Court File and Parties

Court File No.: D24732/14 Date: 2016/08/17

Ontario Superior Court of Justice

Between: Lidania Cruz Moreno, Applicant Counsel: Elena E. Mazinani, for the Applicant

- and -

Daelys Faife Hernandez, Respondent Counsel: Self-represented

Heard at Welland, Ontario: February 18, 19 & 26, 2016 and April 29, 2016

Before: The Honourable Justice T. Maddalena

Judgment

[1] I heard this family law trial at Welland, Ontario on February 18, 2016, February 19, 2016, February 26, 2016 and April 29, 2016. Final submissions were made in writing. The applicant’s were due on May 30, 2016, and the respondent’s were due on June 30, 2016. All submissions were received on time.

Consent Executed the 4th February 2016

[2] At the commencement of the trial, the parties filed a consent which included the following terms:

(1) The applicant Lidania Cruz Moreno, shall have custody of the child, Romel Luis Faife Cruz, born April 4, 2003. (2) The respondent, Daelys Faife Hernandez, shall have access with the child one Sunday per month from 12:00 p.m. to 8:00 p.m. The Sunday shall be the first Sunday of each month unless the parties agree otherwise. (3) The applicant shall actively encourage the child’s attendance at the access and the respondent shall ensure he plans appropriate activities for the child. (4) The respondent shall have such further access with the child as the parties agree or as the child requests.

Further Consent Orders

[3] In addition to the written consent, the parties consented at the commencement of the trial to the following additional orders:

(1) The applicant mother shall be at liberty to renew the child’s passport, both Canadian and Cuban, and other identity documents without the consent and signature of the respondent. (2) The applicant mother is permitted to travel with the child, including outside of the country, without the written consent or signature of the respondent. (3) The applicant and respondent shall share the s.7 expenses of the child on a 50/50 basis, provided that the respondent provides in advance his prior written consent, which consent shall not be unreasonably withheld. (4) The parties agreed that monies left in trust from the sale of the matrimonial home totalled $26,794. (5) All spousal support claims are dismissed. (6) The divorce is severed from the corollary issues and may proceed by way of uncontested affidavit of the applicant.

The Issues Outstanding for Trial

[4] The major issues for the trial include the following:

• Income and/or imputed income of the respondent;
• Child support payable, including ongoing and retroactive;
• The equalization of net family property.

[5] The most contentious issues with respect to the equalization of net family property include a Cuban property and a business asset known as Mojito’s House Ltd.

Background

[6] The applicant was born on or about June 16, 1971. The respondent was born on or about March 3, 1975. Both were born in Cuba.

[7] The parties were married in Cuba on or about November 12, 1999.

[8] There is one child of their marriage, namely, Romel Luis Faife Cruz, born April 4, 2003.

[9] On or about March 18, 2005, the parties together with their son immigrated to Canada. All are now Canadian citizens.

[10] In May 2005 the applicant commenced working at the Embassy Suites Hotel as a housekeeper. The respondent commenced work at Peller Estates Winery as a dishwasher, and later as a bartender.

[11] At the time of the trial, the applicant was still employed at the Embassy Suites Hotel.

[12] On or about December 2011, the parties purchased 6797 Ailanthus Avenue, Niagara Falls, which was their matrimonial home. This property was sold February 27, 2015. The net proceeds of sale currently remaining in trust are $26,794.

[13] The parties separated on or about May 19, 2014.

[14] The respondent incorporated Mojito’s House Ltd. as a 50 percent partnership with Raywer Rivas Perez. This was incorporated on or about July 12, 2012 as a Canadian controlled private corporation. Each partner, namely the respondent and Mr. Perez, owned 50 common shares. The business opened November 2012.

[15] The respondent and his business partner sold this business to Ms. Aleksandra Zuder for $30,000. This sale was finalized on October 29, 2015.

Income

The Applicant’s Income

[16] The income of the applicant is not in dispute and is not an issue for trial. Since coming to Canada, the applicant has been, and continues to be, employed at the Embassy Suites Hotel at 6700 Fallsview Blvd. in Niagara Falls, Ontario.

[17] The history of her income is as follows:

2012 $31,131 2013 $31,788 2014 $32,763 2015 $33,840

From her financial statements sworn the 5th February 2016, it appears that 2016 income, including child tax benefits, will be approximately $34,938.

