Court File and Parties

KINGSTON COURT FILE NO.: 25/15 DATE: August 23, 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Charlene Victoria Fawcett, Applicant – and – Timothy Robert Fawcett, Respondent

COUNSEL: Jillian Burford-Grinnell, for the Applicant John F. Black, for the Respondent

HEARD: July 25, 26, 27, and 28, 2016

Reasons for Judgment

MINNEMA J.

Nature of the Case/Issues

[1] The parties cohabited for three years before marrying on May 14, 1994. They separated on July 24, 2013. They have three female children between them, currently ages 21, 19, and 17. The issues of custody and access were settled before trial and I have made that order. The claims for spousal support both ways were withdrawn on consent in the course of the trial, and are dismissed. The parties agreed that each would provide irrevocable life insurance to the other of $200,000 for as long as child support is payable and that they would both maintain the children on any extended health and medical plans available to them through their employment. Those orders are made on consent. The remaining issues for me to determine, then, are child support and special expenses from the date of separation forward, and various property issues.

Background Facts

[2] The applicant wife is 51 years old. She had obtained an engineering degree before the parties met, and both a Masters of Business Administration and a Masters in engineering before they separated. She worked for the Canadian military before the parties married, until she retired in 2008. She was the main income earner in the home throughout, and her military employment required a number of residence changes given different postings. Anticipating her retirement, she trained to be a financial planner/advisor, and has had a successful second career thus far in the financial services industry. She is currently employed with the Royal Bank of Canada and her earnings are from commissioned sales.

[3] The respondent husband is also 51 years old. During the course of the relationship he obtained his undergraduate degree and then attended teacher’s college. He began working as a substitute teacher in 2005. Shortly afterwards the family relocated to Alberta as the applicant’s last posting, and he found some related employment there. Upon returning to Kingston in 2008 his teaching time increased until he reached permanent full-time around 2011.

[4] The children all seem to be physically and socially active. As of this fall, the oldest child Cariston (21) is entering her fourth year at Concordia University in Montreal. The immediate work or education future of the middle child Genevieve or “Genny” (19) who has completed one year of university is unknown. The youngest child Emily will be going to Grade Twelve in September with another possible year of high-school (a “victory lap”) after that.

Property Issues

[5] The parties agreed that the matrimonial home at 3996 Clarke Road, Bath, Ontario would be sold. I therefore order that it be listed for sale within 15 days with a real estate agent to be agreed upon by the parties. The applicant shall remain in the matrimonial home and cover the carrying costs, and maintain it in good condition until its sale or further order or agreement. Both parties shall cooperate fully in all respects in the listing and sale. The net proceeds shall be divided equally. ‘Net proceeds’ refers to monies left over after the payment of real estate commissions, legal fees for sale, and adjustments in the closing of the sale transaction including the pay-out of existing encumbrances. There is wide difference between what each party believes the home is worth. I encourage them to consider the recommendations of their real estate agent and to be flexible about the listing price. If they cannot agree on terms of the listing, listing price, or sale price, either may bring a motion.

[6] The remaining property issues were focussed in two areas. First were a number of disagreements regarding post-separation adjustments. A complicating factor was that although they separated on July 24, 2013, the respondent husband did not move out until March 8, 2014. The second area, and the larger issue, was how the equalization payment should be paid.

1. Disputed Items Regarding Property Adjustments

The Respondent’s Date of Separation Tax Liability

[7] The respondent had a tax liability to the Canadian Revenue Agency on the date of separation relating to a previous tax year. He included this in his Net Family Property (“NFP”) as required pursuant to section 4 of the Family Law Act, R.S.O. 1990, c.F.3, as amended. The applicant felt it should be treated as joint because it arose as a result of past income splitting. I do not see how that is relevant. Further she claimed that the debt was paid by the respondent in part from joint funds. There was no dispute that the respondent was paying the debt for a period after separation from a joint account. However, the applicant’s own evidence was that this account was treated as his and not as the separate joint “family” account. The respondent testified that he paid this debt in full. I see no basis for a post-separation adjustment.

The Applicant’s RESP and RESSOP

[8] The applicant had a RESP (registered education savings plan) and what was called a “RESSOP”, both in her sole name. The latter acronym appears to be a combination of profit sharing, deferred profit sharing, and savings plans the applicant held through her employer. While these have been properly included in her NFP, she claims that she withdrew the funds from both plans after separation for “family expenses”, and she wanted some credit. In my view, this would be improper. She controlled these assets. She used them to satisfy her expenses and family obligations including her share of the children’s education expenses.

