Court File and Parties

OSHAWA COURT FILE NO.: FC-12-2454 DATE: 20160629

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

C.E. Applicant

— and —

F.E. Respondent

COUNSEL: C.E., Self-Represented F.E., Self-Represented Allyce B. Mutungi for the Office of the Children’s Lawyer

HEARD: May 24, 25, 26, 27 and 30, 2016

Timms J.

REASONS FOR JUDGMENT

[1] Ostensibly, the issues to be decided in this matter include:

• custody of the two children of the marriage (O.E., born […], 1998 and N.E., born […], 1999),
• child support for those two children, including section 7 expenses,
• spousal support, and
• the equalisation of the parties’ net family properties (NFP).

[2] This matter started back in December 2012 when the applicant issued an application seeking only permission to travel to Nigeria with the two children. At the same time, he brought an urgent ex-parte motion seeking the same relief. The judge who considered the motion required that it be served. When that had occurred and both parties appeared, the motion was dismissed. The judge who heard the motion endorsed that he did so because Nigeria was not a signatory state to the Convention on the Civil Aspects of International Child Abduction. [1]

[3] No further steps were taken in the file until the respondent filed a motion on October 23, 2013. As I read that motion, even though she had filed an answer/claim, she was seeking to start a whole new application in which, among other things, she sought custody of the children. She alleged that the parties had attempted to reconcile between December 2012 and the summer of 2013, but those efforts had proven unsuccessful. Although initially there was some disagreement as to the valuation date, the parties agreed at the beginning of the trial that it was July 4, 2013.

[4] In early October 2013 the applicant was charged with sexually assaulting the respondent’s daughter from a prior relationship. That matter is still before the criminal courts. The criminal charges against the applicant resulted in his exclusion from the matrimonial home on October 11, 2013.

[5] Eventually, the respondent retained counsel who filed an amended answer/claim. Thereafter, the applicant filed an amended application and a reply. Throughout 2014 there were several court appearances regarding the issues of the sale of the matrimonial home, spousal support, child support, financial disclosure by the applicant (including his pension valuation), and the respondent’s relationship with the children. Ultimately, there was an order for the sale of the matrimonial home with the respondent to have sole carriage thereof. There was as well an order appointing the Office of the Children’s Lawyer (OCL) to act for the children.

[6] The matter was originally scheduled for a trial management conference in June 2015. That was adjourned to August 31, 2015, apparently because neither party was properly prepared. That date too was adjourned via a 14B motion filed by the applicant: he wished to travel to Dublin, Ireland, with O.E.. After the trial management conference was eventually held on October 1, 2015, the matter was set for trial during the week of January 11, 2016. The applicant filed another 14B motion on December 16, 2015 seeking an adjournment of the trial to either March 2016 or May 2016. He wished to avoid scheduling conflicts with his criminal trial, and he wanted more time to properly prepare his disclosure. When the case was called for trial on April 7, 2016, it was again adjourned. As per the endorsement of the presiding judge, the file was not trial-ready. As the matter unfolded before me, it became apparent that both parties, and especially the applicant, were still not properly prepared.

[7] At the beginning of the trial herein, OCL counsel put on the record that her instructions from her clients (keeping in mind that the daughter O.E. turned 18 years old on the eve of the trial, and was thus no longer a minor) were that they did not wish any kind of a relationship with their mother. As the parties agreed that those were her instructions, I released OCL counsel.

Custody

[8] The applicant seeks an order for sole custody of N.E.. He asserts that such an order is required to allow him to direct the education of the child, including the right to travel with him to other countries to attend interviews and to enroll him in educational institutions abroad. He argues that history has proven that the respondent will oppose such travel.

[9] Additionally the applicant argues that the desire of the respondent to be involved to some degree in N.E.’s life is more about her as opposed to the child’s best interests, and that N.E.’s wishes as articulated through the OCL must be respected.

[10] The respondent testified that she will respect the stated views of the children not to have a relationship with her for the moment. She hopes that they will change their minds in the future when they are adults and out from under the thumb of the applicant. Nonetheless, she opposes an order granting the applicant sole custody. She seeks an order granting the parties equal custodial rights. Alternatively she submits that there should be no custodial order at all. Her argument rests on her view that the applicant has deliberately alienated the children from her. She is concerned that without a custody order she will no longer be able to have access to scholastic information regarding her son who is still a minor. Her evidence was that she often attends at her son’s school to get updates from his teachers and other staff, and that she also attends public events such as assemblies. Based on her observations, N.E. has no objection to that.

[11] One interesting argument that the respondent put forward as to why there should be an order for equal custody related to the applicant’s criminal charges. She posited the possibility that should the applicant be found guilty of sexual assault, he could well be incarcerated. In that case, he would not be able to properly exercise his custodial powers.

[12] Since October 2013 when the applicant was charged with sexual assault and excluded from the matrimonial home, the children have had almost no relationship to speak of with the respondent. Even before then, starting in at least late 2012, there were clearly significant difficulties in the respondent’s relationship with the children.

[13] The applicant testified that the respondent abused the children physically and emotionally. His thesis was that her religious devotion led to her doing so. He said that she believed in the dictum that to spare the rod was to spoil the child. In his cross-examination of the respondent he suggested that her entering the children’s bedrooms late at night to pray over them was a cause of ongoing conflict between her and the children, which led to the children baring their bedroom doors at night. [2]

[14] The respondent admitted going into the children’s bedrooms to pray over them if she felt it necessary, but denied ever waking them to do so. She also said that the children only started to bar their doors at night because of the applicant’s campaign to have them believe that she was crazy and to alienate them from her. She said that this campaign started after she started to assert her independence from the applicant, and that it became worse when she supported her older daughter with respect to the allegation that the applicant had sexually assaulted her. It worsened further when she later refused to have her daughter withdraw the sexual assault charges.