Income of the Respondent

[18] The applicant submits that the court should impute income to the respondent at $45,000 per annum. The respondent refutes this and submits the court should consider only his line 150 income on his income tax return for each year at issue.

[19] It is undisputed in evidence that when the applicant and respondent immigrated to Canada, the applicant commenced work at the Embassy Suites and the respondent was employed at Peller Estates Winery. He was employed first as a dishwasher and later as a bartender. He was employed at Peller Estates Winery from approximately May 2005 until November 2012 when the respondent opened, along with Mr. Perez, Mojito’s House Ltd.

[20] The respondent’s notice of assessment from the Canada Revenue Agency (“CRA”) for the year 2012 has line 150 income of $29,335. This was mainly income from Peller Estates Winery.

[21] For 2011, the notice of assessment has line 150 income of $35,142.

[22] For the year 2013 up to and including September 2014, the respondent stated in evidence that he was employed solely at Mojito’s House working more than 40 hours per week in order to make the business viable.

[23] For the year 2013, the respondent’s line 150 income on his income tax return reported nil income. During this time, according to his evidence, in order to manage financially, he was using credit cards, accessing joint credit lines, and received loans from friends as well as help from the applicant, to cover expenses.

[24] In total, the respondent stated he borrowed $13,000 in cash from two of his friends. The cash payments consisted of a $5,000 cash payment from Eduardo Perez in 2013 and an additional cash payment from another friend in 2013 by the name of Luis Cardenas. Further in July 2014 the respondent stated that Eduardo Perez lent him an additional $3,000 in cash. Although he did not show these debts on his financial statement, he states these debts are still outstanding.

[25] For 2014, the respondent’s notice of assessment line 150 income reported $5,217.

[26] However, a financial statement sworn the 16th September 2014 and his financial statement sworn the 31st October 2014 both show income of $24,990. This included employment income from Mojito’s House and what the respondent termed as “anticipated share of business profits”.

[27] The respondent submitted in evidence that in 2015 his income consisted of income from Mojito’s House Ltd. of $9,959 up to the 30th September 2015 and Elmwood Kitchen income of $20,778 for a total of $30,737 income for 2015. The respondent stated that the poor performance of the Mojito’s House Ltd. business led him to seek a second job at Elmwood Kitchens for the year 2015.

[28] For the year 2016, the respondent was employed at Paris Crepe Café effective January 21, 2016 and worked there until March 2016. According to the evidence of the respondent, effective March 2016 he commenced work at Casino Niagara as a dealer and earning $12.00 per hour while he was in training. At trial, he submitted that he hoped to become employed fulltime at the Casino but the evidence supported by paystubs at the time of trial indicated his employment at the Casino as part-time and probational.

[29] Further, the applicant asserted in her submissions that the respondent continued to work at Mojito’s House Ltd. even after its sale in 2015, but there is no evidence to support such a claim.

[30] Also, I find that the submission by the applicant that the court should impute $45,000 to the respondent is not supported by the evidence presented at trial.

[31] Firstly, separate and apart from the years 2013 and 2014, when the respondent largely operated the business, his history of employment income in Canada, from the evidence presented, was approximately $30,000 to $35,000 annually. The respondent’s 2011 income was $35,142. His 2012 income was $29,335. His 2015 reported income was $30,737.

[32] In 2013, while operating Mojito’s House Ltd., his line 150 on the income tax return reported nil income, and his 2014 line 150 income reported $5,217. I do not accept those amounts as reasonably representing his true income for child support purposes. While I accept that he borrowed money from friends during the years 2013 to 2014, his own financial statement sworn the 16th September 2014 and the 31st October 2014 reported an income of $24,990 from Mojito’s House Ltd.

[33] This did not include cash tips and other benefits received from Mojito’s House Ltd. The respondent, in his evidence, stated that he practically lived at Mojito’s House for a portion of 2014 and 2013. In addition, Mojito’s House Ltd. supplied a car and other benefits to him, as well as cash tips. No evidence was given during the trial of what the cash tips were other than the respondent’s reference to them as assisting him in his living expenses.

