CITATION: OUSLIS v. OUSLIS, 2016 ONSC 6572

NEWMARKET COURT FILE NO.: FC-11-038845-00

DATE: 20161025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRIS OUSLIS

Applicant

– and –

MARCIA LEBOU OUSLIS

Respondent

L. Liquornik, for the Applicant

Marcia Lebou Ouslis, Self-Represented

HEARD: January 12, 13, 14, 15, 18, 19, 20, 21, 22, March 21, 22, 23, 24, 29, May 13, 17, 18, 19, 20, 24, 25, 26, 27, 30, 31, June 1, 2016

REASONS FOR DECISION

VALLEE J.:

Introduction

[1] This matter concerns primarily the calculation of an equalization payment, whether there should be a variation of share, spousal support and child support. Mr. and Ms. Ouslis married on September 8, 1989. By the date of separation, January 1, 2011, they had been married for 22 years and 8 months. After separation, Ms. Ouslis resumed using her maiden name, Knox. Because she signed important documents during the marriage as “ML Ouslis,” I will refer to her as Ms. Ouslis.

[2] On the date of separation, Mr. Ouslis was 48 and Ms. Ouslis was 46. They are parents of four children: N.O., 21, S.O., 15, S.O.1, 13 and Z.O., 10. The parties resided separate and apart in the matrimonial home for a period of time. After Mr. Ouslis left, Ms. Ouslis remained in it until it was sold in June 2015. Both parties now live in rental accommodations. Mr. Ouslis has been in his rental unit since August 24, 2012. Currently Z.O. and S.O.1 reside with their mother and S.O. resides with his father. N.O. completed a university degree in 2016. During her time at university, she spent time at Mr. Ouslis’ home on weekends and during the summer. N.O. has limited contact with Ms. Ouslis. S.O. has none. Custody and access have been resolved.

Issues

(a) What is the net family property of each party?

(b) Does Ms. Ouslis have an interest in assets held by 3832104 Canada Inc.? If so, what is their value?

(c) Are the funds that Ms. Ouslis held on the date of separation, in an I[…] savings account for the children, her property?

(d) Does one party owe the other an equalization payment? If so, how much?

(e) Has Mr. Ouslis recklessly or intentionally depleted his net family property? If so, should there be a variation of share in favour of Ms. Ouslis?

(f) Should income be imputed to the parties?

(g) What amount of child and spousal should be paid? Should child and spousal support be paid retroactively? If so, what is the commencement date? What is the retroactive amount?

(h) Should Mr. Ouslis be reimbursed from the children’s Registered Education Savings Plan controlled by Ms. Ouslis for the amount that he paid for N.O.'s tuition?

The Family’s Corporations

[3] A review of the family’s corporations is necessary in order to understand the issues in this matter and, specifically, Ms. Ouslis’ allegations.

Mr. Ouslis’ Evidence

[4] Mr. Ouslis is an electrical engineer by profession. His focus has been on microchips. For the first eight years of his career, he carried out research and taught at the University of Toronto. Subsequently, in approximately 1995, he left the university and managed a small company called Design Vision for two years.

Xentec

[5] Mr. Ouslis stated that he and Ms. Ouslis had an earlier separation from late 1996 to early 1998 for 18 months. When they separated, the parties were living in North York. They had only one child, N.O.. Mr. Ouslis lived with his parents, Louie and Frances Ouslis. During this period, in 1997, he founded a company called Xentec Inc. with a colleague. Xentec began doing consulting work in electronics and the microchip industry.

[6] Mr. Ouslis stated that and Frances helped him financially with the start-up of Xentec. They lent him approximately $10,000 to buy computer equipment. Initially, the company operated from Mr. Ouslis’ parents’ basement. He stated that he could not have started the company without his parents’ assistance. In addition, they cared for N.O. during the day as both he and Ms. Ouslis were working full-time. She was employed by the government of Ontario. Eventually Xentec moved from the basement and operated from an office in Oakville.

[7] A third partner joined Xentec later on. Each of the three partners had a holding company which held his shares in Xentec. They obtained professional advice regarding setting up the holding companies.

1291480 Ontario Inc.

[8] The Ouslis holding company was 1291480 Ontario Inc. (480). Both parties as well as Mr. Ouslis’ parents held shares in 480. Mr. Ouslis stated that Louie and Frances were allocated shares because he could not have started Xentec without their financial and child care assistance. Mr. Ouslis explained that he and Ms. Ouslis had an equal numbers of shares. His parents also had an equal number of shares but a smaller fraction of them. Xentec’s employees also held shares in Xentec.

[9] Mr. Ouslis stated that Ms. Ouslis knew when 480 was incorporated. He stated that they discussed it. The parties as well as Louie and Frances met at the lawyer’s office to sign the documents and all of the documents were shared among them. He stated that Ms. Ouslis knew that his parents were receiving a smaller proportion of 480’s shares. Mr. Ouslis stated that when 480 was vested with the Xentec shares, Ms. Ouslis did not express any opposition to Mr. Ouslis’ parents’ having shares. She recognized their help.

Sale of Xentec to Insilicon

[10] Mr. Ouslis stated he and his partners were very lucky with Xentec. It grew to a decent business with 16 employees in 2000. In December 2000, they found a buyer for Xentec. The company was sold to a California company, Insilicon.

3843882 Canada Inc.

[11] In order for Insilicon to acquire Xentec’s shares, each partner’s holding company had to be converted to a federal corporation. 480 became 3843882 Canada Inc. (832). The three new federal companies were then purchased by Insilicon. All the shares that staff held were also purchased by Insilicon. The money that everyone received on the sale reflected the number of Xentec shares each company and person held.

[12] Mr. Ouslis explained that the total purchase price for Xentec was just under $16,000,000 U.S. comprised of cash and stocks. The cash component was approximately $3,000,000 in total. It was divided among the partners based on their proportional ownership of Xentec’s shares. The Ouslis’ portion was approximately $1,000,000.

1459336 Ontario Inc. and 3832091 Canada Inc.

[13] Mr. Ouslis stated that he and Ms. Ouslis incorporated three further holding companies to receive the cash from the sale. Two of them are 1459336 Ontario Inc., “336,” and 3832091 Canada Inc., “091.” Both he and Ms. Ouslis were and continue to be equal shareholders in these two companies.

3832104 Canada Inc.

[14] Mr. Ouslis stated that the parties also incorporated 3832104 Canada Inc., “104,” for Louie and Frances to receive their share of the sale proceeds. Mr. Ouslis stated that only he and Ms. Ouslis were at the lawyer’s office on the day that 104’s incorporation documents were signed. They incorporated 104 specifically for his parents. Everyone knew the reason for 104’s incorporation.

[15] Mr. Ouslis stated that he and Ms. Ouslis were the original equal shareholders of 104. Shortly after its incorporation, they transferred their shares to his parents. Ms. Ouslis signed documents to transfer her shares in 104 to Frances. Mr. Ouslis transferred his shares to Louis. Ms. Ouslis did not object in any way to the transfer of 104 to Louie and Frances. Everyone agreed in advance. Ms. Ouslis did not object to their receiving a proportional share of the Xentec sale proceeds. She appreciated their help. Louie and Frances each received a cheque for $189,624.18 US. They deposited them to 104’s bank account. Mr. Ouslis and Ms. Ouslis each received a cheque for $301,525.77 US.

[16] Mr. Ouslis stated that Louie and Frances are still equal shareholders of 104. They owned it on the date of separation and owned all the funds in 104’s bank account. Louie is 82 years old and Frances is 76. Mr. Ouslis stated that he does not own any of 104’s funds.