[15] The respondent produced a doctor’s note from the family doctor dated August 15, 2013. From the contents of that note, it is clear that the applicant, along with both children, had attended at the doctor’s office to report alleged bizarre behaviour by the respondent. Without ever seeing the respondent or talking to her, the doctor purported to diagnose her as “very likely schizophrenic” and advised the applicant to try to get a Justice of the Peace to have her committed.

[16] Sometime after the above date, the respondent went to the hospital when she felt ill at church. The applicant took her there. After she went home, and the applicant went back to church, she became suspicious and searched the applicant’s briefcase where she found the note. Her evidence was that the applicant must have given a copy of the note to the people whom she had seen at the hospital. She based that on how she had been treated at the hospital.

[17] When the respondent produced this note in her examination-in-chief, I said that I could not allow it in because she had not cross-examined the applicant about it. I had on at least two or three prior occasions explained the rule in Browne v. Dunn, (1893) 6 R. 67 (U.K.H.L.) to the parties and both had said that they understood it. [3] The applicant was quite insistent that he wanted the note made an exhibit. In neither his cross-examination nor in his reply evidence did the applicant deny taking the children to the family doctor’s office to talk about their mother. He apparently saw nothing wrong with involving the children as he did. He did not deny giving the note to someone at the hospital. He suggested in cross-examination that the respondent had afterwards gone to the doctor’s office and caused such a scene that the doctor wrote a second note confirming her opinion that the respondent was mentally ill. The respondent agreed that she had gone to see the doctor but said that the result was the opposite of what the applicant had said. In other words the doctor saw that there was nothing wrong with her. While no one produced any second note, it is clear that the respondent was never hospitalised for any mental health reason, and her evidence went unchallenged in reply.

[18] Although there does not appear to have been an order requiring the parties to attempt reconciliation counselling between the respondent and the children, evidence was led at the trial that such attempts were made in 2014. Both parties filed copies of emails between the applicant and B.L., who was the individual who conducted the sessions. Even a superficial analysis of those emails demonstrates that it proved difficult to arrange for the applicant to bring the children to see Ms. B.L., and that when he eventually did so, that his conduct at her office was not helpful. On June 27, 2014, Ms. B.L. wrote:

Your presence was not conducive to a positive meeting although enlightening. You were angry, accusatory and unhelpful in regard to this process moving forward. I can appreciate that this is upsetting, but your email below indicating that you will “continue to encourage the children to work with you (me) and bring the desired unity between them and their mother” was surprising and certainly not what was portrayed considering your behaviour.

[19] Another series of emails between the applicant and Ms. B.L. dated July 21, 2014, make it quite clear that the applicant continued to challenge Ms. B.L.’s attempts to better the relationship between the respondent and the children. In that context, the reconciliation counselling came to nought.

[20] Part of the respondent’s theory as to why the children refuse contact with her is that they are afraid of their father. They are afraid because of his overbearing manner, his past verbal abuse of them, and his complete financial control over their lives. If they do not support his point of view, he will not financially support their educational endeavours. The applicant denies all of this.

[21] Significant monies have been spent for both children’s educational endeavours since the separation. N.E. has been at T[…] College School (T[…] College School) since September 2013 at an annual cost of close to $30,000. Likewise, O.E. was at T[…] College School for all of high school until she graduated in June 2015, presumably at the same cost per annum. Then she went to University College Dublin (Ireland) (UCD) in a programme to obtain her medical degree. The cost of that programme just for tuition fees and accommodation came to over $80,000 CAD for the 2015-2016 academic year. Putting aside where he got it, the applicant has put up all of that money. [4]

[22] Weighing the evidence as best as I can, it is my conclusion that there is some measure of truth to what both parties said were the reasons why the relationship between the respondent and children broke down. That said, it is very clear that the applicant quite improperly involved the children in his conflict with the respondent before the parties separated. While the applicant appeared to support reconciliation counselling between the children and the respondent after the separation, the evidence suggests strongly that he did not. It is not difficult to imagine that both children felt it necessary to side with their father regarding the issue of the criminal charges brought against him. It is their father who has financially enabled their educational endeavours since the separation.

[23] In my view the outcome that most suits N.E.’s best interests is no order as to custody. N.E. will soon be 17 years old. The only legitimate reason for granting the applicant custody of him would be to allow the applicant to travel with him, without first seeking the applicant’s approval and to allow him to direct his son’s education. Those are easily carved out of the bundle of custody rights, and I so order.

[24] Although both children told their lawyer that they wanted no communication with the respondent, the respondent’s evidence was that N.E. seemed to either take no objection to her presence at school events, or that he positively acknowledged her presence. Operating on the truthfulness of that, it is in his best interests to allow the respondent to have access to school records, school personnel and to attend school events as she sees fit. I so order.

Basic Child Support

[25] The applicant seeks an order for basic child support going back to the date of separation, based on an imputed income of $60,000 per annum for the respondent. The respondent agrees that she should be paying basic child support in accordance with the Federal Child Support Guidelines, S.O.R./97-175, based on her actual income, and subject to an adjustment due to the fact that the children have either been in residence at T[…] College School, and in the case of O.E. living at UCD since September 2015.

