has not happened for unknown reasons.

196As I have said earlier, McMurter Home Centre is the name he uses to conduct his business. The assets of the business are legally one and the same as those of James Robert Gordon McMurter personally. These assets are “real and personal property of an Indian” under the Indian Act and fall with the s. 89 exception. They could be used by the FRO acting on behalf of Mrs. McMurter, to help recover her support payments but only if the FRO considers it advisable to do so. It is up to the Director of the FRO as to how he/she wishes to proceed. I make no order in relation to enforcement of the arrears.

197Mrs. McMurter may withdraw her order from the Director’s Office at the FRO if she considers it advisable to do so at any time in the future. As the order is filed with the FRO, I make no order as to enforcement or security for the spousal support arrears.

Security for Future Spousal Support Payments

198Mrs. McMurter seeks an order that provides security for her ongoing future spousal support payments as against Mr. McMurter’s Certificates of Possession to properties situated on the Territory, considering the poor payment history of Mr. McMurter. I agree security is warranted in this case. Mrs. McMurter’s spousal support payment after 30 years of marriage is considered to be payable indefinitely. In determining what amount of security may be appropriate, I have looked at what the value of a lump sum order of support would be in the circumstances.

199The SSAG Guidelines for a lump sum spousal support payment use a formula that adds Mrs. McMurter’s age at separation of 49, plus years of cohabitation of 30 for a duration period of support to age 79. The SSAG formula generates a midpoint lump sum amount of $1,204,366 using actual incomes from 2015. The SSAG calculations include an auto gross up of a non-taxable income component which does not apply to Mr. or Mrs. McMurter. In 2015, it is 9 years post separation, and Mrs. McMurter is 57. The potential remaining duration period of spousal support is 22 years. The total amount for 22 years x $30,000 per year is $660,000 on a straight non-taxable basis. Discounting this amount for normal contingencies, I find that the sum of $400,000 for security for her spousal support order is fair and reasonable.

200The variation proceeding as to spousal support has been brought pursuant to the terms of the Divorce Act, and is governed by that legislation in addition to the Family Law Rules and the Courts of Justice Act, R.S.O. 1990, c. C.43.

201Section 15.2(1) of the Divorce Act provides that the court can require a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Section 15.2(3) of the Divorce Act provides that the court may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just. Section 17(3) of the Divorce Act provides that the court may include in a variation order any provision that under the Act could have been included in the order in respect of which the variation order is sought.

202In Trick v. Trick (2006), 2006 CanLII 22926 (ON CA), 81 O.R. (3d) 241, the Ontario Court of Appeal held that the Divorce Act gives the court the jurisdiction to secure and pay support. In Long v. Long (1993), 1993 CanLII 7276 (AB KB), 147 A.R. 108 (Alta Q.B.), it was held that because of this specific authority to secure payment of support, an order securing payment is like a receivership order and is in the category of securing orders that also contain mortgages, bonds, pledges and the like. Justice Veit held at para. 20 that the word “secure” has a meaning of “to assure of payment, performance or indemnity [or to] make (a creditor) certain of receiving payment, by means of a mortgage, bond, pledge or the like”.

203In Trick v. Trick, at para. 16, Lang J.A. held that s. 100 of the Courts of Justice Act does not provide stand-alone jurisdiction to grant a vesting order under the Divorce Act, and only provides a mechanism to vest title to a property of which there is a separate, valid claim to ownership. A vesting order is not listed as being available for enforcement under the Family Law Rules. The Court of Appeal did find at paras. 25-28 that the Divorce Act does give the court jurisdiction to secure a spousal support order and that the Divorce Act provides the Courts of Justice Act s. 100 authority to “encumber” an asset.

204In the Trick case, a vesting order was denied as offending the Pension Benefits Act. However, Lang J.A. held that a vesting order may still be available in equity. At para. 28, she held that such an order for security arguably could provide the necessary additional authority upon which to found a subsequent Courts of Justice Act s. 100 vesting order, because the order could be interpreted as providing the “authority” to “encumber” property. As that analysis was not pursued in Trick, the court left the door open for that argument to be made.

205Section 100 of the Courts of Justice Act, s. 100 provides that a court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed. I find that Trick v. Trick allows in equity for the additional authority to encumber property in proceedings under the Divorce Act by way of a vesting order under s. 100 of the Courts of Justice Act particularly if the amount of the “encumbrance” exceeds the value of the property to be vested and is otherwise appropriate in the circumstances of the case.

206In Boisvert v. Boisvert (2007), 2007 CanLII 24073 (ON SC), 40 R.F.L. (6th) 158 (Ont. S.C.), at paras. 78-79, 82-94, Whitten J. provided security for spousal support against the payor’s interest in the matrimonial home, as it was the only viable means of ensuring payment.