Household Expenses When the Parties Cohabited While Separated

[9] The applicant was seeking contribution from the respondent relating to a number of debts for the matrimonial home from the date of separation to the date the respondent left, a period of about seven months. The respondent disputed this claim relying on the consent order of Justice Trousdale dated August 25, 2015. It indicates that he is to pay the applicant $4,800 for his share of the total carrying costs of the matrimonial home since separation, less his claim for occupational rent, and that this amount is to be deducted from the applicant’s equalization payment once determined or by agreement between the parties. There was no agreement between the parties for a different treatment, and no occupational rent claim.

[10] The applicant asserted that she did not recall agreeing to that order and, despite it referring to the “total” post-separation expenses related to the home, that it did not cover all costs. She said she understood that she was going to be paid immediately, despite the order saying different on its face. There was no motion or request to set it aside. Further, in January of this year she relied on that same $4,800 figure when attempting to set it off against her share of extraordinary expenses. I cannot see any grounds for post-separation adjustments for this time period.

The Joint Mortgage

[11] The applicant argued that the payout for the joint mortgage should not change from the separation date value. This position was clumsily stated, and what she was really seeking was a full credit for the reduction of the mortgage principal since separation because she occupied the home and paid the mortgage. She maintained this was fair, as in her view the respondent did not contribute to the home expenses after separation. However, as noted above, the expenses up until August of 2015 have already been dealt with. In a sense this was another attempt to circumvent the August 25, 2015 consent order. Further, the respondent left the home at the applicant’s insistence and the applicant has had exclusive use of the joint property and therefore his equity ever since. The applicant had expressed an interest in buying out the respondent, so she did not push for a sale. It is not clear to me why I should make the requested adjustment, and I refuse to do so.

2. The Equalization Payment

[12] The parties agreed that the value of the Canadian Forces pension for the purposes of the net family property was $747,200 all inclusive. It was therefore not valued by an actuary. The parties did call an actuary Mr. Martel to give an opinion on the appropriate tax rate to apply to discount that pension, and on hearing his evidence they agreed to 24.7 percent. The calculation was added as a valuation date liability on the applicant’s side of the NFP statement.

The Applicant’s Argument for a Splitting of the Income Stream or to Delay Payment

[13] Mr. Martel was also retained to provide an opinion as to how the applicant’s Canadian Forces pension could be used to satisfy the equalization payment required by per section 5(1) of the Family Law Act. When she retired in 2008 the applicant began receiving the pension. Mr. Martel’s evidence did not vary from his report. He indicated that the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II, (“PBDA”) governed and that it does not provide for the payment of a monthly amount from the pension to the spouse of a member following a marriage breakdown, even when the pension is in pay at the time of separation. I have reviewed that Act and agree. As Mr. Martel noted, this is different from the treatment of a provincially regulated plan.

[14] Notwithstanding the above, the applicant’s position in closing submissions was that I had ability to divide the pension as an income stream at source. Her counsel argued at length that my authority was the Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Suppl.). On the plain reading of that Act, juxtaposed to the PBDA, it does not apply. I find that a one-time lump sum payment from the applicant’s Canadian Forces pension is the only way it can be drawn on to satisfy the equalization payment, which I note is consistent with what the applicant herself was told directly by National Defence back on August 28, 2014.

[15] There was no dispute that the court would use the applicant’s Canadian Forces pension to satisfy the equalization payment; the only dispute was whether it would be by way of a lump-sum transfer or an income stream. The applicant’s alternate position was that if the court were to find, as I have, that only a lump-sum payment from the pension is available, then I should delay that transfer ten years based on hardship per section 9(1)(c) of the Family Law Act. However, her counsel did not explain how or why the immediate lump sum payment would create hardship. Not only did she not address it, but it is hard to understand the basic argument given that her lead position was to split the income stream at source. The pension income that the applicant is currently receiving would be similarly reduced in both scenarios. Further, the applicant’s counsel did not provide any plan or proposal; she simply made the argument without detail or thought as to how it would work. Specifically she did not address how the respondent would be fairly compensated for such a delay. My sense was that rather than wanting to avoid hardship, which was not established, the applicant was seeking to gain an advantage for herself at the respondent’s expense. I decline to make that order.