[26] When he gave evidence the applicant said that after he was excluded from the home in October 2013, he lived with one friend, while the children lived with another one of his friends. The implication was that his friend did not have room for everyone. He said that after he got his own place in or about February 2014, the children lived with him when not at boarding school. During argument, I learned that the applicant’s terms of release on his criminal charges had prevented him from communicating or associating directly or indirectly with a person under the age of 16 years, except in the presence of his surety or another adult over the age of 21 years approved of by his surety. My first reaction was that I could not take that “evidence” into consideration because nothing had been said about that during the trial. After further consideration, I concluded that since a judicial release is a court order, I could. Therefore I looked at the file and found that indeed that those were the initial terms of release; however, those terms were modified in December 2013 to allow the applicant to associate and communicate with the two children of the marriage. As far as I can tell, the term relating to having to live with his surety remained in place, which would mean presumably that he was at the least sharing accommodation with that person.

[27] Except for fees paid to T[…] College School, there was no evidence forthcoming from the applicant as to any monies paid by him to third parties for the care of the children before May 2014. Additionally, he provided no budget for the children to cover the periods when the children were living at school or at home.

[28] Both children have attended private educational institutions for most of their lives, starting with M[…] School at age three. It is clear from all of the evidence that both parents are very proud of their children’s educational achievements and that in the past they both supported them attending costly private schools.

[29] From the evidence, O.E. started attending T[…] College School as a boarder in 2011. Prior to that she was at T[…] School. It was the respondent’s evidence that she went to T[…] College School to get out of the house and away from the applicant and his continual verbal abuse. The applicant did not deny this when he briefly took the stand in reply.

[30] Prior to enrolling at T[…] College School in September 2013, N.E. had attended the P[…] Christian School (PCS), a private religious institution, and a public school. While the applicant tried to frame it as a decision that he had made independent of anything else, and while it is not directly germane to any substantive issue that I have to decide, it is clear from all of the evidence that N.E. had to leave PCS in December 2011, because of the failure of his parents to pay outstanding fees. That the applicant refused to admit the truth of the situation did not contribute to his overall credibility.

[31] The applicant works for the O[…] (O[…]) as a business architect. When the parties attended for the first day of the trial, the applicant had not filed a financial statement since September 2015. At that time he had also filed his 2013 notice of assessment showing income of $107,796 and a copy of his 2014 T4 showing income of $106,740.32. I required the applicant to serve and file an up-to-date financial statement which he did the next day, although under protest as being too much work to do overnight. He set out his income therein as $106,738.32. Later on in the trial, the applicant filed a copy of his 2014 notice of assessment showing income of $111,885. The applicant never explained why his assessed income for 2014 exceeded his T4 income. He did file a copy of his condensed 2014 tax return; however, that did not explain the discrepancy. Although I asked the applicant to bring in some recent pay stubs for 2016, he never did so. The most that I can say is that the applicant likely earns about $110,000.

[32] The notice of assessment that the applicant did file for 2014 showed tax arrears of $47,033.82 as of that date, with the bulk of those arrears going back to at least 2012. [5] Although the applicant included those arrears on his putative NFP statement, when I asked how that debt to the Canadian Revenue Agency (CRA) arose, his answer was that he did not have a clue.

[33] According to the respondent, the applicant always controlled the family’s financial affairs. Any money that she earned was either given over to him or deposited into a joint account. She would have to have his permission to use monies from that account. In 2002, she obtained her real estate license, and later on she got her brokers’ license. Her evidence was that she earned a little over $100,000 gross that year. The applicant helped her with marketing and certain other activities. Because the real estate market was booming, the applicant decided to get his license as well. The respondent estimated that she grossed about $250,000 in 2003, between $300,000 and $350,000 in 2004, and about $400,000 in 2005. At some point the applicant incorporated a company that provided services to the respondent. Although the applicant denied it, the evidence showed that this company was likely used for income splitting, which could possibly lie behind why the applicant had a debt for tax arrears to the CRA. [6]

[34] It was the respondent’s evidence that the applicant was the one responsible for the filing of both of their tax returns. The applicant agreed during his cross-examination that the respondent had never, to the extent that he was aware, filed her own income tax returns. When the applicant was cross-examining the respondent, he pursued a line of question apparently directed to getting the respondent to admit that at law every individual is ultimately responsible for her or his own filing. It was not clear to me how that assisted the court. No matter who was responsible, until after the separation no tax returns were filed for the respondent for the years 2004 on. The CRA took it upon itself to assess the years 2004 and 2005 in the absence of any returns.

[35] Money had been set aside to pay the taxes for 2004 and 2005. The applicant’s evidence was that $50,000 had been left in the brokerage account and a further $32,000 had been set aside in another account. The respondent’s evidence was that a total of $250,000 had been set aside to pay the taxes for those years, but that the applicant came up with a scheme to buy a medical building with some doctors, convinced that they would make a large profit. Based on the ultimate penalties assessed by the CRA for the years in question and the contents of exhibit 14, it is my conclusion that in fact the parties had set aside $250,000 for taxes for those two years.

[36] In 2013, the respondent started to sell M[…] cosmetics in order, as she phrased it, to get some pocket change. She did not say what that amounted to. In July of that year she started working part-time at the S[…] Hospital in the scheduling office. On her 2013 tax return, the respondent set out that she had earned $19,823.18 that year at the hospital, and that she had gross business income of $950 with net business income of -$3,372.00. Her line 150 income for that year was therefore $16,451.18. The respondent did not file her notice of assessment for that year.