[17] Mr. Ouslis stated that 091 and 336 received the Xentec proceeds of sale in 2000. This was 10 or 11 years prior to separation. Some of the money was used to pay off the mortgage on the matrimonial home. 091 and 336 also received shares of Insilicon. 104 did not receive any shares. Mr. Ouslis estimated that 104 received approximately 40 percent of what 091 and 336 received.

[18] Mr. Ouslis stated that Ms. Ouslis never complained in 11 years that his parents had received a portion of the Xentec sale proceeds. She never started any legal proceedings in eleven years about the transfer of the corporation to his parents or the allocation of the money to them. From the time when Xentec was sold until the parties separated, the parties had an amicable relationship with Louie and Frances. They took their children over to see Louie and Frances bi-weekly. His parents were always included in birthdays and events. His parents visited them as well.

[19] Mr. Ouslis stated that in the fall of 2005, Louie and Frances asked him to be a director of 104, for estate planning purposes. Mr. Ouslis stated he was not an officer when the shares in the company were transferred to Louie and Frances. Afterwards, he was not a shareholder of that company. As a director of 104, he has signing authority for the corporate account. In addition, he has signing authority over all of his parents’ accounts and investments.

[20] After the sale of Xentec, Mr. Ouslis stated that he continued to work for Insilicon. He started the office in Mississauga where he worked. This was the Canadian operation. Insilicon’s other office was in California. Mr. Ouslis stated that he was a salaried employee. While he was working for Insilicon, his salary was the sole source of income for the family.

Ms. Ouslis’ Evidence

[21] Ms. Ouslis stated that she was not aware that Louie and Frances held shares in 480. She was not aware that the shares in 104 were transferred to Louie and Frances. She states that her signature on the share transfer certificate which transfers her shares of 104 to Frances is a forgery.

[22] Ms. Ouslis also stated that she was not aware that Louie and Frances each received $189,624.18 US on the sale of Xentec. She was not aware of the amount of the Xentec sale proceeds. She questions why Louie and Frances would receive such a large portion of the sale proceeds if they only provided a start-up loan and a basement location for the company. She stated that Frances was paid to look after N.O..

[23] Ms. Ouslis states that because someone forged her signature on the share transfer certificate, she still owns 50 percent of the shares in 104. Accordingly, she owns 50 percent of 104’s assets. This is discussed below.

Ms. Ouslis Leaves Her Employment

[24] In March 2000, after S.O. was born, Ms. Ouslis stopped working outside of the home. She stayed home to take care of N.O. and S.O.. Mr. Ouslis stated that she made a highly valuable contribution to the family in caring for the children and running the household.

Mr. Ouslis’ Evidence

Sale of Insilicon to Synopsys

[25] Mr. Ouslis stated that he worked for Insilicon until it was purchased by another company, Synopsys. He continued to work for Synopsys. He stated that he was doing the same work in the office but for a larger corporation.

Fresco Microchip

[26] Mr. Ouslis left Synopsys to start a new company, Fresco Microchip Inc. (Fresco). It was incorporated in 2005 and designed and sold microchips in the TV industry. He explained that there were four original partners in Fresco who each put money into the company at the outset. Ms. Ouslis was aware that they had invested money in Fresco. Mr. Ouslis explained that when Fresco was incorporated, he and his partners received preferred shares and common shares. They were not purchased. Rather, they were allocated on agreement with respect to the efforts that each partner had made in starting up the company. Mr. Ouslis stated that he also purchased some additional shares.

[27] Mr. Ouslis stated that he divided his initial allocated shares into two groups. One group contained 60 percent of the shares. He placed them in the Ouslis Family Trust (described below). He personally held the other 40 percent. This ratio never changed and in fact existed at the date of separation. It still exists. The beneficiaries of the trust are the children and Ms. Ouslis. Mr. Ouslis stated that Ms. Ouslis knew that the Family Trust held the shares and that she was a beneficial owner of them. On the date of separation, the Trust held only the Fresco shares.

[28] Mr. Ouslis explained that it was very expensive to complete a design for microchips. Tens of millions of dollars were required. Xentec’s work was just to design microchips whereas Fresco also manufactured them. Fresco was financed by two venture capital organizations which provided loans of millions of dollars. As a result, these lending companies acquired shares in Fresco such that the four partners did not have the controlling interest.

[29] Fresco did not fare well as a business. At some point, sales dropped significantly. Fresco owed about $49,000,000 at the time. There was a financial crisis in the world, capital was tight and Fresco had lost its initial market. Its sales had evaporated and it owed it more than what it had in cash on hand or revenue. Fresco could not obtain more capital to enter other marketplaces.

[30] Mr. Ouslis stated that on the date of separation, he was not able to sell his Fresco shares. Fresco was having financial problems and was trying to get more money to stay afloat. The investors would not provide further funding. Mr. Ouslis stated that Fresco was not publically traded on the date of separation. The Ontario Securities Commission has restrictions on selling shares and there were no purchasers for them.

[31] Mr. Ouslis referred to the Fresco consolidated financial statement dated September 30, 2012. He stated that this is a public document. It included an independent auditor’s report together with two years of financial information. The statement was prepared by Deloitte. It indicates that Fresco incurred a net loss of $17,136,768 up to the end of September 30, 2012 and had accumulated debt of $76,000,000. The report states that, “the existence of a material uncertainty may cast doubt about the company’s ability to continue as a going concern.” Mr. Ouslis stated that on the date of separation, the Fresco shares that he owned as well as those that were owned by the Family Trust had no value.

Spectra 7

[32] Mr. Ouslis stated that the two venture capital organizations that financed Fresco wanted to mitigate their losses. They had another company in Ireland called Redmere. They decided that Fresco and Redmere should be merged. The new merged company was called Spectra 7. Mr. Ouslis explained that the merger was a financial necessity. The partners’ percentage ownership in Fresco at that time was tiny, perhaps five percent, because the venture capital organizations owned the other shares. There were also some private investors who had bought shares in Fresco. Because each of the four partners had initially put money into Fresco, each of them received a number of Spectra 7 shares proportionate to his contribution. An email dated May 13, 2014, (which should be dated 2013) from Rob Bosomworth, Chief Financial Officer of Spectra 7, to Mr. Ouslis confirms the shares that he received. On conversion, the 117,542 Fresco shares became 16,128 shares of Spectra 7.

[33] Mr. Ouslis stated that during the time leading up to and including the date of separation, he was working for Spectra 7. He was involved in the day-to-day operations.

[34] The negotiations for the merger of Fresco and Redmere as well as the merger itself happened in 2012, after his separation from Ms. Ouslis. Upon the merger, all of the Fresco common shares held by the original partners, which numbered in the millions, were reduced to one share each. The value of the preferred shares changed. They became penny stock. Mr. Ouslis stated that his personal 40 percent of the shares turned into one common share and his preferred shares were converted into penny stock. Furthermore, the shares held by the Ouslis Family Trust, being the 60 percent, became penny stock and one common share. Mr. Ouslis stated that the value of the shares has fluctuated. Sometimes the value is over $1 per share and sometimes it is less than that.

Mr. Ouslis’ Termination

[35] Mr. Ouslis stated that Spectra 7 terminated him at the end of August 2012. He continued to work for the company but not on site. He was a consultant and finished up projects that he had underway. This lasted until October 2012. Mr. Ouslis explained that when he was terminated, he negotiated a severance package which required Spectra 7 to continue paying his salary until April 2013.

N[...]