The Respondent’s Proposed Equalization Gross-Up

[16] The last issue on the equalization payment was the request by the respondent to gross it up by 24.7 percent to account for the taxes he will pay when he realizes on it. He relied on the recent decision in Spurgeon v. Spurgeon, 2016 ONSC 14. I agree and accept the principle that, even with the equalization being rolled over into a locked-in RRSP with no immediate tax consequences, a gross-up should occur. The respondent is entitled to receive his equalization payment tax free, as if it were a cash payment, and it would be unfair to him to eventually pay tax on it without adjustment. Having said that, this case is different than Spurgeon in a number of important respects. There the plan member spouse recognized the need for a gross up and agreed to 23 percent. Here the claim for the gross-up was not mentioned until closing submissions, almost as an afterthought, and there was no suggestion that the tax rate was agreed.

[17] Mr. Martel indicated that the value of the Canadian Forces pension for inclusion in the Net Family Property needed to be reduced by 24.7 percent to adjust for the applicant’s expected tax liability on withdrawal. In arriving at that percentage he used actuarial assumptions unique to the applicant including her expected income from all sources. The rate needed now for the gross-up, however, is obviously different. It is to adjust for the equalization payment being taxed in the respondent’s hands. It is his tax rate that needs to be determined, not the applicant’s. The only evidence I have about the respondent’s average tax rate after retirement is also from Mr. Martel who indicated it is expected to be 11.3 percent. In arriving at that figure he looked at actuarial principles and assumptions unique to the respondent including his expected sources of income on retirement, the main one being his teacher’s pension. Mr. Martel added that any additional sources of taxable income after retirement would increase the average tax rate. While I have no doubt that the income the respondent will receive from the locked-in RRSP into which his equalization payment will be transferred would be such an additional source of income, I do not have the evidence or the expertise to determine how much the average tax rate would increase. There is nothing to suggest that it would increase to 24.7 percent. Court decisions have to be based on evidence. The only evidence before me is that the respondent’s rate would not be lower than 11.3 percent and I therefore apply that rate.

Summary on Equalization

[18] The equalization payment owed to the respondent is $286,024, which, less the $4,800 post-separation adjustment per the August 25, 2015 court order, brings the total to $281,224. These calculations are set out in the ‘Respondent’s Position - Form 13C: NFP Comparison’ filed in closing submissions and agreed to by the parties. The only disagreements related to the post-separation adjustments that were dealt with above, and they do not change those numbers. The applicant shall therefore pay to the respondent $313,002 by way of a PBDA transfer from her Canadian Forces pension, which is the $281,224 equalization payment grossed-up for taxes by 11.3 percent.

Child Support from the Date of Separation

[19] The following prevented the parties from doing their table calculations relating to child support: (1) they could not agree on the applicant’s income and specifically what if any business deductions would be allowed; (2) they could not agree on how to treat the respondent’s RRSP income in 2014; and (3) they disputed where the children lived and/or who should be paying child support during a fixed number of months.

The Applicant’s Employment Expense Deductions

[20] The applicant’s employment expenses were detailed in her 2014 and 2015 full income tax returns in evidence as $25,928 and $25,821 respectively. As a financial advisor she drives to her clients. She gets paid based on commissions. She has considerable advertising and promotion expenses. She went to a ski resort in 2014 and to Florida in 2015 with children and wrote off part of the accommodation on the basis that for her it was a “working holiday”. Other than that, there is little remarkable about the listed expenses; some are obvious business expenses, and some, like the home office deductions, were for expenses that existed before her RBC employment started.

[21] Section 16 of the Federal Child Support Guidelines, SOR/97-175, as amended (“Guidelines”) reads as follows:

16. Subject to section 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Schedule III does not preclude, and indeed allows, most of the types of deductions claimed by the applicant. There is a presumption in favour of the Guidelines amount. However, section 19 of the Guidelines reads as follows:

19(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following: … (g) the parent or spouse unreasonably deducts expenses from income;

19(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[22] I was only given two positions from the parties on the treatment of these expenses. The respondent’s position was that the applicant should only be allowed a fixed $5,000 deduction each year. The applicant’s position was that 50 percent of her claimed expenses for tax purposes should be subtracted from her commission based earnings.

[23] I accept that there are ‘soft’ expense claims that need to be examined with a view to being added back into the applicant’s income, such as a portion of her vehicle expenses and food and entertainment expenses, the home expenses, and the lodging for the ‘working vacations’. However, there are also ‘hard’ expenses that are reasonable for a person in her line of work and should be almost fully allowed. In my view the respondent suggesting a fixed amount of $5,000 for all the expenses when the applicant’s advertising and promotion expense alone was $8,452 is not in any way realistic.