[37] In 2013, the respondent started to sell M[…] cosmetics in order, as she phrased it, to get some pocket change. She did not say what that amounted to. In July of that year she started working part-time at the S[…] Hospital in the scheduling office. On her 2013 tax return, the respondent set out that she had earned $19,823.18 that year at the hospital, and that she had gross business income of $950 with net business income of -$3,372.00. Her line 150 income for that year was therefore $16,451.18. The respondent did not file her notice of assessment for that year.

[38] The respondent still works at the S[…] Hospital today, although now she is permanent full-time. She earned $49,793.50 in 2014 there, and she had gross business income of $16,231 with net business income of $5,322.20. Therefore, her line 150 income that year was $55,115.70. In 2015, she earned $59,500 from her employment, but had no business income of any kind. She expects to continue to work at the hospital and is hopeful that she will obtain a management position and earn more income.

[39] Although at times, the applicant appeared to be arguing that the court should attribute an income of at least $100,000 to the respondent, going back to the time of the separation, when he made his final argument, he asked the court to make an order for $892 per month back dated to the date of the separation. That is based on an attributed income of $60,000 per annum.

[40] The applicant argued that this full amount should be paid for every month of every year, even when the children were not living at home. He cited three cases in support of that: Jordan v. Stewart, 2013 ONSC 902, [2013] O.J. No. 903; Birch v. Birch, 2010 ONSC 2915, [2010] O.J. No. 2170; and Armaz v. van Erp, 2000 ONSC 22585, 7 R.F.L. (5th) 1. [7]

[41] There is no doubt but that the court may, in the correct circumstances, make an order for the full amount of table child support even when children are not living full-time at home. This is usually premised on the theory that the custodial parent’s expenses, except for food, utilities, and other incidentals, do not change just because the child is not living at home. However, there are equally many reported cases where the court, especially when the “child” is an adult away at university (as is the case here), makes either no order or a reduced order. [8] I cannot agree with the reasoning in Armaz v. van Erp. A failure on the part of the custodial parent to produce a budget relating to the actual expenses of a child should not cause the court to default to the presumptive amount in s. 3 of the Guidelines.

[42] It has always been my view that these cases are fact driven. That can be a problem in the absence of fulsome facts. In this case, the amount of time that the children spent with the applicant when not at boarding school is less than clear. The applicant failed to provide any evidence as to what he might have paid to third parties during the period before February 2014, and he made no attempt to produce a budget covering basic expenses for the children for the periods when they were spending weekends and summers with him. In those circumstances, my usual approach, which is what I intend to employ here, is to make the full amount payable during the summer months, and a reduced amount (usually about one-third) during the other months.

[43] As it relates to 2013, I am not making any order. The respondent only earned $16,451 that year. As I set out above, it appears as if the children were not living with the applicant even on weekends, and there is no evidence to support any payments by the applicant to third parties.

[44] The respondent’s income for 2014 was $55,115. The table amount for a payor with that income is $819 a month. As it relates to 2014, the evidence as to when the children were actually living with the applicant is again less than clear. As I set out above in paragraph [26], the applicant said that he got his own place probably in February 2014. He may well have shared that accommodation. My order is that the respondent pay the full table amount for the months of July and August and a reduced amount of $273 per month for the months of March to June and for the months of September to December. The arrears for 2014 created by my order total $3,822.

[45] In 2015, the respondent’s income was $59,000. The table amount for a payor with that income is $877. For the first six months of that year both children were at T[…] College School and quite possibly coming home on weekends. For that period my order is that the respondent pay the sum of $293 per month. The full amount should be paid for July and August, even though the evidence was that O.E. went to Ireland before the end of August. Obviously, O.E. was not coming home on weekends and so I am reducing the amount that the respondent should have paid for the last four months to $200 per month. The total amount of arrears for the year therefore comes to $4,312.

[46] The respondent’s evidence was that her income for 2016 should be the same as 2015, unless she obtains a promotion. O.E. continued at UCD until the end of May 2016. Therefore, for the first five months of this year, the amount payable is $200 per month. N.E. will be at T[…] College School until the end of June, thus the situation is that there is one child living with the applicant full-time and one possibly coming home on weekends. My order is that the respondent pay the sum of $650 for June. The full arrears for 2016 to the end of June will therefore be $1,650.

[47] The total arrears for the period 2014 to June 2016 come to $9,784.

[48] The full sum of $877 will be payable for July and August. What to do come September remains unclear and is very much tied in with the issue of the applicant’s claimed section 7 expenses.

Section 7 Expenses

[49] As I wrote above, the applicant testified that he had paid all the necessary fees for the children to attend both T[…] College School, and in the case of O.E., UCD. For the academic year 2015/2016, that came to $124,926.12. For the two prior academic years, it was at least $60,000 each year.

[50] When I asked the applicant how he could have possibly spent considerably more on his children’s educational expenses than his gross earnings, his answer was that he had cashed in mutual funds and borrowed from friends to do so. In his financial statement filed on the first day of the trial, the applicant listed a debt of $70,000 for “loans and advances” to help pay for school fees. I asked him to compile a list of names and amounts. He said that he would be unable to do so, although he did give a couple of names.

[51] On my math, the applicant’s net income for 2015 was $76,479.72. If in fact he borrowed $70,000 from various sources, then he would have had $146,479.72 to pay for the children’s school related expenses and to live on otherwise. After the school related expenses, he would have been left with $21,553.60 to pay for the remainder of his living expenses. That does not even take into account another $120,000 net that the applicant spent on T[…] College School fees for 2013/2014 and 2014/2105.