207The bases for an order for security include the refusal of the payor to pay support, and lying to the court about one’s income. Mr. McMurter has done both in this case. He has refused to pay court ordered support when he has the financial means to pay support, and he has lied about his income. I find that granting security to secure Mr. McMurter’s spousal support obligation is the only viable means of ensuring payment.

208The FRSAEA enforcement legislation, the Family Law Rules and the Divorce Act must be read in conjunction with the Indian Act. Section 18 of the Indian Act provides that reserve lands are held for the use and benefit of Indians for which they were set apart. Section 89 of the Indian Act provides that the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band. The MBQ on the Tyendinaga Mohawk Territory, rely on the land regime provided in the Indian Act.

209Title to the land in the Territory is held by the Crown for the use and benefit of the First Nation. There is no fee simple ownership of any portion of reserve lands by individual band members or others. The reasoning behind this policy is to ensure that reserve lands cannot be transferred to non-band members by an individual band member acting alone. The reserve lands are to remain set apart for the benefit of the First Nation regardless of the wishes of any individual band member.

210Individual band members are, however, able to obtain interest in homes and land on the Territory through the Indian Act. When a Certificate of Possession is transferred to a qualifying band member, it must first be approved by the band council, and then it is forwarded to the Minister of Indian Affairs and Northern Development. A Certificate of Possession is provided for in s. 20 of the Indian Act. The recording of the Certificates of Possession in the Reserve Land Register, maintained by the Crown, is provided for in s. 21 of the Indian Act. Section 29 of the Indian Act provides that reserve lands are not subject to seizure under legal process.

211Mrs. McMurter relies on the decision of Tranmer J. in Mohawks of the Bay of Quinte v. Brant, 2013 ONSC 4733, 117 O.R. (3d) 64. The Mohawks of the Bay of Quinte were successful in obtaining an order against Andrew Clifford Maracle, also known as Sir Andrew C. Miracle, a member of the Mohawks of the Bay of Quinte, allowing the Band to seize and execute upon the “real or personal property” of Mr. Maracle that is situated on the Territory to enforce a debt owed by Mr. Maracle to the Band. At paras. 54 and 55, Justice Tranmer held that Mr. Maracle’s property interest in the lands was “real or personal property” of Mr. Maracle situated on the reserve.

212Tranmer J. relied on the Supreme Court of Canada decisions in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285, and Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85, to provide a historical review of the issues. At paras. 19 and 20, Tranmer J. reviewed the position of the Indian Lands Registrar, whose counsel appeared before him, and whose position he accepted. In summary, he held that s. 29 of the Indian Act prohibits the seizure of lands, the underlying title of which is held by the Crown, by a non-Indian. There is an express exception to this no seizure rule in s. 89(1) in favour or at the instance of an Indian or a band. The real property interest of an Indian or a band is a possessory one, by way of a Certificate of Possession, and that is what is referred to in s. 89(1) as the real property of an Indian or a band situated on a reserve. This is the meaning of the distinction between the words “[r]eserve lands” in s. 29 and “real property of an Indian or a band situated on a reserve” in s. 89(1). The underlying title to the lands, which is held by the Crown, is preserved in s. 29.

213There are no constraints placed on the ability of an Indian to charge, pledge, mortgage, attach, levy, seize, distress, or execute against the property of another Indian under s. 89 of the Indian Act. Further, the Indian Act does not prohibit a band from transferring or dealing with reserve lands with a member of the band, or does not prohibit one member of the band transferring or dealing with reserve lands with another member of the band, subject to the consent of the Minister. The legislation clearly provides for an Indian to charge, mortgage, seize and execute upon the real or personal property of another Indian that is situated on the reserve. The Indian Act provides that the “real and personal property of an Indian” is not the same as “reserve lands” or lands “situated on a reserve”.

214Tranmer J, held at para. 39 that an Indian may only possess a Certificate of Possession in respect of reserve lands or lands situated in a reserve. A Certificate of Possession is not reserve lands or lands situated in a reserve, but it is either real or personal property of an Indian.

215The Mohawks of the Bay of Quinte v. Brant case was the first time I believe that a Band had been successful in having a court order enforced against a member of a band to transfer Certificates of Possession held by that member, back to the band, to enforce a debt for monies owed by the member to the band, relying on s. 89 of the Indian Act.

216In Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324, and in Derrickson v. Derrickson, the issue was the parties’ rights of ownership or to possession of lands and homes on a reserve in the family law context as between spouses, and the conflict between the Indian Act and provincial legislation for a division of net family property. In those situations, the provincial legislation must be read down in favour of the Indian Act.

217These cases are not authority for the proposition that the jurisdiction of the Ontario Superior Court is ousted in regards to the Indian Act or equitable principles. These cases are also not authority for the proposition that a member of a band cannot enforce a court order against another member of the band in a matrimonial cause under the Divorce Act. Mrs. McMurter does not seek a division of assets, or possession of property as a spouse or former spouse under any provincial legislation. What she seeks is security for payments of money owed to her as an Indian, by another Indian, her former husband, under the Divorce Act, pursuant to s. 89 of the Indian Act.