[36] Mr. Ouslis stated that on the advice of their investment advisor, Mr. Cos Vona, Mr. and Ms. Ouslis made significant investments in a hedge fund, N[...], with the money that they received on the sale of Xentec and Insilicon. He described N[...] as a fund of funds. One of them was known as U[…]. Some of the money was invested in Mr. Ouslis’ name and some of it in Ms. Ouslis’ name. This was accomplished by drawing money from 091 and 336. Some of the parties’ investments in N[...] were also held by the two companies. In addition, Mr. Ouslis also purchased some units in N[...] with his personal funds. Ms. Ouslis did as well. Ms. Ouslis personally invested in N[...] on December 31, 2002. She did this independently, using her own funds.

[37] Mr. Ouslis’ parents and his sister also invested in N[...] although Mr. Ouslis did not know it at the time. Mr. Ouslis stated that Mr. Vona approached them separately.

[38] Mr. Ouslis stated that before they decided to invest in N[...], he and Ms. Ouslis spoke to a number of people about the fund and had attended events to find out as much as they could about it. They learned that N[...] had existed for 10 years and the person who ran it was a former employee of the Ontario Securities Commission. Mr. Ouslis stated that he and Ms. Ouslis discussed the decision to invest in N[...]. They invested in N[...] because they wanted something solid and stable which would provide benefits in later years.

[39] Mr. Ouslis stated that Ms. Ouslis did not express any concern or opposition with respect to investing in N[...]. She was present at one or more of the meeting with Mr. Vona. They had to sign documents in his presence for the various purchases. At times, Mr. Vona would come to their house to meet with them and bring the documents to sign.

[40] Mr. Ouslis explained that N[...] was not a regular mutual fund. The Ontario Securities Commission required a minimum investment of $150,000. The Ouslis’ investments were multiples of that. Mr. Ouslis explained that N[...] purported to invest its funds internationally, specifically from the Bahamas. When the parties purchased units in N[...], the transfers of the money went to the Bahamas. Between 2000 and 2005, they received investment statements from Mr. Vona. The returns were steady, usually at eight or nine percent. Mr. Ouslis stated that he thought this was reasonable. It was the promised growth. They had approximately $1 million invested in N[...]. He and Ms. Ouslis had no specific discussions during these years about N[...]. Nothing caught their attention. She did not express any concerns.

[41] Shockingly, in 2005, N[...] collapsed. This had a massive, devastating impact on the Ouslis’ investments. Mr. Ouslis stated that they had invested in N[...] on professional advice, thinking that the company was safe and stable. Approximately half of all of their investments were in N[...]. Institutional investors such as cities and towns along with banks had invested money in N[...]. It turned out that N[...] was actually a Ponzi scheme. It was a 15 year scam. Mr. Ouslis stated that initially he and Ms. Ouslis were told that they would receive nothing for their investments. Their reaction was deep shock and anguish.

[42] Mr. Ouslis explained that the collapse of N[...] was in the public eye. It was widely reported in the media. He was interviewed by CBC for a television program hosted by Evan Solomon. The interview took place in the matrimonial home and was videotaped. Ms. Ouslis was present for one of the tapings. The program was aired on November 23, 2008. Both he and Ms. Ouslis watched the broadcast when it aired. Mr. Ouslis stated that from 2005 until the commencement of these proceedings, Ms. Ouslis never took any legal action against him with respect to the N[...] investments.

[43] From the time of the N[...] collapse until the date of separation, Mr. Ouslis stated that Ms. Ouslis made an enormous effort to address the loss. She did a lot of research. She represented him, his parents and his sister and made every effort that she could to recoup the funds. She wrote letters to various organizations including the Ontario Securities Commission and she attended meetings. Although the shock from the loss was devastating, Mr. Ouslis stated that their marriage continued to be strong and they stayed together. Six more years passed before they separated.

[44] Mr. Ouslis stated that neither he nor Ms. Ouslis were savvy investors. They obtained professional investment advice before they invested. Both of them invested in N[...] on multiple occasions. In hindsight, he believes that both of them have responsibility for investing in N[...]. He stated that he never deceived Ms. Ouslis in any way about the decision to invest in N[...] nor about the amount that was invested. He did not misrepresent anything to encourage Ms.Ouslis to invest her money in N[...]. He did not coerce her or pressure her. He stated that after the collapse, when Ms. Ouslis was trying to recover from the shock of the loss, there were occasions when she blamed him for it. The situation was upsetting and frustrating. Mr. Ouslis stated that the loss shook them. As a result, thinking clearly was difficult.

[45] In 2013, two years after separation, the parties received about 6 percent of their investment back in a settlement from an accounting firm. Mr. Ouslis stated that nothing was paid to any of the institutional investors. Both he and Ms. Ouslis each received a cheque for $11,582.74.

Ms. Ouslis’ Evidence

[46] Ms. Ouslis stated that she did not know that most of the family’s savings were invested in N[...]. At the time of the collapse, Mr. Ouslis told her that they had lost approximately $800,000. When she was preparing the matrimonial home for sale, she came across a box of documents in the basement. Some of the documents showed that the loss was closer to $1,200,000. Ms. Ouslis stated that Mr. Ouslis made the decision to invest in N[...]. His decision to invest all of the family’s savings in one fund was reckless and irresponsible. No prudent investor would do such a thing. Ms. Ouslis holds Mr. Ouslis responsible for the financial loss to the family caused by N[...]’s collapse.

Patents

Mr. Ouslis’ Evidence

[47] In the course of his employment, Mr. Ouslis was a co-inventor of various items and processes that were patented. He explained that these patents were beneficially owned by his employers. At the time of application for a patent, he had to sign a document assigning the rights of the patent to the employer. All of the patents in which he was a co-inventor were assigned to his employers. He stated that some patents could have been obtained after he stopped working for those companies because he was working on some projects that were not completed at the time. Nevertheless, those patents, if any, would have been assigned to the employer. Mr. Ouslis stated that he never owned a patent and never received any royalties from one. Mr. Ouslis produced documents with respect to eight patents in which he was a co-inventor. These documents showed that all of them were assigned to the employer.

Ms. Ouslis’ Evidence

[48] Ms. Ouslis maintained that the number of patents significantly exceeded the eight that Mr. Ouslis had described. She suggested that Mr. Ouslis received income from patents but she did not adduce any evidence to support her position.

Ouslis Family Trust

Mr. Ouslis’ Evidence

[49] In order to understand a significant transfer of funds to Ms. Ouslis, a brief historical review of the Ouslis Family Trust is necessary. Mr. Ouslis stated that the Ouslis Family Trust was set up in 2004. An updated trust document was prepared and dated February 1, 2005. He provided a copy of this trust agreement to Ms. Ouslis. This document was updated to include their child S.O.1 and to show that the Fresco shares were held by the trust. The family’s lawyer, Andrew Buckstein, prepared the agreement. Mr. Ouslis recalled that he went to Mr. Buckstein’s office to sign it. Mr. Buckstein had also done the legal work for the various companies as well as other legal work for the family. Mr. Ouslis stated that there was a trust agreement dated 2000 but he could not find it. Part 1 of the February 1, 2005 trust agreement refers to delivering a share certificate worth $461,667 for the benefit of Ms. Ouslis and the children together with any other future children.

[50] Mr. Ouslis stated that when they received money from the sale of Xentec, they put some of it into the Ouslis Family Trust. Initially, the Trust invested $300,000 in a particular stock called Abria. Both Mr. Ouslis and Ms. Ouslis decided on the investment. The amount grew during the marriage. By 2007, it was closer to $390,000.