[52] The parties agree that the respondent has not made any direct section 7 payments since the separation date. The respondent gave evidence that she had borrowed $10,000 from a friend when O.E. first went to T[…] College School in 2011, because the family did not have enough money to pay all of the fees. The applicant denied knowledge of this debt. The respondent also said that she had borrowed a further $40,000 from the same friend and that she had given that money to the applicant. The applicant denied any knowledge of such a loan and denied receiving this money from the respondent. I did not find the applicant at all credible on this issue. It may well be that the applicant used this money towards the 2015/2016 educational costs of the children.

[53] The argument of the applicant as to exactly what order he wished this court to make for past and future section 7 expenses was somewhat confusing. In his draft order, he asked that the court order that the sum of $13,651.26 be paid out immediately, from the monies held in trust from the proceeds of the sale of the former matrimonial home, to N.E.’s account at T[…] College School. Additionally, he wants an order that the sum of $40,000 be immediately paid out of the same monies towards the account of O.E. at UCD.

[54] The applicant also sought an order that the respondent pay a further $10,000 for the T[…] College School fees for the 2016/2017 academic year, while he would pay the sum of $19,500. With respect to O.E., he wants the court to make an order that a section 7 expense of $80,000 per annum be “allowed” for her up to 2012, or alternatively that an expense of $80,000 be “allowed” for her for the upcoming academic year.

[55] Seemingly alternatively, the applicant set out that he wanted an order that the respondent pay 30% of her gross salary as her contribution towards the section 7 expenses of both children.

[56] Finally, the applicant wanted the court to make an order that the respondent pay the sum of $100,000 for special expense arrears for the “past three years”.

[57] It was the applicant’s evidence that the family’s intention when the parties were together that both children become medical doctors. The respondent agreed that at one point that was the case, although with respect to N.E., his personal desires changed from time to time. As I set out above, for most of their schooling both children attended private educational institutions. The exception was N.E.’s attendance at public school after he was forced to leave PCS for non-payment of fees.

[58] With respect to Osasere’s attendance at medical school at UCD, the applicant was clear that he wanted her to go there so that she could avoid having to do an undergraduate degree first before entering medical school. That option is only available overseas, or in some Caribbean locations. As a foreign student, Osasere’s fees are much higher than they would be here in Canada, either in undergraduate school or in medical school. The applicant made it clear that it was his intention that N.E. too would attend a foreign medical school after his graduation from T[…] College School in June 2017. He never explained how that would ever be financed.

[59] The respondent agreed that both children should be able to pursue their educational dreams, and that both parents should assist them in that regard. However, she argued that any amounts forthcoming from either of them had to be reasonable in accordance with their actual incomes. In her view, she had no ability to contribute anything in 2013. To expect her to pay one-third of the full T[…] College School fees for both children in 2014 (approximately $20,000) was unreasonable on an income of $55,115.

[60] With respect to 2015, even though her income had increased to $59,000, her one-third share as per the draft order would be even higher – at least $45,000.

[61] Assuming that the applicant does not seek any retroactive award beyond the payments of $13,651.26 and $40,000, as set out above, that still leaves the question of his request that the respondent pay at least one-third of the total cost of the educational expenses for either children, or alternatively 30% of her gross salary.

[62] The applicant was the only one to make an argument based directly on the provisions of section 7. He correctly pointed out that post-secondary expenses are specifically included in the list of items in s. 7(1) of the Guidelines. He argued that the evidence showed that N.E.’s educational needs could only be met by his continuation at T[…] College School. That evidence was somewhat weak.

[63] The applicant’s argument that the spending pattern of the parties while together would support a contribution by both parties to the educational expenses of the children was well founded. Where his argument foundered entirely was with respect to the test that the expense has to be reasonable in relation to the means of the spouses. To quote Gillese J.A. in Lewi v. Lewi, 2006 ONCA 15446, 80 O.R. (3d) 321, at para. 99:

The inquiry under s. 7(1) is focused on the special expense – whether it is necessary and reasonable in light of the means of the child and the parents and the spending pattern of the family while intact. Section 7(2) deals with the amount that each parent is to contribute to that expense by stipulating that, after deducting the child’s contribution, the expense is to be shared by the parents in proportion to their “respective incomes”. It can be seen that just as the amount of child support ordered pursuant to s. 3 depends on the payor's income, the payor’s income is central to the question of the amount of additional child support ordered under s. 7. [9]

[64] Thus, a parent is not required to spend capital to pay for section 7 expenses, even if an expense is necessary and reasonable as determined by their means. For that reason, I decline to make an order that any amount be paid for past or present section 7 expenses, out of the monies currently held in trust from the sale of the matrimonial home.

[65] It is patently obvious to me, and indeed the applicant admitted as much, that the parties herein do not, individually or collectively, have incomes such that they can spend over $124,000 a year on the education of their children. It is simply not reasonable in relation to their overall means, including their incomes. And next year when N.E. is eligible for university, it would be even less reasonable that they spend over $160,000 for the combined costs for both children to attend medical school in foreign jurisdictions.