218Mrs. McMurter, as an Indian, is in the position of being entitled to security for monies owed to her by Mr. McMurter, also an Indian, and as such, it is her position that she falls within the exception contained in s. 89 of the Indian Act, just as the Band did in the case of the Mohawks of the Bay of Quinte v. Brant. I agree. The Certificate of Possession is either real or personal property of an Indian and is therefore subject to seizure and execution by an Indian. Mrs. McMurter seeks an order similar to the one made by Tranmer J. and asks for a charging order, or “charge” as security for her spousal support under the Divorce Act on Mr. McMurter’s Certificates of Possession for certain properties, subject to approval by the Band and the Minister.

219Fairness in law requires that legal rights created for an Indian and execution in favour or at the instance of an Indian under s. 89 of the Act are to be afforded a legal process to obtain a remedy. The real and personal property of an Indian should be protected from the general public, but not from another Indian. I believe this may be the first case where this order has been sought by an Indian against another Indian, within the same exception in s. 89 of the Indian Act relied upon before Tranmer J. by the Band of the MBQ. As in that case, just because it has not been ordered before, does not mean that the order cannot be made.

220I find Mr. McMurter’s Certificates of Possession to his properties, as set out in Schedule F to this order, are real and personal property of an Indian and can be subject to a charge in favour or at the instance of Kelly Ann McMurter, an Indian under the Indian Act, subject to the approval of the Band and the Minister.

221The MBQ pursuant to the same exception in s. 89 of the Indian Act, obtained an order in the S.C.J. against Mr. Maracle (Miracle) requiring him to complete the necessary documents required to transfer his Certificates of Possession to certain properties to the MBQ and to submit those documents to the Indian Lands Registrar. If he failed to comply, he was deemed to have consented to and to have authorized the transfer of the Certificates of Possession to those properties. Any documents required to give effect to this transfer could be completed by the Band on Mr. Maracle’s behalf and submitted to the Indian Lands Registrar. Ultimately, the Band obtained a transfer of Mr. Maracle’s Certificates of Possession for his properties to the MBQ, an order for sale, an order for vacant possession, an order prohibiting interference with the occupation of the property by the MBQ, an order prohibiting interference with the auction sale of the property, and if necessary an order for police assistance from the Tyendinaga Police of the O.P.P. The Indian Lands Registrar did not dispute that the court could direct Mr. Maracle to initiate the process required to transfer his Certificates of Possession to the Band, but the final approval was within the Minister’s exclusive discretion. There is nothing in the Indian Act that prevented Mr. Maracle from being directed by the court to transfer land to the Band in order to settle the private dispute between the parties.

222Tranmer J.’s decision was upheld by the Ontario Court of Appeal in the case citation of Mohawks of the Bay of Quinte v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561. Only Mr. Maracle (Miracle) appealed. Leave to appeal to the Supreme Court of Canada was denied. After a 20-year dispute, the matter was finally concluded. Mrs. McMurter’s dispute has been ongoing for nine years.

223In Mohawks of the Bay of Quinte v. Brant, LaForme J.A. held there is nothing in the Indian Act that ousts the jurisdiction of the Ontario Superior Court to make an order requiring a member of the MBQ to complete the necessary documents to transfer his interest in his Certificates of Possession. This was found to be consistent with the Indian Act. Relying on that authority, I can see no impediment to order Mr. McMurter to attend and complete all necessary documents to charge his Certificates of Possession as in Schedule F by way of posting security, which then properly provides Mrs. McMurter with a method to secure her spousal support payments. A “charge” is referred to in s. 89 of the Indian Act, and is a lien or an encumbrance registered against the Certificates of Possession.

224Respectfully, this court acknowledges, appreciates, understands, and accepts that the ultimate decision on this issue of security is with the Band, and thereafter with the Minister. Any charging order made by this court to provide security and a lien against lands subject to the provisions of the Indian Act requires, and is subject to, the approval of the Band and the Minister of Aboriginal Affairs and Northern Development. All orders for security are made by this court in favour or at the instance of Kelly Ann McMurter, as provided in s. 89 of the Indian Act.

225To start the process, I order that James Robert Gordon McMurter shall complete and sign any documents required to place security in the form of a charge against his Certificates of Possession to the properties as listed in Schedule F to this order, as a lien in favour or at the instance of Kelly Ann McMurter, in the amount of $400,000, and submit those documents to the Band for approval within 30 days of the date of release of this Judgment, which would be on or before August 15, 2016. The charging order shall be registered against each Certificate of Possession listed in Schedule F to this order. If approved by the Band, these documents are then to be submitted to the Minister for approval and registration by the Indian Lands Registrar.