[51] In 2007, Ms. Ouslis decided that she wanted to have the funds in her name only. Mr. Ouslis stated that he agreed to this. They went to the bank to determine how to accomplish this transaction. The parties signed a document dated October 21, 2007 which was witnessed. It stated that the amount of $385,000 was the property of Ms. Ouslis. The funds were then withdrawn from the Trust’s account at the Bank[…] and moved to an account that Ms. Ouslis held at I[..]. This occurred prior to separation. Mr. Ouslis stated he considers Ms. Ouslis to be the lawful owner of this money. He stated that he believes the amount was $440,000 at the date of separation.

[52] Currently, the Family Trust holds one common share of Spectra 7 and a number of preferred shares. These are now publicly traded. The Trust does not hold any cash.

Ms. Ouslis’ Evidence

[53] Ms. Ouslis stated that she did not know about the Ouslis Family Trust when it was created. Mr. Ouslis arranged this by himself with the family’s lawyer. She obtained a letter from Mr. Buckstein dated May 7, 2012 which stated that Mr. Ouslis had attended at Mr. Buckstein’s office in July 2005 to discuss the creation of the trust. A document entitled “Joint Declaration and Direction” dated October 21, 2007 appears to be signed by the parties and their signatures are witnessed. Ms. Ouslis stated that her signature on the Joint Declaration and Direction dated October 21, 2007 was forged. Mr. Ouslis directed the institution to pay or transfer the current balance as directed or authorized by Ms. Ouslis. Ms. Ouslis stated that she used the name “Family Trust” only in an informal sense.

[54] Ms. Ouslis referred Mr. Ouslis to a R[…] account profile for the Ouslis Family Trust. It states that the account was opened on 10/15/2007. She suggested that the document shows an initial deposit amount of $402,381. Mr. Ouslis stated that he had never seen this document before and did not sign either of the first two pages. The next page in the package is entitled “Declaration of Trust Agreement”. It is in the name of the Ouslis Family Trust and under the heading “Date Trust Created if pre-existing trust”, it states 10/17/2007. Mr. Ouslis stated that he signed it on October 8, 2007. The next page is a certificate of foreign status. Mr. Ouslis stated he signed this document on 10/08/2007 as trustee.

[55] The date when the Trust was created and the question of whether Ms. Ouslis knew about it at the time is not relevant in determining the issues in this matter. The funds in the Trust were transferred to Ms. Ouslis in 2007 as set out below.

What is the Net Family Property of Each Party?

[56] Ms. Ouslis’ position is that in determining this issue, I should take into account the assets that Mr. Ouslis would have had but for the investments in N[...]. She submits that I should also take into account other investments that Mr. Ouslis held prior to separation. Accordingly, she submits that Mr. Ouslis’ net family property is approximately $13,000,000.

[57] The Family Law Act, R.S.O. 1990, c.F.3 clearly defines net family property as the value of all of the property that a spouse owns on the valuation date, subject to certain deductions. The property that a spouse might have had earlier in the marriage, including investments if they had performed better, is not relevant to a calculation of his net family property.

[58] Ms. Ouslis states quite vehemently that Mr. Ouslis has not made full disclosure of all of his assets. She states that a number of undertakings remain outstanding. I note that several orders were made on consent regarding production of documents. No motion to strike was brought for want of disclosure, even though the minutes of settlement dated November 19, 2014 reserved the parties’ right to do so. No motion was brought against third parties for production.

[59] Rogers J. made an endorsement dated December 2, 2015 which stated that, “any further documents either party wishes to produce at trial must be served by December 4, 2015.” In her submissions, Ms. Ouslis referred to a number of documents that were not in evidence at trial; therefore, I cannot consider them. She also made submissions regarding capital losses that should be attributed to Mr. Ouslis, many of which pre-dated separation. She did not present expert accounting evidence. Accordingly, I cannot consider these submissions regarding income tax issues.

[60] Ms. Ouslis requests an order that she be designated the irrevocable beneficiary of Mr. Ouslis’ RRSPs, that the children be designated as alternate beneficiaries and that the RRSPs be maintained “in good standing” among other things. Ms. Ouslis did not make a claim for this in her Amended Answer.

[61] Ms. Ouslis makes the same request regarding any pension plan that Mr. Ouslis may have. There was no evidence that Mr. Ouslis has a pension plan. Ms. Ouslis did not make a claim for this in her Amended Answer.

[62] Ms. Ouslis submits that Louie and Frances received shares of 480 Ontario unlawfully in December 2000. Ms. Ouslis made no claim relating to this allegation in her Amended Answer. She submits that she discovered this in November, 2015.

Does Ms. Ouslis have an interest in assets held by 104?

Forgery Allegations

[63] As noted above, the parties incorporated this company in December 2000. Ms. Ouslis’ signature is on the Articles of Incorporation filed on November 17, 2000. She was not sure whether the signatures on the resolutions or on the forms appointing officers forms were hers. She stated that she was issued 50 common shares of 104 on November 17, 2000 at $1 per share but she was not sure if the signature on the subscription page was hers. She was also not sure if the signature on the consent to act as a director form was hers. She stated that she did not sign the resignation of director form on December 21, 2000. In 2007, she thought she was still a director of this company.

[64] Ms. Ouslis stated that she did not transfer her shares in 104 to Frances. There was no consideration for the transfer of the shares. The signature on that page, which appears to be hers, is a forgery. Ms. Ouslis stated that the signatures on the resignation of directors document and the election of directors document were not hers.

[65] Ms. Ouslis stated that the loan that Louie and Frances provided to start up Xentec does not justify their each receiving $189,627.18 US when Xentec was sold. She stated that she did not know that Mr. Ouslis’ parents benefitted from the sale of Xentec. This was a fraudulent conveyance in 2000, 11 years prior to separation, for which she seeks “restitution”. Ms. Ouslis stated that she never discussed with Mr. Ouslis the sale proceeds from Xentec. She never asked him how much money they would net from the sale. She requests an order that Mr. Ouslis’ parents return the money. Ms. Ouslis believes that Mr. Ouslis’ parents did not receive the money. It was “parked” with them but it is actually Mr. Ouslis’ money. Mr. Ouslis’ parents are not parties to this application.

[66] Louie and Frances testified. He has a grade five education and worked as a labourer before he retired. Frances has a high school education. She worked in a factory before she retired. Neither of them could recall much about the transfer of 104’s shares to them 16 years ago or the operation of the company. Their ages and lack of education could be an explanation for this.

[67] They did recall receiving the funds when Xentec was sold. Frances stated that it was a gift from the parties because she and Louie had helped them earlier in many ways. For example, she and Louie gave them mortgage financing for their first home.

[68] Aside from their evidence with respect to receiving the funds when Xentec was sold, Frances and Louis’ evidence regarding 104 had very limited value.

[69] Ms. Ouslis referred to a banking document from T[…]. It is entitled [Document] dated March 28, 2005. The business name is 104. The document appears to be signed by Mr. Ouslis as “President.” There is a signing line for Ms. Ouslis. Ms. Ouslis stated that the signature shown above her printed name is not her signature.

[70] Ms. Ouslis also referred to two T[...] resolutions for 104 dated March 28, 2005. They appear to be signed by Mr. Ouslis as president and Ms. Ouslis as secretary/director. Ms. Ouslis stated even though these signatures look like hers, they are not. She could not have signed these resolutions because she was removed as a director and officer in December 2005.