[66] As an exercise, I inputted the parties’ incomes as above into DivorceMate, and included the current educational expenses claimed by the applicant. I also made basic child support payable for four months only. The result was startling. The applicant would have a net disposable income (NDI) of $1,082 per month or $12,984 per year, after receiving basic child support of $292 per month, plus the respondent’s share of the section 7 expenses. The respondent’s NDI would be $234 per month or $2,808 per year. That result would be insane for both of them. Obviously if I increased the child support, the applicant’s NDI would increase accordingly and the respondent’s would dwindle down to nothing.

[67] Even if I reduce the amount for Osasere’s education costs down to $20,000 a year (which is the average amount for tuition, etc. for a quality undergraduate education in Canada), the parties would be very, very stretched and the applicant would have a far greater NDI than the respondent.

[68] Simply put, this family cannot afford to spend between $50,000 and $124,000 per year for their children’s education. By my calculations, the total maximum annual amount that the parties can reasonably be expected to spend on their children’s education is roughly $30,000. Even that would take them to the absolute limit. Practically speaking, either N.E. or O.E. must defer next year. While that choice is a decision to be made “in-house”, presumably it makes more sense for O.E. to do so. The following year, the family cannot afford for either family to study abroad. Both children should be working in the summer and contributing to the costs of the education either through employment income, loans, or bursaries or all three. Assuming that happens, then following the usual formula, each child should be responsible for one-third of the full cost and the parents should split the remaining two-thirds proportionally.

[69] As I said, the evidence that N.E.’s educational needs mandate him staying at T[…] College School to finish high school was somewhat weak, nonetheless in my view the tests in both subsections 7(1) and (2) have been met. He has been at T[…] College School for all of his high school education. On the evidence he does very well there and is very involved in both the academic and social life of the school. Throughout almost all of their lives, the children have attended private school. Thus while it will be a stretch, I am making an order that the parents cover N.E's T[…] College School fees for the academic year 2016/2017.

[70] Assuming that only N.E.’s educational costs are being covered next year, and those costs are proven to be $30,000, then the respondent is to pay $1,302 per month towards N.E.’s 2016/2017 T[…] College School fees, for the months of September 2016 through to June 2017. [10]

[71] There will be no order regarding a contribution by the respondent for any post-secondary expenses for O.E..

Spousal Support

[72] The respondent seeks spousal support retroactive to the date of the separation. She did not claim spousal support in her original answer. In her amended answer filed in August 2014, she did not seek retroactive spousal support. She did say that she wanted the court to order spousal support in an amount to be determined, and that support should be based on the economic disadvantage to her resulting from the breakdown of the marriage. Although she brought a motion seeking interim spousal support, that motion was never argued.

[73] When she argued this issue at the end of the trial, the respondent made reference to a DivorceMate spousal support print out. Although the respondent seemed to believe that she had provided one, that had not occurred.

[74] The applicant argues that there should be no spousal support of any kind. In the main, his argument centered on the lack of a foundation for compensatory support.

[75] I will not repeat what I have set out above regarding the parties’ earnings since they separated. The respondent filed her first financial statement in February 2014. That showed her 2013 income as $23,000. Obviously that figure does not agree with the amount that is set out in paragraph [36] above. No explanation was given for that, and the applicant did not cross-examine her on that. In that same financial statement the respondent said that her 2014 income from the S[…] Hospital was $43,000. As per paragraph [38], we know that it was $49,793.50.

[76] The parties lived together for about two years before they married in 1997. Therefore, this was very much a medium term relationship. When together, the parties enjoyed several very good income years. There was no evidence to suggest that the applicant’s income was not secure. The respondent has clearly been economically disadvantaged by the breakdown of the marriage. Based on the contents of the attached DivorceMate, I am making a spousal support order of $1,200 per month for an unspecified period. [11] Even that leaves the applicant with just over close to 61% of the NDI. There is to be a review of spousal support after the youngest child finishes his post-secondary education, or if for any other reason the respondent ceases to make any child support payments whether pursuant to section 7 or otherwise.

Net Family Property

[77] I do not believe that I have ever had a more poorly presented case on the issue of NFP. Even after several conferences in front of experienced family law judges, and even after being told in April of this year that the matter was not trial ready, both parties showed up on the first day of the trial without NFP statements. I told them both to come with one the next day. The next day the respondent came with one; however, it was nowhere close to being properly filled in. The applicant did not come with one. I told both parties that they would have to do their best to present one as part of their arguments, based on the evidence adduced during the trial. Both did provide one, but again at the end of the day they were hopelessly incorrect and very unhelpful.

[78] The main issue on both sides, and especially that of the applicant, was that there was next to no evidence, let alone documentary evidence, with respect to the value of assets and debts on either the date of marriage or the valuation date.

[79] The applicant never adequately explained how it was that he spent over $240,000 net on tuition and related academic fees for the years 2013 to the present. That he would only have a debt of $70,000 makes no sense. It is more than possible that the applicant had greater assets at the date of separation than appear on any of his financial statements or his NFP statement such as it was.

[80] In the case of the applicant, he only obtained (via an email which became exhibit 8) a valuation of his O[…] pension during the trial, and as it turned out, it was for the wrong valuation date. After previously failing to do so, he listed a pension from the period when he worked for the British Columbia government. However, he purported to value it in a fashion that I did not follow at all. It was certainly not done in accordance with the Family Law Act, R.S.O. 1990, c. F.3 (FLA). He divided the value of all of his assets equally between himself and the respondent without any explanation, even if the asset was clearly his alone; for example, his pensions. As well, he listed an RRSP of $65,000 and divided it equally between both parties. I had heard not one word of evidence about this RRSP during the trial, and not one piece of documentary evidence was filed regarding it. He did not list or value the mutual fund which he testified that he had cashed in sometime after the separation to help pay for educational related expenses for the children. It was the exact same situation with respect to some stocks with SunLife Financial. In almost no manner did the figures in the applicant’s NFP statement filed as part of his argument agree with the figures in the property portion of his financial statement filed during the trial.