226If Mr. McMurter fails to comply and he fails to attend and sign the documentation, he shall be deemed to have consented to and to have authorized the placing of security in the form of a charge against his Certificates of Possession as listed in Schedule F to this order, as a lien in favour or at the instance of Kelly Ann McMurter, in the amount of $400,000. The charging order shall be registered against each Certificate of Possession listed in Schedule F to this order. Any documents required to give effect to this security in the form of a charge may thereafter be completed by Kelly Ann McMurter on behalf of James Robert Gordon McMurter and submitted to the Band for approval, and if approved, to the Minister for approval and registration by the Indian Lands Registrar.

227If the security in the form of a charge against the Certificates of Possession as listed in Schedule F to this order is approved by the Band, and approved by the Minister, and if Mr. McMurter is in default of his monthly ongoing spousal support payments of $2,500, Mrs. McMurter may apply to the court for a further order realizing on the security, including equitable relief, to set conditions of sale on terms consistent with the Indian Act, or to sell or transfer some or all of the Certificates of Possession as listed on Schedule F to this order for fair market value, subject to the approval of the Band and the Minister, and apply the net proceeds against the spousal support owed to Kelly Ann McMurter by Mr. McMurter, or for a lump sum order of spousal support or for such further and other relief as the court considers just.

228The viability of a lump sum order of spousal support has been established in this case by Mr. McMurter’s prolonged failure to pay the spousal support order when he had funds available to pay. If Mr. McMurter continues to fail to pay the ongoing spousal support order of $2,500 per month, in consideration of the history of his failure to pay and all the circumstances of this case, the court is entitled to consider a lump sum order of spousal support to Mrs. McMurter to ensure payment.

229If necessary, Mrs. McMurter shall account for any net proceeds received from the sale of any of the Certificates of Possession for Mr. McMurter’s properties to the Director of the FRO for ease of spousal support payment accounting purposes.

230If Mr. McMurter is not in default, Mr. McMurter may seek an order from the court discharging the security, in whole or in part, varying the security, or postponing the security, on such terms as the court considers just, by way of a motion on notice to Mrs. McMurter.

231The security shall be in the face amount of $400,000 in the form of a charging order registered against Mr. McMurter’s Certificates of Possession, as set out in Schedule F. The secured properties exclude his personal residence at 192 Church Lane, and his two vacant lots on Church Lane. The secured properties include 202 Church Lane, 68 Sadie’s Lane, Bell’s Side Road, and Mr. McMurter’s ½ interest in the 283 Highway #38 business property. This security I find is necessary to ensure that Mr. McMurter’s liability for spousal support is paid by Mr. McMurter. This security is an appropriate and viable means for Mrs. McMurter to ensure receipt of the spousal support which she requires to support herself, if approved by the Band and the Minister.

232I have excluded security against the vacant lots to allow Mr. McMurter to be able to develop them as potential rental properties. I have excluded security against Mr. McMurter’s personal residence at 192 Church Lane on the basis of the equitable principle that both Mr. and Mrs. McMurter have the right and entitlement to reside on the Territory. They each have their own home to live in, free and clear of any claim by the other. This also gives Mr. McMurter the option to apply to the MBQ for a mortgage to assist with payments to Mrs. McMurter as a result of the legal dissolution of his relationship.

233This type of mortgage is available from the MBQ on application and its designated purpose is to “accommodate mortgagors with life changes by including options related to the dissolution of marital or common-law relationships”, and is described in the MBQ Mortgage Rewrite Policy pamphlet. Considering the amount of support arrears Mr. McMurter owes to Mrs. McMurter, this may be an option for him if he wishes to maintain his driver’s licence or to remain out of jail, as may be ordered in the Ontario Court of Justice in any future enforcement proceedings.

234Mr. McMurter is therefore ordered to secure his spousal support payments by way of a charge in the amount of $400,000 in favour or at the instance of Mrs. McMurter and to continue to pay his spousal support payments of $2,500 per month, as provided for in the Divorce Act.

235If the charging order is not approved by the Band, or the Minister, Mrs. McMurter may bring this matter back before me for an alternate form of security for her spousal support payments. She may request an order for equitable relief, or to set conditions of sale on terms consistent with the Indian Act, or to sell or transfer some or all of the Certificates of Possession as listed in Schedule F to this order for fair market value, subject to approval by the Band and the Minister, and apply the net proceeds against the support owed to her by Mr. McMurter, or for a lump sum order of spousal support or for such further and other relief as the court considers just on notice to Mr. McMurter on a date to be set by Superior Court trial co-ordinator in Belleville.

236I appreciate that some of the relief available for future consideration is dependent on whether or not the order is filed with the Director of the FRO at the time of consideration by the court.

237In order to ensure the integrity of the process while awaiting the decision of the Band and the Minister, it is necessary to make a prohibition order against Mr. McMurter in relation to dealing with the properties listed in Schedule F to this order. I order that Mr. McMurter or his respective agents, servants, and persons acting under his instructions, are prohibited from disposing of, transferring, encumbering or in any way dealing with any interest he has or may have in the Certificates of Possession for his properties as listed in Schedule F to this order, pending further order of the court. Any such transactions shall be void as against Mrs. McMurter.