[71] Ms. Ouslis asserts that her signatures on two of 104’s documents, being the share transfer document and the corporate resignation document, were forged. This supports her position that she remains an officer, director and shareholder of 104. She also appears to have signed banking documents for 104, 5 years later, in these capacities. Nevertheless, she stated that her signatures on the banking documents were also forged. This could be viewed as inconsistent with her position that she remained an officer, director and 50 percent shareholder of 104. The signatures of corporate executives on opening documents for a corporate bank account would not be surprising.

[72] A party alleging forgery bears the onus of proof. Ms. Ouslis provided no handwriting expert evidence. I note that her signatures on other documents in this matter vary. Without expert evidence, I cannot determine whether any of her signatures have been forged. I find that Ms. Ouslis has not met the onus of proof. Therefore, I must conclude that her signature on the share transfer document is not forged. Accordingly, I find that Ms. Ouslis did sign the document that transferred her 50 shares in 104 to Frances and she did sign the document in which she resigned as an officer and director of 104. This occurred in 2000, 11 years prior to separation.

[73] Based on the evidence before me, I conclude that Ms. Ouslis has no interest in 104’s assets.

Are the funds that Ms. Ouslis’ held in an I[…] savings account for the children, on the date of separation, Ms. Ouslis’ property?

[74] Ms. Ouslis provided a bank account statement in her name dated November 30, 2007 with a balance of $407,507.83. This shows that the money from the Ouslis Family Trust was transferred into her name. She stated that she is holding this money “in carriage” for the children. She stated that she owns the funds “technically but not in theory.” On the date of separation, the funds were in an account in her name. They still are. She has paid tax on the interest that they earn. She wants to keep this money set aside for the children. They would receive it upon her death. She stated that she is afraid of placing the funds in a trust with a third party manager, given her experience with N[…].

[75] Mr. Ouslis stated that if Ms. Ouslis placed these funds in a formal trust for the children during the trial, he would not take the position that the funds were her property on the date of separation. Nevertheless, she did not place the funds in a formal trust.

[76] Ms. Ouslis states that her intention for the funds is of paramount importance. The court should place greater weight on this in contrast to the fact that the funds are in her account. I disagree. These funds were not held in a formal trust for the children on the date of separation. They were held in an account in Ms. Ouslis’ name alone.

[77] In Lampron v. Lampron, 2004 CanLII 28090 (ON SC), at para 5, the court concluded that assets held in the name of a parent “in trust for the children” should be included in the calculation of that parent’s net family property because that parent “had exclusive control over the funds and no evidence was called to show that the trust was irrevocable.” Mr. Lampron’s appeal was dismissed.

[78] I find that these funds are Ms. Ouslis’ property. On the date of separation, their value was $434,315.20. This amount must be included in the calculation of Ms. Ouslis’ net family property.

The Matrimonial Home

[79] The matrimonial home was owned jointly by the parties. On the date of separation, it was mortgage free. It sold in June 2015 for $1,300,000. By agreement, the parties each received some of the sale proceeds. The balance remains in a solicitor’s account. On his revised net family property statement filed April 15, 2016, Mr. Ouslis indicated $1,000,000 was held in the solicitor’s account. On his net family property statement, Mr. Ouslis includes $500,000 for the matrimonial home. Ms. Ouslis does not include anything.

[80] The correct amount to use is the sale price of the matrimonial home. Accordingly, $650,000 is apportioned to each party.

Vehicles

[81] Mr. Ouslis stated that he owned two vehicles on the date of separation, being a 2008 BMW 335i and a 2003 Honda Pilot. He stated that they were worth $36,000 and $12,000 respectively, according to their black book value and equivalents in Auto Trader. He produced black book documents from the internet dated May 1, 2014 (three and a half years after separation) showing that the BMW was worth between $15,995 and $18,520 and the Honda was worth between $1,330 and $3,730.

[82] Ms. Ouslis challenged the $36,000 and $12,000 values and suggested that they ought to total $68,000. She did not provide any documentation to support her position on values for the vehicles.

[83] I am not persuaded that Mr. Ouslis’ vehicles were worth $68,000 on January 1, 2011. This would mean that the vehicles declined in value by approximately 70 percent in three and a half years. I accept Mr. Ouslis’ evidence that the BMW was worth $36,000 and the Honda was worth $12,000 on the date of separation.

[84] Ms. Ouslis stated that Mr. Ouslis also owned another vehicle being a 1992 BMW 325. She provided a Ministry of Transportation document dated February 8, 2016 showing that this type of vehicle is registered in Mr. Ouslis’ name. He stated that he used this BMW as a track car. It was significantly damaged in a collision prior to separation and has no value.

[85] The testimony of Mr. Bruce Van Den Eynde, a mechanic who did work on the car in 2007 and 2008, confirmed this. He stated that the car had been in a collision. He advised Mr. Ouslis that the cost to repair the car would be unjustified when contrasted with its value. Mr. Ouslis stated that he sent a tow truck to pick up the car.

[86] Based on the evidence before me, I am satisfied that on the date of separation, the BMW 325 had no value.

Bank Accounts, Saving, Securities and Pensions

[87] Mr. Ouslis stated on the date of separation, his miscellaneous investments including RRSPs, a Locked In Retirement Account (LIRA), personal bank accounts, and 50 percent of the balance of the accounts held by 336 and 091 totalled $600,962.17. He provided supporting documents.

[88] Ms. Ouslis challenged Mr. Ouslis on the amount of his investments. She suggested that that Mr. Ouslis had a number of specific investments that he had not included. He stated that he did not list them individually on his net family property statement. Rather, he provided a total and supporting documents regarding each one. Ms. Ouslis did not pursue the issue.

[89] Ms. Ouslis alleged that Mr. Ouslis’ savings and investments totalled $6,736,100.47. She agreed that this amount did not reflect the value of his savings and investments on the date of separation. Rather, it included “funds diverted” in connection with the N[...] investments, “unlawful conveyances of shares” from 480 to 882 and the value of the Fresco shares, among other things.

[90] Ms. Ouslis provided some documents which showed that Mr. Ouslis held certain investments that were not listed on his net family property statement; however, these documents were dated prior to separation. In calculating the value of Mr. Ouslis’ net family property, I cannot take into account the value of property that Mr. Ouslis may or may not have owned prior to separation.

[91] I am satisfied that the total value of Mr. Ouslis’ bank accounts and savings was $600,962.17 on the date of separation.

[92] Ms. Ouslis agreed that on the date of separation, she had $8,444 US in a savings account; $434,315.20 in an investment savings account, $89,113 in an RRSP account, $9,075 in another spousal RRSP account, $13,009 in another RRSP investment savings account, $194,168 in a T[...] account, and $26,516.54 in an R[…] investment.

[93] I am satisfied that the total value of Ms. Ouslis’ accounts and savings on the date of separation was $793,236.87.

Life Insurance

[94] Mr. Ouslis stated that on the date of separation, he held two life insurance policies with cash surrender values of $2,579.19 and $2,887.50. Ms. Ouslis agreed with these values.

Business Interests

[95] Mr. Ouslis stated that he and Ms. Ouslis are equal shareholders of 336 and 091. Regarding 336, on the date of separation, the balance in its bank account was $12,318.86, which was confirmed by a bank statement. On his net family property statement, Mr. Ouslis listed half of this amount, $6,159.43 as his property and the same amount as Ms. Ouslis property. I am satisfied that this is correct.

[96] Regarding 091, it had two bank accounts. On the date of separation, the combined total in these accounts was $24,873.40, which was confirmed by bank statements. On his net family property statement, Mr. Ouslis listed half of this amount, $12,436.70 ($5,000.38 + $7,436.32) as his property and the same amount as Ms. Ouslis property. I am satisfied that this is correct.