[34] The respondent obtained a second job in 2015 at Elmwood Kitchens. This work at Elmwood Kitchens, with the employment income at Mojito’s House Ltd., brought his 2015 reported income to about $30,737, which is in keeping with the history of his income in Canada.

[35] In 2013, the parties were still married and living together, so I do not need to deal with the respondent’s 2013 income.

[36] I conclude that in 2014 when the parties separated, his own declared income of approximately $24,990, together with cash tips and other benefits received from Mojito’s House Ltd. when he was practically living there, could easily have brought his income to approximately $35,000.

[37] I conclude the same applies in 2015. When adding in undisclosed cash tips and other benefits derived from Mojito’s House Ltd., such as automobile, food, and drink, to his already declared income of $30,737, the income could easily reach $35,000.

[38] For 2016, and moving forward, if he is hired on a permanent fulltime basis at the Casino, his income could exceed $40,000 annually.

[39] For child support purposes I calculate the income of the respondent as follows:

2014 $35,000 imputed to the respondent 2015 $35,000 imputed to the respondent 2016 $35,000 imputed to the respondent

[40] Included in the orders made, will be an order for continuing annual disclosure by the respondent to the applicant of his income tax returns and notices of assessment from CRA for as long as child support is payable. The disclosures shall be due by July 1st of each year, with the first such disclosure to commence July 1, 2017.

Child Support

[41] The calculations for child support for 2014, 2015 and 2016, in accordance with the child support guidelines and the respondent’s imputed income, are attached hereto as Schedule “A”.

[42] The parties were separated May 19, 2014 and there is one child of the marriage, Romel Luis Faife Cruz, born April 4, 2003.

[43] There is no court order currently with respect to child support.

[44] From the evidence, I accept the following:

• The respondent paid $200 per month in child support from and including June 2014 through to December 2014 (7 months X $200 = $1,400).
• For January, February and March 2015, the respondent paid $200 per month (3 months X $200 = $600).
• In April 2015 through to and including October 2015, the respondent paid $315 per month (7 months X $315 - $2,205).
• In November 2015, the respondent paid $200.
• In January 2016, the respondent paid $253.
• In 2016, for April, May and June, the respondent paid $254 per month (3 months X $254 - $762). In March 2016, he paid $257.

[45] Therefore, the total amount paid by the respondent to the applicant for child support by way of direct cash payments to the applicant from 2014 through to June 2016 is $5,677. (See Schedule “B” attached.)

[46] I do not accept, as the respondent submits, that he overpaid child support. The respondent owes guideline child support from June 2014 through August 2016, an amount of $8,181. The respondent has paid $5,677 as calculated herein. Therefore, the respondent still owes to the applicant, on account of child support from June 2014 through to August 31, 2016, the amount of $2,504. This shall be paid to the applicant by the respondent from the respondent’s share of the net proceeds of the sale of the matrimonial home.

[47] Thereafter, commencing September 1, 2016 and on the first day of each and every month thereafter, the respondent shall pay to the applicant on account of child support the amount of $303 per month. This is based on an imputed income to the respondent of $35,000.

[48] Annually, and for as long as child support is payable, the respondent shall disclose to the applicant a copy of his income tax return and notice of assessment from CRA by July 1st of each and every year, commencing July 1, 2017 and each year thereafter.

Equalization of Net Family Property

Matrimonial Home

[49] The matrimonial home is the least contentious aspect of the parties’ equalization of net family property.

[50] The parties purchased their matrimonial home on or about December 2011. This home was situated at 6797 Ailanthus Avenue, Niagara Falls, Ontario. It was jointly owned by the parties.

[51] The matrimonial home was sold on or about February 27, 2015 for $275,000.

[52] After payment of the first mortgage, legal fees, and other expenses associated with this sale, the net proceeds in trust were $36,794. Subsequently, the parties consented to the release of $5,000 to each of them currently leaving $26,794 in trust, pending judgment of this court with respect to the equalization of their net family property.

[53] The respondent in his written submissions stated that, with respect to the matrimonial home, he paid $2,654 more on the down payment than the applicant. Accordingly, the respondent requests “an unequal distribution of 50% of this amount”.

[54] The respondent has also submitted that during the marriage he paid a larger share of the debts outstanding to the applicant’s brother-in-law and therefore, as such, currently seeks an equalization adjustment in his favour.