238In order to ensure the integrity of the process, the terms of this Final Order shall bind the Estate of James Robert Gordon McMurter and the Estate of Kelly Ann McMurter.

Additional Ancillary Issues:

The April 6, 2010 Final Order

239At the commencement of the trial, I reviewed with the parties Justice McKinnon’s Final Order. I advised the parties that I would dismiss the Motion to Change summarily for failure to comply with Justice McKinnon’s final court order as in Rule 1(8) of the Family Law Rules. I advised the parties that I would not commence the trial unless I was satisfied that his order had been complied with, or was provided some reasonable explanation, or the parties consented to the trial proceeding on terms that the Final Order would be clarified as they were at an impasse. The parties consented to me determining the outstanding issues of their April 6, 2010 Final Order as to the property matters as a condition of this trial proceeding.

240Family law orders sometimes need to be varied, rescinded or altered based on changing circumstances. The Divorce Act specifically contemplates that some orders need to be altered. The Final Order under the Family Law Act has not been complied with in several respects in relation to their jointly held property. Some of the terms were unclear. I find its terms need to be updated to reflect the present circumstances and to regularize the parties’ assets that were intended to be dealt with at the time of their divorce, but today remain outstanding and a continuing source of litigation between the parties.

207 Bayshore Road:

241I required Mr. McMurter to comply with paragraph 7 of the Final Order and sign over his ½ interest in 207 Bayshore Road on the Territory to Mrs. McMurter. This eventually was done and is no longer an issue.

Joint Rental Property, 184 College Street East, Belleville

242Mr. McMurter was ordered to transfer his ½ interest in this property to Mrs. McMurter as part of the divorce settlement and he never did. The Final Order provides that if the lien to CRA had to be satisfied with his ½ equity limited to ½ of the total equity in the property of $64,000 or $32,000, then Mr. McMurter was to contribute $30,000 worth of materials and labour to the property to compensate Mrs. McMurter. She has paid all the expenses for the property and has been entitled to collect the rents from the date of the order. Mr. McMurter shall be solely responsible for removing and/or satisfying the CRA lien and removing the lien from the title to this property.

243I order that all right, title and interest that James Robert Gordon McMurter has in the property known municipally as 184 College Street East, in Belleville, Ontario shall be vested in the sole name of Kelly Ann McMurter. I order and declare that the value of the equity of James Robert Gordon McMurter and his interest in this property is limited to $32,000. I order that James Robert Gordon McMurter shall pay Kelly Ann McMurter the sum of $30,000 together with interest at the court post-judgment interest rate of 3% from April 7, 2011 in compensation for this property. One year is a reasonable amount of time for Mr. McMurter to have complied with the April 6, 2010 Final Order of McKinnon, J. Mrs. McMurter shall provide to the court the full legal description for registration purposes of the Vesting Order on title, as a Schedule to the Vesting Order.

Manulife Investment:

244The parties both agree that the Manulife Investment needs to be cashed in. They disagree as to how the funds should be paid out. They have signed the necessary forms and have consented to me dealing with this investment in my order. On June 15, 2015, the value of the investment contract number 300663518 was $12,309.66. The statement Exhibit #4, Tab 9, shows that some of these funds have maturity dates as long as 2025. I order that the original signed withdrawal documents requesting a full withdrawal and closing of the contract be given to Mrs. McMurter for her to deliver to Manulife Investments, of the Manufacturer’s Life Insurance Company (Manulife).

245I have completed paragraph 5 of the form as signed by the parties, and I order that Manulife Investments shall close the investment and collapse plan contract number 300663518 and provide a cheque for 100% of the proceeds payable to and issued to Kelly Ann McMurter to be picked up by Kelly Ann McMurter from their office.

246Mrs. McMurter shall file with the court, to my attention, documentary proof of the net amount she has received, less any expenses or tax liability. Mr. McMurter’s ½ share shall be paid to Mrs. McMurter. His share shall be provided for as follows: Mrs. McMurter shall provide a receipt to the court for one half of the net amount that she has received from Manulife to be credited to Mr. McMurter’s spousal support arrears. If there is any issue or uncertainty as to the amount of the receipt, I will determine the amount of credit to be provided.

Joint Business Property - 283 Highway #49:

247The Final Order provides that “the parties shall together remain on title to the building and lands known as 283 Highway 49, Tyendinaga Mohawk Territory”. Section 24 of the Indian Act does not allow a joint tenant to transfer his/her interest to his/her self in order to sever a joint tenancy. Transfers are only allowed to the band or another member of the band.