[24] The applicant maintained that all the expenses had been vetted by her accountant and the Canadian Revenue Agency and were therefore legitimate. There was little actual evidence about the meals and entertainment, the training costs, and the accounting/legal fees. It is obvious to me that the lodging and the home expenses must be added back in. Given the evidence regarding the need for her to drive for her employment juxtaposed to her evidence of driving to numerous children’s activities, I would add back in about half of that expense.

[25] I do not intend to re-write the applicant’s employment expense deductions dollar for dollar from a child support perspective; it is neither necessary nor appropriate: Reid v. Holland, [2003] O.J. No. 3901 at para. 36. In my view the applicant’s position that 50 percent of the expenses allowed by CRA be imputed for the child support calculation is entirely reasonable provided that, given the potential for abuse relating to what she considers ‘working holidays’, she does not markedly exceed what she has claimed in the two previous years. I would therefore impute $13,000 back into her income for current and past years.

The Applicant’s RRSP Income for 2014

[26] It is clear from the Income Tax Returns and it is conceded by the respondent that in 2013 the applicant had a $23,820 deduction from her income for the purchase of an RRSP. By the operation of the Guidelines, the income that was used to purchase that RRSP was not deducted from her income for child support calculations. The applicant felt she needed to cash in that same RRSP the very next year at almost the exact same value ($23,800). She takes the position that the RRSP income should not be included in her 2014 income for the purposes of child support because it was a non-recurring event. The respondent takes the position that the RRSP withdrawal in 2014 should be included because it is a source of income as set out in section 16 of the Guidelines. I find that it would be unfair to have the same $23,800 considered as income for child support and special expenses twice in back to back years. Therefore, pursuant to section 17 of the Guidelines and Ludmer v. Ludmer, [2014] ONCA 827 (Ont. C.A.) at paragraph 23, I exclude it.

The Disputed Months

[27] As noted the parties could not agree where children were living and/or who should be paying child support for a number of specific time periods.

(a) July 2013 to February 2014

[28] From the date of separation to the time the respondent left the home, the applicant claimed child support. She maintained that the respondent contributed nothing, including nothing to Cariston’s university. However, the respondent’s bank account records corroborated his evidence that he continued to contribute to the household expenses as he had when the relationship was intact, and that contrary to the applicant’s assertions he did contribute to Cariston’s university expenses. Further, it was not established that one parent had the children primarily in their care while they all lived under the same roof. In my view, no clear child support obligation was made out for this time period, and I therefore make no order.

(b) May 2014 to January 2015

[29] Much was made in the evidence about the disagreement where the children were living in May of 2014 and from September 2014 to January 2015, a total of six months. The respondent’s position was that Genny lived with him predominately in May, September, October 2014 and January 2015, and that in November and December 2014 the time with Genny and Emily was shared. He gave context and specific dates, and was not seriously challenged in cross-examination. The applicant denied those times, but her evidence was more general and not as contextualized. While I appreciate that it can be difficult to recall events over two years ago, for those reasons I accept the respondent’s evidence and position. As just as one example, the first dispute was over where Genny resided in May of 2014. The applicant stated as a fact that Genny was with her; it was a conclusionary statement, not evidence. However, when cross-examined she was asked whether it was fair to say that Genny was living with the respondent by the start of May, to which she replied it was a few weeks later. In comparison, the respondent in his evidence said that Genny and her dog came to live with him by April 20, 2014 as a direct result of her being charged with stunt driving and the applicant refusing the child access to her vehicle. There was no cross-examination on that evidence.

(c) Genny after the 2015/2016 School Year

[30] The parties were in agreement as to where the children were residing for the majority of time after January 2015. In September of 2015, Genny went off to her first year of University, Cariston went off to her third year, and Emily’s time became shared between the parties. The remaining dispute is over whether Genny is entitled to support after the end of her 2015/2016 school year. The parties agree that she completed her first year at Brock University but is not continuing in that program. She now wants to go to the Royal Military College in Kingston, but may have applied too late for acceptance this fall. Her acceptance is not assured in any event. As of the conclusion of the trial they were still waiting to hear. If she gets accepted her education would be paid. She doesn’t have a job, even for the summer, although she was in the process of making applications. There was speculation that she may take some college courses if the RMC plan does not come through.