[55] The legal test for this court to consider whether an unequal division of net family property should occur is unconscionability. This test has not even remotely been met.

[56] Mere unequal contributions made by the parties during marriage to the acquisition of assets are not sufficient to meet the test of unconscionability and unequal division of property.

[57] There is no basis in law or in fact for an unequal division of net family property in the circumstances before me.

Property in Cuba

[58] One of the most contentious issues in this trial dealt with property in Cuba.

[59] The applicant claims, prior to moving to Canada, that the parties built a house in Villa Clara, Cuba, on the second floor of the respondent’s parents’ home.

[60] This apartment was registered in the respondent’s name and the parties lived there from the date of their marriage in Cuba, that is, from November 12, 1999 until they immigrated to Canada in March 2005.

[61] Upon their immigration to Canada, the property was transferred by the respondent back to his father’s name.

[62] The position of the applicant is that when the parties immigrated to Canada, in order to prevent the Cuban government from confiscating the property, the property was transferred back into the respondent’s father’s name, but was really to be held in trust for the parties. She states that this property currently has a value of approximately $45,000 Canadian.

[63] The respondent states his father owned Villa Clara and granted him permission to build a separate apartment on top. The respondent states he was working in Cuba at the time and he paid for the entire second floor renovation which was completed in the summer of 1998, all prior to the date of marriage.

[64] Documents submitted by the respondent and translated from Spanish to English by a certified translator, confirm a building license permit granted to the respondent by the Cuban government dated November 16, 1997. The permission granted by the respondent’s father to the respondent was “a donation of rooftop dated September 29, 1997”.

[65] On November 12, 1999, when the parties married, they moved to the second floor apartment. At the time the parties emigrated from Cuba in 2005, Cuban law required that one could not sell, rent, or otherwise dispose of private real estate. The only option to avoid forfeiture by the Cuban government of the property was to transfer it back to the respondent’s father, which was done.

[66] A document submitted into evidence and translated from Spanish to English confirms the transfer of the apartment back to the father of the respondent noted as a “right of tenure in perpetuity”. Nowhere in any of the documentation is there a mention or a hint of property being held in trust.

[67] The evidence, which I accept, is that shortly after the applicant, respondent, and their child immigrated to Canada, the respondent’s grandfather moved into the apartment in Cuba.

[68] I accept evidence that the law changed in Cuba effective November 10, 2011. This change allowed for the purchase and sale of property in Cuba. The applicant therefore states that when the law changed, the apartment could be sold or transferred for a value. However, by 2011, the property was already in the respondent’s father’s name and had been for a considerable length of time.

[69] I conclude, at the date of separation in May 2014, the respondent did not own the Cuban property. When the parties left Cuba, the property had zero value because if not transferred back to the respondent’s father, it would be forfeited to the Cuban government. When the law changed in 2011, the respondent did not own it. There is no evidence of any trust. Thus, I ascribe nil value to the Cuban property.

Mojito’s House Ltd.

[70] The other major contentious issue between these parties is Mojito’s House Ltd. a Latin-American bar and restaurant located in Niagara Falls, Ontario.

[71] This business was incorporated July 12, 2012 and the two shareholders were the respondent and his business partner Raywer Rivas Perez with each holding 50% common shares.

[72] Throughout the trial, there was much discord and disagreement between the applicant and the respondent about who contributed what to the startup of this business representing the respondent’s 50 common shares in the business, much of which was not relevant to the issues to be determined.

[73] The opening of the business occurred October 14, 2012 according to the applicant. The respondent indicates the business opened November 2012. Nothing specific turns on the different dates. I accept it was November 2012.

[74] The applicant states that approximately $35,000 was her contribution to the startup of business. She used her savings, various credit cards, and joint lines of credit.

[75] The respondent states he invested about $40,000 in the startup of business and his other business partner invested the same amount. The applicant and respondent each dispute the other’s contribution. Given that the business was incorporated during the parties’ marriage, ultimately the issue of who contributed what to the start of this business is largely moot.

[76] I accept that both contributed and paid for the startup of the business through the use of joint lines of credit, credit cards, and their savings.

[77] I have no business valuation report as to the value of the business on the date of valuation, which is May 19, 2014.