248Mrs. McMurter seeks relief in relation to this property including rent of $1,500 per month, and the ability to sell this property and to dispense with Mr. McMurter’s signature. I do not have sufficient evidence in relation to the issue of the ownership of the business property or the rental issue in relation to this property at this time to make a proper determination. Mr. McMurter raised the issue in submissions but not in evidence. Mrs. McMurter raised it in her claim, and made only minor references to the issue in evidence. As a result, if either party wishes to pursue the issue relating to the jointly held business property, it may be brought back before the court on motion with notice to the other party, for a determination of this issue as the court directs.

249Alternatively, the Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20 (FHRMIRA), provides the ability for spouses and former spouses (s. 2(4)) to obtain resolution of the division of their matrimonial property (s. 28 to s. 31). Rule 1(5) of the Family Law Rules provides that a court may order a family law case to be combined with another matter on motion. Without determining whether or not this new legislation is applicable to this case, leave is granted to either party to bring such a motion to determine if such an order should issue to join this case with an application commenced under the FHRMIRA by either party in the future. Any such application under the FHRMIRA would have to include a request for extension of time under s. 30(2) for the court’s consideration and determination. The FHRMIRA issue is related to the parties’ respective interests in, or their entitlement to compensation for, the business property situated at 283 Highway #49, their only remaining jointly held matrimonial property, situated on the Territory and subject to the provisions of the Indian Act.

Future Motions to Change by Mr. McMurter

250Mrs. McMurter has asked that I order that Mr. McMurter cannot bring any further motions to change in the future until he complies with the orders of the court and he is not in arrears. An order of this nature is warranted in this case. In Brophy v. Brophy (2004), 2004 CanLII 25419 (ON CA), 45 R.F.L. (5th) 56 (Ont. C.A.), there is authority for the principle that a payor of support who is in default should not be allowed to maintain an appeal of an order of support, particularly where the amount of the arrears is large, and the lack of payment is deliberate.

251Mr. McMurter has used the court system to frustrate payment of spousal support to Mrs. McMurter. He has not made full and frank financial disclosure throughout these lengthy proceedings. There is now Rule 1(8) of the Family Law Rules and it provides in subsection (e) that if a party fails to obey a court order, the court may order that the party is not entitled to any further order from the court unless the court orders otherwise.

252This was a marriage of long duration. Mrs. McMurter has done everything that is expected of her to earn income and make efforts to support herself since 2010. Mr. McMurter is in breach of the consent order of Mr. Justice McKinnon dated April 6, 2010 because of his own determination of what he is going to pay, based on his own needs, with a disregard of the court order. No convincing explanation for his default exists on the evidence in this case. Further and more egregious, is that there is clear evidence that Mr. McMurter is lying about his true income, and that he indeed does have the funds to pay the support order and all of the arrears.

253Mr. McMurter’s failure to pay is defiant, deliberate, willful and blatant. He has made strenuous efforts and spent considerable sums of money in attempting to defeat Mrs. McMurter’s spousal support claim. He has a long history on not following court orders. An order preventing him from bringing further proceedings while he is in breach and/or in default of a court order is necessary to protect the integrity of the administration of justice, which is at stake when a party disobeys a court order.

254I order that Mr. McMurter is prohibited from bringing any future Motions to Change if he is in breach of and /or default of a court order, including in arrears of spousal support, interest and/or costs as determined by the Director of the FRO or the court. If any future Motions to Change are brought by Mr. McMurter, he shall pay all ongoing support orders, and they shall be in good standing each and every month as determined by the Director of the FRO or the court, to allow the Motion to Change to proceed or to continue to proceed before the court. If any future Motions to Change are brought by Mr. McMurter, he shall first be required to post security for costs by depositing with the court the sum of $35,000 to the credit of this action prior to commencement of any Motion to Change. These orders are made pursuant to Rule 1(8) of the Family Law Rules.

CONCLUSION:

255The amount previously ordered is presumed correct at the time it was made. I have considered the evidence and find that there has not been a change in the condition, means, needs or other circumstances of either Mr. McMurter or Mrs. McMurter occurring since the previous order was made in 2010. Mr. McMurter bears the onus to show that a material change of circumstances has occurred, which he has failed to prove on the balance of probabilities. The extent of the any change in the parties’ circumstances is not a material change of circumstances, and not such that continuation of the existing order would be unjust. There has been no material change of circumstances to warrant a variation or termination of the April 6, 2010 spousal support Final Order. Mr. McMurter’s Motion to Change is dismissed.

256The Claim by Mrs. McMurter as Responding Party, for security for future spousal support is granted subject to the provisions of the Indian Act, which requires approval by the Mohawks of the Bay of Quinte, Tyendinaga Mohawk Territory and the Minister of Indian Affairs and Northern Development. Additional ancillary orders are made as provided in this Judgment.

257I thank Counsel Mr. Katz, Mr. McMurter, and Mrs. McMurter and her sister, for their assistance to the court in the presentation of this most difficult case. I thank the MBQ for their assistance to the court in relation to the transfer documents for 207 Bayshore Road.