[81] The applicant testified that he felt that the value of the contents of the home, including furniture, art, and tools, was $500,000, or at least that was their insured value. In his NFP statement filed as part of his argument, he had reduced that to $100,000. He called that the depreciated value. Of course, neither party presented any reliable, let alone third party expert evidence, as to the value of the contents.

[82] The parties apparently had two vehicles on the valuation date. There was a 2004 BMW registered in the respondent’s name. That vehicle has been in the applicant’s possession since the separation; he has refused to give it back. There was as well a 2005 Grand Caravan which the respondent has had in her possession ever since the separation. The values that the parties put on those vehicles in their various financial statements made no sense whatsoever. I pointed out that they should have at the very least produced Black Book values. That apparently caused the applicant to look them up; without filing anything, he put something into his NFP statement filed for the argument. Ultimately, I have no idea as to the worth of those vehicles on the valuation date or now.

[83] As I said, the respondent’s evidence regarding her NFP was only marginally better. She did file an exhibit demonstrating the value of her RRSPs at the date of the separation. I was surprised to hear her testimony that she still had those RRSPs today because they did not appear in her last financial statement filed as an exhibit herein. They may, or may not, be the same RRSPs contained in the applicant’s NFP statement.

[84] The respondent’s evidence was that the value of the contents of the matrimonial home was nowhere near a half million dollars on the valuation date. She pegged it as $25,000 in her last financial statement and $2,500 in the NFP statement filed for the argument. She said that when she left the home she took items worth approximately 25% of the full value of what had been there.

[85] While the applicant testified that the parties owned valuable African art and items made of ivory, the respondent’s evidence was that the so-called art was the kind that one could buy at a market for a few dollars, and that the alleged ivory items were in fact made of bone. Of course, neither party presented any evidence of value one way or another.

[86] The respondent provided evidence that her lawyer had extended an invitation to the applicant to contact her to arrange to attend at the matrimonial home, before the closing of the sale to pick up personal items. When he failed to do so, she felt that she was free to do what she wanted with what was left. What she did not take with her was given to the Salvation Army, picked up as garbage by the Town of Whitby, or hauled away by a junk collector. When the applicant was examined about the offer to come to pick up items that he might want, he first said that he was not going to be told anything by the respondent’s lawyer about his terms of bail, and in any event he believed that all that he was being offered was his personal items. Therefore, he did nothing. He did not say that he had attempted to clarify what property he could take; he simply ignored the offer.

[87] The biggest item from the viewpoint of the applicant is the respondent’s debt to the CRA. As set out above in paragraph [34], in the absence of returns, the CRA took it upon itself to assess the respondent’s taxes for 2004 and 2005. That occurred in 2010. As best as I can tell, that created a debt of $160,507. The respondent filed an appeal. The applicant was allowed to represent the respondent on that appeal. By the spring of 2012, there was an order of a judge of the Tax Court of Canada setting out the process for moving the case forward. Examinations for discovery were to be held by the fall and the respondent was to produce certain documentation. Prompted by the applicant, the respondent offered to settle the debt for $10,000.

[88] After that, the respondent, without telling the applicant, decided to meet with a representative of the CRA to review her documentation, and especially the receipts for her expenses relating to her real estate earnings. According to her she did not wish any longer to try to provide false information regarding her claimed expenses. That process resulted in the amount owing increasing from the above figure to $276,683.38. Without any evidence to back up his claim, the applicant argues that the respondent should not have agreed that she owed that amount.

[89] As I wrote in paragraph [35] above, the parties had set aside $250,000 for unpaid taxes. For the reasons set out in exhibit 14, the investment of that money in the medical building did not pay off. The building was sold under power of sale, which caused the parties to lose their original investment of $250,000. In addition, they had borrowed another $150,000 on the line of credit secured against the matrimonial home, which amount too was effectively lost.

[90] Although the respondent was given sole carriage of the sale of the matrimonial home, it eventually sold by way of a power of sale for $508,000. From that amount was deducted the debt to the Toronto-Dominion Bank on the secured line of credit, legal fees, tax arrears, property maintenance, an amount owing to Moreneregy Services Inc., and other smaller miscellaneous amounts, leaving net proceeds of $226,504.63.

[91] However, the CRA had a registered lien in the amount against each party’s interest in the home for income tax arrears, plus in the case of the respondent, another one for GST arrears. The Department of Justice on behalf of the Crown filed a motion regarding the distribution of the proceeds of the sale. The motion material was filed by the respondent near the end of her cross-examination. That showed that, as of August 14, 2015, the respondent owed the sum of $302,048.20 for tax arrears and a further $91,240.49 for GST arrears. The applicant owed the sum of $44,849.02 for tax arrears. The Crown was paid the sum of $158,101.34 from the remaining proceeds of the sale. That represented a payment of $113,252.32 as against the respondent’s debt to the Crown and the amount of $44,849.02 owed by the applicant. The remaining net amount of $68,404.29 was paid into court. The parties disagree as to what should happen to this money.