[78] The evidence which I accept confirms that the business was sold by the respondent and his business partner, with the closing date of October 29, 2015.

[79] The sale price was $30,000. The purchaser was Aleksandra Zuder.

[80] Ms. Zuder testified during the trial and I find her evidence compelling and credible.

[81] She had been a patron of Mojito’s House Ltd. Her husband was a dance instructor and gave salsa lessons at Mojito’s House Ltd. approximately once per week.

[82] In her evidence she stated that she could observe was poor customer service at Mojito’s House Ltd., but clearly felt that Mojito’s House Ltd. had great potential if run properly.

[83] She had prior experience in the restaurant business as her parents had owned a restaurant previously in 2004.

[84] Throughout the trial the applicant maintained that the purchase by Aleksandra Zuder of the business was a façade, that the sale was a non-arm’s length transaction, and that the sale price was not the true value of the business.

[85] The applicant stated in her evidence that she believes that Mojito’s House Ltd. is still owned by the respondent, and that the respondent is owed by Mojito’s House Ltd. a shareholder’s loan in the amount of $57,354. I find no evidence was proffered to support such claims.

[86] From the evidence submitted, the agreement to purchase the 100 shares of the respondent and Mr. Perez was the subject of a purchase and sale share agreement prepared by legal counsel and dated October 22, 2015.

[87] The share purchase agreement listed the sale price for the shares at $30,000 subject to adjustments.

[88] Ms. Zuder testified that she advanced $15,000 in advance of the closing so that the vendors could ensure all debts outstanding by the business were paid effective the closing date. The balance due was paid on the closing date of October 29, 2015.

[89] Subsequent to the closing, a full reporting letter was provided by legal counsel to the vendors confirming the sale for $30,000 effective October 29, 2015.

[90] I accept the evidence of the respondent, that after payment of the outstanding debts of the business, the net proceeds remaining were approximately $3,000 divided by two shareholders leaving approximately $1,500 for each of the respondent and his business partner.

[91] Further, the corporate profile for Mojito’s House Ltd. effective October 29, 2015 reflects that Aleksandra Zuder is the officer and director of Mojito’s House Ltd.

[92] The applicant submitted in her evidence that the business was sold for $45,000, however she proffered no evidence to support this. The evidence that I rely on, and is substantiated by the legal agreements in place, clearly supports that the business was sold for $30,000.

[93] I have no evidence, as submitted by the applicant, that the transaction for the sale of the business was in any way a non-arm’s length transaction, that the sale was a façade, and the respondent is still running the business. I find these are serious allegations made boldly by the applicant, with no evidence to support same.

[94] The applicant further alleges by way of hearsay evidence that an offer of $60,000 to purchase the business came on or about June 2015. I find no evidence was proffered of any offer for $60,000 as suggested by the applicant.

[95] The applicant also asserted during this trial that the respondent’s share of the business was valued at $45,000 and she had interested buyers. However, no evidence was presented to substantiate such claims.

[96] The evidence which I do accept is that the business was sold for $30,000 to Ms. Zuder.

[97] I find, further, there is no evidence that the business was worth more than it was sold for or has greater value than it was sold for.

[98] It is clear the business was established during the marriage of the parties. It existed on the date of valuation and, as such, it is subject to equalization of the parties’ net family property.

[99] The best indicator of the value of an asset such as a business is what that asset would sell for on the open market. This is likely or close to the same value effective the date of separation.

[100] It is clear from all of the financial evidence relating to Mojito’s House Ltd. that the business, while with the respondent and his business partner, was not performing well.

[101] Financial statements filed for the business and submitted in evidence revealed 2013 losses of $37,632, 2014 losses of $41,146, and 2015 losses of $43,691.

[102] At the end, with very little to rely on with respect to the value of the business, I conclude that the appropriate value of the business, in this case, is the actual sale value less the liabilities outstanding.

[103] Further, at the time of trial, the evidence of the respondent was that, since July 2015, he was residing at the residence of his girlfriend at 6492 Laguna Court, Niagara Falls, Ontario.

[104] The applicant submitted that the home was really purchased by the respondent and the respondent had registered title to the name of his girlfriend. The land registration documents submitted into evidence confirmed title to the property and mortgage all in the name of the respondent’s girlfriend.