COSTS:

258Written submissions on cost are to be served and filed at the Belleville courthouse. Costs of this Motion to Change are reserved. Mr. McMurter shall have until Friday August 12, 2016 to serve and file his written submissions limited to 15 pages or less. Mrs. McMurter shall have until Wednesday August 31, 2016 to serve and file her submissions limited to 15 pages or less. Mr. McMurter will have until Friday September 9, 2016 to serve and file his reply submissions, if any, limited to 10 pages or less. After that date, costs will be determined by me based on the written submissions filed. All submissions shall be filed in writing at the Belleville Court Office.

259The parties shall direct their submissions on costs only in relation to this Motion to Change commenced August 14, 2013 and onwards, and nothing before this date. Any proceedings in relation to enforcement by the Director of the Family Responsibility Office shall not be included for consideration.

ORDERS TO ISSUE:

260I will remain seized of all of the issues that arise out of this Judgment, unless in an emergency I am unavailable, or unless I order otherwise. Genuine emergencies may proceed before any Justice of the Superior Court of Justice. It is important for consistency and case management purposes that I hear from the parties if necessary concerning the implementation of this Judgment and any issues that may arise as a result, including the release of supplementary reasons as required.

261If either party or anyone affected by this Judgment wishes to address any outstanding issue in this case, they shall follow the following contact protocol:

Contact Protocol: To obtain a court date, contact the Superior Court of Justice trial co-ordinator in Belleville, Ontario, or in her absence, the Superior Court of Justice’s judicial secretary in Belleville, to request a court date in Belleville before me to deal with any outstanding issues in this case as is necessary. Notice of any court date shall be provided to all parties.

262The Final Orders in this matter shall be prepared by the court. The nature of the Final Orders in this matter are complex and time sensitive. As I am ultimately signing the Final Orders directly, the Final Orders shall be issued and released with these Reasons for Judgment to the parties.

263If I have made any material errors or omissions in these Reasons for Judgment or in the Final Orders as issued that require correction by either party, I reserve my right to make any corrections within a reasonable time. The parties shall follow the contact protocol to contact the court to deal with any such errors or omissions.

264Final Orders shall therefore issue in accordance with these Reasons for Judgment and as in Schedule G. In addition to the lengthy complete Final Order, separate Final Orders shall be issued in the interest of privacy of the parties, for delivery to Manulife Investments, containing only the terms of the Final Order applicable to Manulife, and for registration of the Vesting Order in relation to 184 College Street East, Belleville, Ontario containing only the terms necessary for registration by the Province of Ontario. Mrs. McMurter shall file with the court the correct legal description for 184 College Street East, Belleville which shall be attached to the Vesting Order as a Schedule.

265As a courtesy, a copy of the Final Order shall be provided to Chief R. Donald Maracle and the Tyendinaga Mohawk Council, and to the Director of the FRO, who is awaiting this decision.

The Honourable Madam Justice Helen MacLeod-Beliveau

Released: July 15, 2016

SCHEDULE A

Spousal Support Table 2009 to 2015

	2009	2010	2011	2012	2013	2014	2015
Spousal Support ordered to be paid	$12,195.00	$29,756.00	$30,000.00	$30,000.00	$30,000.00	$30,000.00	$30,000.00
Spousal Support paid	0	$31,300.00	$ 100.00	$ 0.00	$32,500.00	$19,368.18	$6,608.50
Spousal Support not paid	$12,195.00	$1,544.00 extra	$29,900.00	$30,000.00	$2,500.00 extra	$10,631.82	$23,291.50

SCHEDULE B

Mr. McMurter’s Net Worth 2010 and 2015

ASSETS

	2010	2015
LAND: [1] 207 Bayshore Road: $ 0 To be transferred to Mrs. McMurter [2] ½ 283 Highway 49: $150,000 [3] ½ Bryce Vacant Lot: $5,000 [4] ½ 184 College Street, Belleville rental: $45,000 [5] 68 Sadie’s Lane purchased in 2008: $12,500 [6] Bell’s Side Road purchased in 2008: $6,000 [7] 192 Church Lane purchased in 2008: $25,000	$243,500	LAND: [1] 207 Bayshore Road: $ 0 Transferred to Mrs. McMurter [2] ½ 283 Highway 49: $150,000 [3] ½ Bryce Vacant Lot: $ 0 [4] ½ 184 College Street, Belleville rental: $57,500 [5] 100% Lot 21B-2 Sadie’s Lane Men’s Shelter: $122,734 [6] 100% Lot 36C-2 Bell’s Side Road: $200,000 [7] 100% Lot 33J-9-1 Church Lane: $10,000 [8] 100% Lot 33J-13-2 202 Church Lane rental: $81,974 [9] 100% Lot 33J-15 Church Lane and mobile home: $13,000 [10] Lot 33J-8 192 Church Lane new home of Mr. McMurter: $250,000
		$885,208
General Household Items and Vehicles: Truck, Motorcycle, 2 ATVs, Trailer	$87,000	2013 Nissan Truck, Motorcycle, and Trailer
		$43,500
Bank Accounts and Savings, Securities and Pensions: savings and investments	$76,128	BMO Bank Accounts, Akwesasne, P & G shares, Manulife Investments
		$18,621
Life and Disability Insurance: London Life plus Empire Life, Canada Life, Royal Life cash surrender values	$47,982	London Life
		$10,382
Business Interests: 100% McMurter Home Centre, Hastings I.C.F., JM Developments	$844,142	Business Interests: 100% McMurter Home Centre, (Hastings I.C.F. and JM Developments now merged into McMurter Home Centre)
		$966,139
Money Owed to Mr. McMurter	Nil	I do not accept the evidence that McMurter Home Centre owes Mr. McMurter $30,000 for a personal RV trailer, there being no credible evidence of such a loan
		Nil
Other Property	Nil	Nil
Total Assets	$1,298,752	$1,923,850