Debts and Liabilities

[97] Mr. Ouslis stated that he had a loan from B[…] Bank, the balance of which was $98,827.78. This was not contested. He stated that this loan was taken out to make investments in N[...]. It was beneficial from a tax perspective because the loan could be used against capital gains. The collateral was the N[...] investments. Mr. Ouslis stated that he received tax advice on this. He is currently paying interest on the loan which is prime plus one-half of a per cent. The amount of the loan was confirmed by a statement from B[…] Trust.

Notional Disposition Costs

[98] Both parties agreed that 29 percent should be used as the notional disposition cost.

[99] Ms. Ouslis states that no disposition cost should be allowed for Mr. Ouslis’ RRSPs. If he has sufficient capital losses to offset a trigger of a capital gain, any requirement for disposition costs is negated. He should have some capital losses because he has lost so much money through his investments.

[100] I do not accept Ms. Ouslis’ position that no amount should be allowed for Mr. Ouslis’ notional disposition costs. It is speculative. There is no evidence from an accountant that Mr. Ouslis had a sufficient capital loss to offset a capital gain.

[101] Mr. Ouslis stated that his RRSPs and LIRA totalled $191,416.50, as confirmed by bank statements. At a rate of twenty-nine percent, his notional disposition cost is $55,510.79

[102] Ms. Ouslis’ RRSPs on the date of separation total $119,197. At a rate of twenty-nine percent, her notional disposition cost is $34,567.13

[103] Ms. Ouslis stated that she owed tax arrears of $41,417 and $575.75 for parking tickets although she did not produce any documents to support these claims.

Property owned on date of marriage

[104] Mr. Ouslis stated that he owned no property on the date of marriage. He does not make a claim for any excluded property.

[105] Ms. Ouslis stated that she had a Mazda GLC valued at $4,000 and jewelry valued at $2,500. This was not disputed.

Excluded Property

[106] Ms. Ouslis claims an OMERS pension from the Metro Toronto Regional Conservation Authority valued at $2,939.16 but she did not provide any related evidence.

[107] Ms. Ouslis stated that she received an inheritance from her grandfather Reed Knox. She produced a cheque in the amount of $4,332.79. Mr. Ouslis agreed on a value for the inheritance of $4,400.

RESPs

[108] Ms. Ouslis stated that T[...] holds 3 RESPs, the funds in which total $157,000. She stated that a court order required her to disburse $6,910 for N.O.'s university expenses in 2012. She has attended university from 2013-2015 but no further funds have been disbursed for her. Mr. Ouslis has asked her to reimburse him for the $24,000 that he has paid but she has not done this.

[109] I conclude that the funds in the RESPs are the property of the children.

Money owing to Ms. Ouslis

[110] Ms. Ouslis states that $54,218 is owing to her because Mr. Ouslis lent money to friends without her knowledge. She states that this is “family money” and belongs to both of the parties. Mr. Ouslis either gifted or lent his friend, Mr. VanDenEynde $7,200. In addition, $4,000 was either a gift or a loan to Mr. Ouslis’ cousin’s ex-wife who is now deceased. This occurred in approximately 2009.

[111] According to Mr. VanDenEynde, Mr. Ouslis paid him $7,200 to do repair work on the family’s vehicles. He did not keep any documents relating to the work because it was done a number of years ago. He charged Mr. Ouslis only for parts because the shop students at his school were doing the work.

[112] I accept Mr. VanDenEynde’s evidence. The sum of $7,200 was not owing to Ms. Ouslis on the date of separation. While there is some indication that $4,000 was provided to a relative, there is very little related evidence. Ms. Ouslis has not satisfied me that this was a loan. I find that this amount was not owing to Ms. Ouslis on the date of separation.

Conclusion Regarding Net Family Property

[113] Based on the values set out above, I find that on the date of separation, the value of Mr. Ouslis’ net family property was $1,150,090.29 and the value of Ms. Ouslis’ net family property is was $1,397,769.74.Without taking into account whether there should be a variation of share, which is discussed below, Ms. Ouslis owes Mr. Ouslis an equalization payment of $123,839.73. The calculations resulting in this amount are set out in Schedule A to these reasons.

Should There Be An Unequal Division of Net Family Property?

[114] Ms. Ouslis claims that the amount of any equalization payment should be varied in her favour. She states that Mr. Ouslis recklessly depleted the family’s money by investing in N[...] and recklessly incurred debts in reduction of his net family property during the marriage by borrowing money to make some of those investments. She claims “restitution” for this amount. She also claims that Mr. Ouslis transferred certain funds, from the accounts of corporations of which she was an equal shareholder, to locations unknown.

Applicable Legal Principles

[115] Section 5(6) of the Family Law Act allows the court to vary the division of net family property as between spouses “if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to…(d) a spouse’s intentional or reckless depletion of his or her net family property…(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.” Accordingly, the starting point of the analysis is the standard of unconscionability.

[116] Mr. Ouslis states that the test for unconscionability is exceptionally high. In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161 at para. 47, the court noted that circumstances that are merely unfair, harsh or unjust do not meet this test. Rather, in order to meet this threshold, the circumstances must shock the conscience of the court.

[117] Poor business judgment is not sufficient to make out a claim for unequal division under s. 5(6)(d). In “Unequal Sharing of Net Family Properties under Ontario’s Family Law Act” (2008) 27 Can. Fam. L.Q. 147, at p. 175 Berend Hovius states:

[118] Unsuccessful investments or business ventures do not usually amount to intentional or reckless depletion of NFP. In particular, it is not enough for the spouse who seeks an unequal sharing of the NFPs to show that poor judgment or poor management resulted in a loss. Rather, the claimant must establish that the other spouse knowingly made bad investments in order to waste assets or was totally indifferent to the consequences of a foolish decision.

[119] In Jahnke v. Jahnke, [1996] W.D.F.L. 343 (Ont Ct J (Gen Div)), the wife claimed an unequal division of net family property on the grounds that the husband’s investments in RRSPs and the stock market lost almost $34,000. The court declined to find that these high-risk investments constituted reckless depletion of net family property. The investments were made when the party’s financial situation was secure and with the advice of an investment broker. The court stated at paras. 42-43:

[120] There is no question that in hindsight these investments by the plaintiff were not good ones, but it cannot be said that they were made in bad faith or were not the result of a bona fides intention on the plaintiff’s part to generate income for his wife and family. Without question, if the investments had been profitable, the defendant and the children would have shared in that accumulation of wealth.

[121] I am satisfied that as in Cowan v. Cowan (1987), 1987 CanLII 8293 (ON SC), 9 R.F.L. (3d) 401 (H.C.J.), the plaintiff’s actions were nothing other than a sincere effort on his part to improve the family’s situation.

[122] In Pirhosseinlou v. Pirhosseinlou, 2012 ONSC 5249, [2013] W.D.F.L. 1268, the wife sought an unequal distribution of the net family property partially on the ground that the husband’s involvement in online stock trading was a reckless depletion of his net family property. The court described the investments at para. 45 as “foolish, imprudent and risky and stated, “Ali made bad investments, showed bad judgment, and caused a debt problem early in their marriage. I consider it a risky business venture that went very badly as profits declined and debt increased.” Nevertheless, the court denied the claim, stating at para. 46, “Ali’s profits in the first year were enjoyed by the family. Ensi [the wife] cannot now avoid the losses.”