[31] The applicant’s position was that as Genny is not enrolled in school and is able to work, the formal table support for her should end as of May 2016. Genny remains living with the respondent and his position was that support for Genny should continue indefinitely, even into the fall, as she is a dependent child. His fall-back position was that as she was still actively seeking to continue her full-time education, support should at least continue up until and including this August.

[32] While the parties have postulated on Genny’s intentions and prospects, I have little evidence and there is much uncertainty around her future. Her taking part-time courses and planning to resume full-time education would not necessarily disqualify her from support, but there is no concrete plan. There is no real evidence about “other cause” in the definition of “child of the marriage” at section 2 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, that addresses why Genny is unable to withdraw from the charge of her parents or obtain the necessaries of life. In my view she should receive table support up to and including August of this year as she was still pursuing full-time education. However, beyond that, the onus rests on the respondent as the one seeking maintenance for a mature child to establish that she is still a child of the marriage. He has failed to do so. If she does not return to full-time education after the summer the support therefore ends as of August 31, 2016, subject as always to a material change in circumstances.

Shared Custody Considerations

[33] I am aware that section 9 of the Guidelines requires me to take into account not only the table amounts but also the increased costs of the arrangement and the conditions, means, needs, and other circumstances of each parent and the child in a shared custody situation. The time with Emily is shared. I heard no submissions or evidence on the latter criteria in subsections 9 (b) and (c). Neither party suggested anything other than the set-off method of calculating support that they had been following. While section 9 was mentioned by the respondent’s counsel in his closing submissions, it was only to caution me that I am required to be mindful of those subsections in making my decision. He did not advocate a different amount. With no comprehensive information about increased costs or means and needs as it relates to the shared parenting, and given the expectation and acceptance of a straight set-off calculation, I find that reasonable arrangements have been made to support Emily while she is in both parents’ care using the straight set-off method.

Summary on Child Support

[34] The parties shall recalculate the support owing from March of 2014 to December 31, 2015 in accordance to the findings I have made above.

[35] Regarding the time period since January 1, 2016 and ongoing, the objective of the Guidelines is to determine child support based on current income. It is an annual amount; payments are monthly but the tables are based on annual incomes. The sources of income in the year for any payor can be numerous and, as in this case regarding the applicant, quite variable. The challenge is to determine the current annual income as best as possible at the relevant time and then, if necessary, make adjustments at year end. This approach fulfills the objectives of fairness and consistent treatment in keeping with the Guidelines. Further, it encourages parents to be as accurate as possible about their income estimates, as there would be no lasting benefit from an artificially low ongoing payment when adjustments will eventually be made. In this regard, the issued order shall include the provisions of the Guidelines that require annual income and tax disclosure.

[36] The applicant’s evidence was that the financial industry in which she works has suffered a marked downturn for 2016. While in 2015 her gross commissions were $117,520, she was projecting an income of $60,000 for 2016, although that was after expenses. With $13,000 of those expenses being imputed back in, this brings the estimated commission income up to $73,000. Adding the pension income of $41,570 the total is $114,570. The applicant’s ongoing set-off child support obligation for this year shall be based on that estimated income and counsel shall recalculate the arrears of support for this year to date accordingly. Everyone appreciated that once the equalization is affected the applicant’s pension income will decrease and the child support will need to be adjusted.

Special and Extraordinary Expenses

[37] As a quick summary of section 7 of the Guidelines, the court may order spouses to provide an amount to cover all or any portion of the listed expenses if they meet the two-part test of being both reasonable and necessary. The guiding principle is that the amount of the expenses is to be shared by the spouses in proportion to their respective incomes after deducting any contribution from the child. Actual and eligible subsidies, benefits or income tax deduction or credits relating to the expenses must be taken into account.

[38] The applicant’s position in her lawyer’s opening statement relating to Guideline section 7 was that “the issue … that needs to be determined is … there needs to be reconciliation for the expenses incurred by my client for the children up to the interim Order of June 2015.” She then said that her client would “provide evidence as to what expenses were incurred for each child, what payments, if any the Respondent made to the expenses of the children …” She added that “[u]p until December 2015, the parties used “My Family Wizard program” to reconcile the expenses and determine who owed what amounts to whom. My client will provide evidence indicating what amounts still need reconciliation.”