[105] Again, no evidence was proffered by the applicant to support her claims. There is a clear onus on persons making claims to submit evidence to support such claims on the balance of probabilities.

Debts

[106] Separate and apart from Mojito’s House Ltd. and the Cuban property, the parties also largely disagreed with respect to their debts.

[107] The parties provided very little evidence with respect to debts on date of valuation, save and except that the applicant filed a net family property statement without going through much of the specific evidence with regard to that statement. The respondent did the same. The applicant’s net family property states that the respondent owes her $61,768. The respondent’s net family property states that the applicant owes him $15,633 on account of equalization of net family property.

[108] What I am able to infer from the evidence of the parties, from their comparative net family property statements and from their various sworn financial statements, is reflected in Schedule “C” attached hereto.

[109] Firstly, the jointly owned matrimonial home has been sold and it is appropriate that the sale proceeds be equally divided. (Subject to child support adjustments)

[110] Secondly, I have already ascertained that the Cuban property, for purposes of the equalization of net family property, has zero value.

[111] Thirdly, I have already assessed that the net proceeds of the business, less the debts paid, leave an equity of $1,558 for the respondent and the same for his business partner. I accept the evidence of the respondent that the business was sold for $30,000 and the debts paid from the sale proceeds are as follows:

• GST/HST $16,013
• Garbage Bin $ 321
• Bell Canada $ 143
• Exit signage $ 158
• Employee Payroll $ 4,542
• Enbridge Gas $ 140
• Moneris $ 2,395
• WSIB Premium $ 252
• Legal Fees & Disbursements $ 2,919 TOTAL $26,883

[112] Therefore, the value of the business on the respondent’s side of the net family property statement is $1,558.

[113] I have added in those debts that, when comparing net family property statements of the applicant and the respondent, are similar to both.

[114] As outlined in Schedule “C”, both parties have zero net family property as a result of the debts incurred during the marriage. (Net family property cannot be lower than zero)

[115] Therefore, the applicant’s and respondent’s claims for equalization of net family property are dismissed. Unfortunately, these parties at the end of their marriage had far more debts than assets. In the end, the applicant is left with $15,901, the respondent is left with $10,893, and each has debts that far exceed these amounts.

Household Contents

[116] Lastly, the parties could not agree on distribution of household contents and jewellery. The applicant submitted that household contents are minimal, and her financial statement reflects the household contents in her possession as approximately valued at $1,500, together with jewellery at $1,000.

[117] The respondent valued the household contents of the applicant as $7,500, together with an additional $5,000 in jewellery.

[118] There are no proper appraisals with respect to any of the household contents and/or jewellery. Indeed, the parties do not even agree on the contents in the possession of the applicant and the respondent.

[119] The applicant has suggested that the household contents have been divided and that the division is complete.

[120] The respondent disagrees, as he states he has only removed his clothes.

[121] At trial, the respondent stated that he does not wish household articles or jewellery, but a monetary value reflected on the net family property statement.

[122] The respondent has provided photos of the applicant wearing jewellery during the marriage. He has also provided on-line copies of values of jewellery with prices attached, as well as household contents. I have no real information as to what is the correct value for household contents and jewellery nor confirmation of who has what items. I have also noted to the parties that the value for family law is not the full replacement value for either jewellery or household contents.

[123] Therefore, there is no consent with respect to the household contents on distribution and/or value. No proper appraisals are provided by either party. The parties were advised during this trial that a court does not have jurisdiction to divide household contents and jewellery.

[124] The Family Law Act does not provide for distribution of property in specie. Rather, it provides for payment of money when the net family property of one spouse is less than that of the other. Therefore, the Family Law Act does not support that a trial judge can simply redistribute property between the parties.