[123] Ms. Ouslis relies on Dillon v Dillon, 2010 ONSC 5848, 96 R.F.L. (6th) 193 in which the court stated at para. 14 that the husband recklessly and without the wife’s knowledge incurred debts over a lifetime of alcoholism. “…[t]he respondent was dissipating his income to feed his addiction to alcohol.” The court concluded that equalizing the parties’ net family property in these circumstances would be unconscionable.

[124] Ms. Ouslis also relies on Naidoo v. Naidoo, (2004) 2004 CanLII 34415 (ONSC) and Laing v. Mahmoud, 2011 ONSC 4047, [2011] W.D.F.L. 5085 in which one of the parties had a gambling addiction which resulted in dissipating the family’s assets. In Naidoo, the court stated at para. 41 that, “the respondent’s conduct was reckless in that it put at risk and dissipated substantial amounts yearly, depriving the applicant of her bona fide expectations.” The court held that equalizing the net family properties in these circumstances would be unconscionable.

Has Mr. Ouslis Recklessly or Intentionally Depleted His Net Family Property?

Investing in N[...]

[125] Ms. Ouslis stated that she learned that N[...] was a Ponzi scheme in May or June 2005. The marriage remained intact for five and a half years afterward. She has a theory that Mr. Ouslis actually did not lose money in N[...]. He is hiding it somewhere else. She stated that she blames Mr. Ouslis, Mr. Vona and Mr. Ouslis’ parents for the loss of the family’s assets. She described it as a bait and switch. She thought she was a director of 104 and 091. She was removed as a director and then the money was “diverted.”

[126] Her position is that Mr. Ouslis recklessly and unconscionably invested a disproportionate amount of the family’s savings between 2000 and 2002, nine or ten years prior to separation, and this entitles her to an unequal division of net family property. Ms. Ouslis stated that by 2007, she formed the opinion that Mr. Ouslis had been reckless by investing in N[...]. She states that N[...] was a hedge fund. No more than 5 percent of the family’s assets should have been invested in it. Based on documents that she found in the basement of the matrimonial home in 2012, Ms. Ouslis states that 168 percent of the family’s assets (which includes the B2B loan) were invested in N[...]. There were two other investments of $24,000 US and $154,000 US.

[127] Ms. Ouslis submits that Mr. Ouslis’ investing money in N[...] was akin to gambling.

[128] Ms. Ouslis submits that U[…], one of the N[...] funds, was “known in the investment industry to have been a fraudulent fund as early as 1998”; however, no evidence of this was adduced at trial.

Borrowing Money to Invest

[129] Ms. Ouslis initially stated that she did borrow money to invest in stocks and securities. Then she stated that she said she was “told to.” It was not her idea. She received a letter dated February 3, 2004 from a law firm representing T[...] stating that a loan in her name “continues to be seriously in default of payment.” She agreed that it appears that she had a line of credit for $330,000 in her name but she did not know how she could have this. She borrowed money to invest in BPI but she did not recall when she did this. A letter dated May 8, 2004 from T[...] states that the line of credit is overdue.

Ms. Ouslis’ Investing in N[...]

[130] Ms. Ouslis agreed that she had personally invested in N[...] during the marriage. She said she was “arm twisted into it.” Mr. Ouslis and Mr. Vona told her to invest $150,000 in N[...].

[131] Ms. Ouslis states that Mr. Ouslis made further bad, reckless investments between 2008 and 2011.

[132] Ms. Ouslis seeks $229,230. She states that losses were incurred in breach of 336’s bylaw 1. Mr. Ouslis could not have invested money from this company without her signature. She did not agree that any of these losses could have resulted from the 2008 stock market crash.

Missing Funds

[133] Ms. Ouslis stated large sums of money in the parties’ various corporations have been removed without her knowledge. She also stated that Mr. Ouslis had withdrawn certain funds from a joint account. These transactions occurred in 2008 and 2009. Some examples are as follows:

[134] Ms. Ouslis produced a statement for account [bank account 1] dated May 30, 2008, held by 336, which was addressed to 336 at the matrimonial home. She stated that she did not know where a $25,000 cheque went. Regarding a September 30, 2008 statement, she stated that she did not know where a $91,817.74 cheque went. Regarding the December 31, 2008 statement, she said she did not know where a $200,000 cheque went.

[135] She produced statements for account [bank account 2], dated March 31, 2009 and April 30, 2008. This account was also held by 336. The earlier statement shows a total value of $385,881.62 comprised of cash, common shares and mutual funds. The second statement shows a total value of zero. She states that all of the money went to Mr. Ouslis’ personal account without her knowledge.

[136] She produced a statement for account [bank account 3] dated March 31, 2008, addressed to both parties at the matrimonial home. This account was held by the parties. The total value shown is $110,244. In the following month, the statement for the account shows a total value of zero. Ms. Ouslis stated that these funds went to Mr. Ouslis’ account.

[137] Ms. Ouslis produced a statement for account [bank account 4] dated April 30, 2009. This account was held by Mr. Ouslis only. The statement was addressed to Mr. Ouslis at the matrimonial home. She stated that she does not know where a $170,000 cheque went.

[138] Frank D’Angelo, VP and Portfolio Manager with R[…], testified that the $25,000 cheque dated May 14, 2008 was made payable to 1459336 Ontario Inc. (336) and was mailed to the parties’ matrimonial home. He also testified that the $200,000 cheque was made payable to 336 and was mailed to the parties’ matrimonial home. It was deposited into a T[...] account on December 9, 2008. He stated that the $91,817.74 cheque was made payable to 336 and was sent to the parties’ matrimonial home. The $170,000 cheque from Mr. Ouslis’ sole R[…] account was made payable to Mr. Ouslis and was deposited into a C[…] account.

[139] Rose Venafro, General Manager of a C[…] branch, testified that on December 15, 2008 (one week after the withdrawal) a $200,000 lump sum payment was made toward the mortgage on the matrimonial home. She also testified that on May 9, 2009, a payment of $164,541.13 was made to pay off the mortgage on the matrimonial home.

[140] Ms. Ouslis also submits that shares of 480 were conveyed “unlawfully, unethically and under false pretences” to Louie and Frances. As noted above, this company was incorporated in 1989 to hold shares in Xentec. Ms. Ouslis states that this conveyance occurred after 480 “ceased to exist and was continued as 882.” Ms. Ouslis states that this transaction occurred on December 14, 2000, 11 years prior to separation. Ms. Ouslis did not make a claim with respect to this share transfer in her Amended Answer.

[141] Ms. Ouslis further submits that she was a vulnerable spouse at home with four children. She states that Mr. Ouslis told her to take care of the children and he would take care of the finances. She had very little knowledge of the family’s finances. Ms. Ouslis submits that the court should take this into consideration in determining whether a variation of share should be made in her favour.

Analysis

[142] Ms. Ouslis states that she is entitled to an unequal division of net family property on the basis of “reckless investment and asset diversion.”

[143] When he was questioned about these transactions, Mr. Ouslis stated that some of the money was used to pay off the mortgage on the matrimonial home. The testimony of Mr. D’Angelo and Ms. Venafro supported this. Mr. Ouslis stated that some funds were used to install a swimming pool and carry out landscaping among other things. He could not specifically recall the details of each transaction. They occurred several years prior to separation.

[144] Ms. Ouslis’ evidence regarding the “missing funds” is inadequate for me to determine that Mr. Ouslis removed money from the corporations in which he and Ms. Ouslis are shareholders, without her consent, in order to reduce his net family property or to put the money beyond Ms. Ouslis’ reach.