DEBTS & LIABILITIES (excluding CRA Lien)

½ Mortgage 184 College Street, Belleville	$13,296	Mortgage 184 College Street $ 0, BMO Line of credit $30,000, Owed on Lot 33J-13-2 $35,000 less $11,700 in payments net $23,300, Loan on Nissan $9,200
		$62,500
Property, Debts and Other Liabilities on Date of Marriage	Nil	Nil
Value of Property Excluded under Subsection 4(2) of Family Law Act	Nil	Nil
Value of Excluded Property	Nil	Nil
Approximate Total Net Worth	$1,285,456	$1,861,350 an increase of $575,894

SCHEDULE C

Mrs. McMurter’s Net Worth 2010 and 2015

ASSETS

	2010	2015
Land: [1] 100% 207 Bayshore Road: $80,000 [2] ½ 283 Highway 49: $150,000 [3] ½ Bryce Vacant Lot: $5,000 [4] ½ 184 College Street, Belleville rental: $45,000 [5] 100% 5 King George Square, Belleville rental: $290,000 [6] Vacant lot 34 A: $10,000	$580,000	[1] 100% 207 Bayshore Road Duplex: $175,000 [2] ½ 283 Highway 49: $150,000 [3] ½ Bryce Vacant Lot: $ 0 [4] ½ 184 College Street, Belleville rental: $57,500 [5] 100% 5 King George Square, Belleville rental: $290,000 [6] Vacant lot 34 A: $0
		$672,500
General Household Items and Vehicles: Car, Pontoon Boat, and Trailer	$42,000	2004 Honda Accord
		$500
Bank Accounts and Savings, Securities and Pensions: savings, investments and RRSP	$130,596	Bank Accounts and Savings, Securities and Pensions: savings, investments and RRSP
		$141,045
Life and Disability Insurance: Cash Surrender value: London Life x 2	$36,452	Life and Disability Insurance: Cash Surrender value: London Life x 2
		$61,870
Business Interests:	Nil	Nil
Money Owed to Mrs. McMurter (excluding arrears of spousal support)	Nil	Nil
Other Property: Rental Property included in Land above	Nil	Boathouse
		$6,000
Total Assets	$789,048	$881,915

DEBTS & LIABILITIES

	2010	2015
Loans for trailer, car, ½ mortgage 184 College Street, 100% mortgage 5 King George Square	$212,081	Consolidation of debts into mortgage on 5 King George Square as Mr. McMurter refused to sign mortgage renewal on 184 College
		$146,656
Property, Debts and Other Liabilities on Date of Marriage	Nil	Nil
Value of Property Excluded under Subsection 4(2) of Family Law Act	Nil	Nil
Value of Excluded Property	Nil	Nil
Approximate Total Net Worth	$576,967	$735,259 an increase of $158,292

SCHEDULE D

Mr. McMurter’s Properties Acquired Since Separation and Since April 6, 2010

1. 68 Sadie’s Lane: Legal Description: Lot 21B-2 Concession A RSO 331. Parcel Type: Surface. Pin: 402003333. Registration Number 6055682 – ½ interest purchased in 2008 for $12,500.00, instrument date 2008/02/25 as a joint tenant with Ronald Gregg Powless. Mr. McMurter bought out Mr. Powless for an additional $12,500.00 and became sole owner in 2011, instrument date 2011/02/15 to James Robert Gordon McMurter – Certificate of Possession 403013607. This property is a two-unit, two-level rental property. A large addition was added and used on the upper level as a rental, and on the lower level as office/commercial space. These renovations added significant value to the property and cost $40,000.00. At one time it was a restaurant. Mr. McMurter uses this property as a homeless men’s shelter but does get some income from it, of approximately $400.00 per month. I estimate Mr. McMurter’s cash expenditures since April 6, 2010 at $12,500 plus $40,000 for $52,500.00. I find the value in 2010 was $12,50