[125] In the case of Buttar v. Buttar, 2013 ONCA 517, in quoting Zadegan v. Zadegan, [2002] O.J. No. 2190 (S.C.J.), the Court stated in para. 55:

90 …That Act does not direct the court to redistribute assets in order to make equal distribution. See Berdette v. Berdette (1991), 3 O.R. (3d) 513 (C.A.). Rather, it directs the court to determine the net family property of each spouse. Then, if one spouse’s net family property is less than that of the other, s.5(1) provides for equalization. … [T]he powers of the court to give effect are set out in s.9(1):

91 Thus, while s.9(1) permits the court to transfer property in order to satisfy an obligation imposed by the order, this is not the same thing as rearranging ownership of assets. …

92 Accordingly, the court could order the transfer of an asset between the parties in order to satisfy an equalization payment, or part of it, but cannot order the transfer of various assets between the parties in order to bring about an equitable distribution of assets.

[126] The Family Law Act calls for an equalization payment. It does not call for a specific entitlement to receipt of a division of property.

[127] The parties do not agree on who has what. The court cannot distribute assets in specie. The court could order the sale of all household contents and/or jewellery and order division of the net proceeds. This would cause further huge acrimony since the parties agree on nothing.

[128] We are now approximately two years post-separation. Household contents and jewellery likely have little value or, at least, a lot less value than the parties think. Adding household contents and jewellery to the net family property would likely not change the fact that the net family property of both is still zero. Under these circumstances, I decline to make any order with respect to household contents and jewellery.

Summary of Orders Made

[129] Below, is a summary of all orders made:

Pursuant to the Executed Consent Dated February 4, 2016:

(1) The applicant Lidania Cruz Moreno, shall have custody of the child, Romel Luis Faife Cruz, born April 4, 2003. (2) The respondent, Daelys Faife Hernandez, shall have access with the child one Sunday per month from 12:00 p.m. to 8:00 p.m. The Sunday shall be the first Sunday of each month unless the parties agree otherwise. (3) The applicant shall actively encourage the child’s attendance at the access and the respondent shall ensure he plans appropriate activities for the child. (4) The respondent shall have such further access with the child as the parties agree or as the child requests.

Consent Orders made at the Beginning of Trial:

(5) The applicant mother shall be at liberty to renew the child’s passport, both Canadian and Cuban, and other identity documents without the consent and signature of the respondent. (6) The applicant mother is permitted to travel with the child, including outside of the country, without the written consent or signature of the respondent. (7) The applicant and respondent shall share the s.7 expenses of the child on a 50/50 basis, provided that the respondent provides in advance his prior written consent, which consent shall not be unreasonably withheld. (8) All spousal support claims are dismissed. (9) The divorce is severed from the corollary issues and may proceed by way of uncontested affidavit of the applicant.

[130] In addition, the following is a summary of the orders made by the court as a result of this trial:

(10) The respondent’s income shall be imputed at $35,000 per annum for purposes of child support for 2014, 2015 and 2016. (11) The respondent shall pay to the applicant child support for the child, Romel Luis Faife Cruz, born April 4, 2003, the sum of $303 per month commencing September 1, 2016 and continuing on the 1st day of each and every month thereafter. This is based on imputed income of the respondent for 2016 of $35,000 per annum. (12) Support deduction order shall issue. (13) Retroactive child support owed by the respondent to the applicant from June 1, 2014 through to August 1, 2016 is fixed at $2,504. This amount of $2,504 shall be paid by the respondent to the applicant from the respondent’s share of the net proceeds of the sale of their matrimonial home. (14) The respondent shall annually disclose to the applicant his income tax return and notice of assessment each and every year for as long as child support is payable. The disclosure shall occur each and every year by July 1st with the first disclosure to commence July 1, 2017. (15) The net family property of both the applicant and respondent is nil. With regard to the amount of $26,794 remaining in trust as the net proceeds from the sale of the matrimonial home, the wife shall receive $15,901 (calculated as her half at $13,397 plus $2,504 in child support arrears) and the respondent shall receive $10,893 (calculated as his half at $13,397 less $2,504 owed as child support). (16) Each of the applicant’s and respondent’s respective claims for equalization of net family property is dismissed. (17) There is no order with respect to household contents and jewellery.

Costs

[131] The applicant has been more successful than the respondent on the issues of imputation of income and child support arrears.

[132] The respondent has been more successful on the issues dealing with the Cuban property and Mojito’s House Ltd.

[133] Both applicant and respondent have been unsuccessful regarding equalization of net family property issues and issues regarding household contents and jewellery.

[134] Given the mixed success of both parties, there is no order as to costs.

Maddalena J. Released: August 17, 2016