[39] Despite these intentions, the applicant did not provide that evidence or information. Specifically there was no comprehensive evidence about what expenses were incurred for each child or what still needed reconciliation. The applicant did provide a My Family Wizard print-out, but few of the related expenses were referred to in evidence, and the parties did not use it throughout. The applicant herself failed to abide the reconciliation process by trying to set off expenses against an equalization adjustment.

[40] In her closing submissions the applicant’s solicitor repeated the need for a reconciliation of the expenses up to today’s date, and added “I would like to call your attention to Exhibit 9, page two which outlines the expenses incurred for each child and what payments were made by whom.” However, that document only referred to education expenses for Cariston and Genny where the only real dispute appeared to be the applicant’s assertion that the respondent made no contribution towards Cariston’s first year of university. He provided evidence of having made payments. By the applicant’s own reconciliation in that exhibit, with that first year taken out, the respondent over-paid his one-third share. There was no budget for Cariston, no mention of her own contributions, and no mention of the value of the related tax deductions for either child or submissions on how they should be credited. The information for a proper analysis was missing.

[41] While I was frustrated with the applicant’s evidence on section 7 expenses, I do not want to give the impression that my frustration was all one-sided. The respondent did not purport to have a complete summary of the expenses, and his position at times was rigid. In one example he claimed for a hoodie which in my view would not be a section 7 expense. When the mother unilaterally changed the living arrangements for Cariston at university by buying a condominium and then demanding the respondent pay a portion of the monthly costs, he balked. While that was an understandable initial reaction, I did not understand why he then refused to contribute anything towards Cariston’s accommodation until this was addressed in the interim court order.

[42] Given the above, I requested a summary from counsel in their closing submissions that set out all the expenses claimed and the amounts paid so I could at least identify the issues and decide disputes related to the evidence. I gave them an opportunity to talk. I had hopes that the reason the evidence was piecemeal and incomplete was that they had an understanding or were confident they could reach an agreement on most items. Not only was I wrong, but I did not receive the summary requested. When I pointed out to the applicant’s counsel that I could not make decisions on all the expenses incurred for each child if they were not put into evidence, she suggested I could obtain more information by going through other material filed in the Continuing Record. I was left with the overall impression that she was confused about my role, in that she expected me to be her investigator and the parties’ accountant. The respondent’s counsel in his closing at least acknowledged that the evidence of who paid what since separation for section 7 expenses was deficient, and that both parties had failed to provide a full accounting with supporting documents. He conceded that it was therefore open to the court to find that a calculation cannot be made with any certainty.

[43] Putting aside for the moment the failure to list all the expenses or identify the ones that still needed addressing, the respondent’s position was that the way they had been dealing with the splitting of past expenses based on two-thirds applicant/one-third respondent was appropriate. I agree. The applicant, however, took the position that was only an interim without prejudice arrangement and the court was required to recalculate the liability for all expenses back to the date of separation based on the exact fractions of their incomes. She did not put forward calculations of her own, and the exhibit she relied on used the two-thirds/one-third split. By my calculations once the applicant’s income is adjusted for her business deductions the respondent’s actual proportional share of expenses for 2013, 2014, and 2015 was about 26.4 percent, 28.6 percent and 34.8 percent respectively. If anything the treatment of these expenses to date on average has been fractionally more beneficial to the applicant. I therefore find that the sharing of expenses up to trial was roughly proportional.

[44] For the reasons given above, I do not have the evidence required that would allow me, in a way that would be just, to tinker with the parties’ treatment of their section 7 expenses thus far. The onus is on the person claiming section 7 expenses to prove them, and I agree with the respondent’s counsel that this was not achieved by either party in this case. Each party’s request for an adjustment of these past expenses is therefore dismissed. While a necessary result, I want to note that nothing jumps out at me to suggest that this would be unfair overall. Indeed, given the rather casual way these claims were put forward, there was no real sense of injustice from either party.

[45] Going forward, with the applicant’s income this year expected to be $114,570 and the respondent’s expected to be $79,546 per his last Income Tax Return, the proportional sharing of expenses shall be 59 percent by the applicant and 41 percent by the respondent. This is subject to adjustment once the 2016 tax figures are known.

Decision

[46] Orders to go as set out above. The results here are somewhat mixed. However, if the parties want to address me on costs I will accept brief written submissions from each provided that they are received within twenty days. Both parties are also permitted to make a two page costs reply within five days after receiving the other’s submissions.

Mr. Justice Timothy Minnema Released: August 23, 2016