[92] The respondent argues that the above sum should be paid to the federal Crown as against her remaining CRA debt. Her argument is that the debt was incurred as a result of the failure to file tax and GST returns, which was a decision that the applicant made, and that the loss of the money saved to pay the CRA debt was likewise as a result of a decision that he made. No matter what, the real estate business should be considered to have been a family enterprise and thus the remaining money from the jointly owned family home should be used towards retiring the debt.

[93] The applicant filed two NFP statements as part of his argument. Both show a notional value for the matrimonial home of $585,000. He adduced no evidence during the trial on that. On one of the NFP statements, he had put in all of the debts to the CRA. Putting aside that most of the other figures were substantially incorrect or unsubstantiated, that one showed that he owed the respondent about $94,000. The other one showed that he was owed about $50,000. Again, all of the remaining figures were either incorrect or unsubstantiated.

[94] Beyond that, it was very difficult to follow exactly what the applicant’s position was with respect to the money remaining in court. To start with, he asked that the court make an order “disallowing” the respondent’s debt to the CRA because of her failure to fight the re-assessment of her income tax, and her going behind his back to settle the case. Exactly what the jurisdiction might be to make such an order was never explained.

[95] At the end of the day, it is impossible for me to make a reasoned determination as to who owes what to whom under Part I of the FLA. The evidence was completely lacking, partially lacking, incorrect, or false. It was up to the parties to prove their cases. They failed to do so. The most equitable remedy is to order that the money being held in trust with the court be equally divided between them and that all of their claims regarding property under Part I of the FLA or otherwise be dismissed. I so order.

[96] The sum of $9,784 as per paragraph [47] above is to be deducted from the respondent’s share of the money held in trust.

Order

[97] For these reasons, the order shall go as follows:

(1) Neither party is granted sole custody of N.E., born […], 1998.

(2) The applicant is granted permission to travel with N.E. without the consent or approval from the respondent, and to direct his education.

(3) The respondent shall have access to N.E.’s school records, school personnel, and be able to attend school events as she sees fit.

(4) The respondent shall pay child support arrears of $9,784 covering the period up to June 30, 2016. That amount is to be paid out to the applicant from the respondent’s share of the monies held in trust from the sale of the matrimonial home.

(5) The respondent shall pay child support in the amount of $877 for the months of July and August 2016.

(6) Starting in September 2016, assuming that N.E. continues at T[…] College School and if somehow the applicant manages on his own to send O.E. back to UCD, then the respondent will revert to paying the sum of $200 per month. If O.E. does not return to UCD, but attends school here in Ontario and lives at home, then the respondent will pay the sum of $230 per month. If O.E. does not return to UCD and does not attend a post-secondary institution, then there will be no support for her but the respondent will continue to pay $200 per month for N.E..

(7) In the event that circumstances occur that I have not considered regarding basic child support, if the parties cannot themselves resolve it, then I will consider determining the issue via a 14B. However, to be clear, I am not seized of the matter.

(8) The respondent shall pay the sum of $13,020 towards the cost of N.E.’s school fees at T[…] College School for the 2016/2017 academic year, at the rate of $1,302 per month for ten months starting in September 2016. The applicant shall be responsible for the remainder of N.E.’s school fees at T[…] College School for the 2016/2017 academic year.

(9) The applicant shall pay spousal support to the respondent in the amount of $1,200 per month for an unspecified period, starting July 1, 2016. There is to be a review of spousal support after the youngest child of the marriage finishes post-secondary education, or if for any other reason the respondent ceases to make any child support payments, whether pursuant to section 7 or otherwise.

(10) The money being held in trust with the court from the sale of the former matrimonial home shall be equally divided between the applicant and the respondent. The respondent’s child support arrears of $9,784 will be deducted from her share.

(11) The parties claims regarding property under Part I of the FLA, or otherwise, are dismissed.

The Honourable Mr. Justice Roger Timms

DATE RELEASED: June 29, 2016

Footnotes

[1] 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (entered into force 1 December 1983).

[2] On many occasions throughout the trial I had to remind the parties that questions put in cross-examination did not as such amount to evidence. More often than not, that advice seemed to fall on deaf ears.

[3] Browne v. Dunn, (1893) 6 R. 67 (U.K.H.L.), cited in R. v. McNeill, 2000 ONCA 4897, 48 O.R. (3d) 212.

[4] I will return to this matter when I examine the applicant’s section 7 claims.

[5] As per exhibit 28 filed near the end of the trial, the applicant owed taxes going back to 2008.

[6] I have used the past tense here because as per exhibit 28, those arrears have now been “paid”.

[7] Jordan v. Stewart, 2013 ONSC 902, [2013] O.J. No. 903; Birch v. Birch, 2010 ONSC 2915, [2010] O.J. No. 2170; and Armaz v. van Erp, 2000 ONSC 22585, 7 R.F.L. (5th) 1.

[8] See Kapogiannes v. Kapogiannes, 2000 ONSC 22424, 10 R.F.L. (5th) 63; Merritt v. Merritt, [1999] O.J. No. 1732 (Ont. S.C.); Bond v. Bond, 2007 ONSC 41898, 44 R.F.L. (6th) 28; Park v. Thompson, 2005 ONCA 14132, 77 O.R. (3d) 601; and John-Cartwright v. Cartwright, 2010 ONSC 923, 81 R.F.L. (6th) 423.

[9] Lewi v. Lewi, 2006 ONCA 15446, 80 O.R. (3d) 321, at para. 99.

[10] I simply took the monthly amount of $1,085 paid monthly per year from the DivorceMate printout, and made it payable over ten months.

[11] One will see that I have included the above section 7 payment by the respondent.