[145] I do not accept Ms. Ouslis’ position that she was a vulnerable spouse and had no knowledge of the family’s finances. One of her jobs involved forensic accounting. She testified that the numbered companies were used like bank accounts. According to Mr. D’Angelo, the various cheques drawn on the corporate accounts were mailed to the address of the matrimonial home. It is unlikely that Mr. Ouslis withdrew these funds for some nefarious purpose because the cheques were sent to the matrimonial home. There is no evidence to suggest that, aside from 104, Ms. Ouslis did not have access to financial information regarding the corporations of which she was a joint shareholder with Mr. Ouslis. She was entitled to review bank account statements for the corporations. The fact that she chose not to do so does not mean that she was vulnerable.

[146] If money was removed from the parties’ corporations or if shares were transferred without Ms. Ouslis’ consent, and if her consent was required, she may be able to avail herself of a shareholder’s remedy. That is not for me to decide.

[147] I disagree with Ms. Ouslis’ position that investing in N[...] was akin to gambling with the family’s savings. Mr. Ouslis invested in N[...] on the advice of an investment advisor. I accept his evidence that he made the investments because he wanted to place the money in a secure fund to provide for the parties retirement. He understood that N[...] had produced consistent returns in the past. It continued to do so up until the collapse. Perhaps Mr. Ouslis invested too much of the family’s savings in N[...]; however, as noted above, the investments were made when the parties’ financial situation was secure and with the advice of an investment broker, as in Jahnke. I find that these investments were not made in bad faith. They were the result of a bona fide intention on Mr. Ouslis’ part to generate income for his wife and family. If the investment in N[...] had been profitable, as predicted by the investment advisor based on the history of the fund, Ms. Ouslis and the children would have shared in that accumulation of wealth.

[148] As noted in Smith v. Smith, 2012 ONSC 1116, [2012] W.D.F.L. 4885 at para. 25, “reasonably undertaking a business investment which does not meet a party’s financial expectations does not necessarily amount to reckless depletion of funds justifying a variation of the equalization payment.” Mr. Ouslis did not expect the enormous losses from N[...] nor was he recklessly indifferent as to whether the fund performed well or badly. There was no evidence that he made the investments in bad faith. It appears that many other investors, including institutional investors, also did not expect the huge losses from N[...]. I accept Mr. Ouslis’ evidence that the parties invested their money in N[...] to provide for their retirement.

[149] Based on the evidence before me, I conclude that Mr. Ouslis was not reckless with respect to his investment of the family’s money in N[...], nor was he reckless with respect to the investment of his own money in N[...]. He did not incur debts or other liabilities in bad faith in order to reduce his net family property. The N[...] collapse occurred approximately five years prior to separation.

[150] Ms. Ouslis claims that Mr. Ouslis incurred certain debts recklessly. Mr. Ouslis did incur loans during the marriage to make investments, including investments in N[...]. Evidence was adduced to show that Ms. Ouslis also incurred a loan for the purposes of investing in N[...]. Even though these loans were incurred to make investments which did not perform as expected, I cannot conclude that they were incurred recklessly.

[151] Having regard to s. 5 (b) and (d) of the Family Law Act, I find that Ms. Ouslis had not met the test of unconscionability required for a variation of share. I conclude equalizing the net family property in these circumstances would not be unconscionable.

Should Income be Imputed to the Parties?

[152] According to s. 30 of the Family Law Act, “every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with the need, to the extent that he or she is capable of doing so.” Section 31 provides that, “every parent has an obligation to provide support for his or her unmarried child who is a minor or is in enrolled in a full time program of education, to the extent that the parent is capable of doing so.” Section 33(7), (8) and (9) set out the purposes for spousal and child support orders and the circumstances of the parties that must be considered in determining the amount.

Mr. Ouslis testified that he voluntarily made a number of significant support payments and indirect payments between 2011 and 2015. This was not contested.

Mr. Ouslis’ Position

[153] Mr. Ouslis stated that he was terminated from Spectra 7 in August 2012. He received a severance package that ran out in April 2013. After his termination, he carried out a job search and contacted people in the industry. He contacted various companies. He stated that the microchip industry in Canada had suffered significantly which made finding a related job very difficult. He was 50 years old when he was let go. He stated that he submitted many applications and tried to obtain employment in other fields such as government finance. He undertook a side business that involved construction contracting work. He had done this type of work with his father in the past, to some degree and was able to get some small jobs to help pay for expenses. He also did some consulting work with two start-up companies in the Toronto area. One was MARS and the other was Quantum Solar.

[154] On November 30, 2015, he obtained employment at Waterloo at Redtree Robotics in Waterloo. His salary was $64,800, which is confirmed by a letter from Redtree dated December 1, 2015. He stated that he was surprised that finding a job was so difficult. Redtree terminated him on January 22, 2016.

[155] Mr. Ouslis stated that the most he ever earned at Spectra 7 was approximately $180,000 because in one year, 2011, he received a bonus. During the trial, on April 11, 2016, Mr. Ouslis obtained a good job at the National Research Council of Canada as an industrial technology advisor. His salary is $126,172.

[156] Up until 2013, when he was employed, Mr. Ouslis paid support to Ms. Ouslis. He stated that he tried to pay half of what he received in accordance with the Spousal Support Advisory Guidelines (SSAGs). There was no court order with respect to the support payments.

[157] Mr. Ouslis explained that after his severance ran out in 2013, he survived financially by drawing from his savings. He depleted his savings at the T[…] Bank and used two lines of credit. The matrimonial home was sold in July 2015 for $1,300,000. As noted above, he and Ms. Ouslis agreed to each take $150,000 from the proceeds. During the trial, the parties agreed to each take a further $20,000 from the proceeds.

[158] Mr. Ouslis testified that he made various child support payments and indirect payments between 2011 and 2015 as follows:

2011 $25,301.33 indirect payments (on income of $209,746); the parties were living separate and apart in the matrimonial home;

2012 $38,049.68 comprised of indirect payments and voluntary child support of $14,690 (on income of $189,614) from July to December. Mr. Ouslis left the matrimonial home in June;

2013 $35,588.77 comprised of voluntary child support of $13,980.77 from January to May and indirect payments of $21,608 (on income of $100,628); Mr. Ouslis severance income ran out by the end of April; $22,636.39 indirect payments (on income of $25,861); and $5,922.93 indirect payments (on income of $16,268).

Ms. Ouslis did not dispute these payments.

[159] Mr. Ouslis requests support for S.O. who lives with him.

[160] Mr. Ouslis stated that he has paid $2,025 per month for rent for his own accommodation from September 2012 to the present. In total, he paid $68,850 for rent for 34 months until the time when the matrimonial home was sold.

Mr. Ouslis’ Position Regarding Ms. Ouslis’ Income

[161] Mr. Ouslis states that Ms. Ouslis had no income in 2011. She had been out of the work force for 11 years at that time. He did not expect her to work that year or in 2012. His position is that in 2013 and going forward, she should have been reasonably employed. She has not had any post-separation employment, even though the parties have been separated for six years. He stated that from 2000 to date of separation, Ms. Ouslis was real estate agent and worked part-time. She did earn some income however he could not recall what she earned in the various years. She worked for two different realtors.

[162] Mr. Ouslis states that Ms. Ouslis did not make proper efforts to find employment in a timely fashion. Her earliest job search letter is dated January 18, 2015. She did not write to the Real Estate Council of Ontario to inquire about getting her real estate license reinstated until July 2015. Many of the job print outs that she produced are from 2016, after the commencement of the trial. Mr. Ouslis states that Ms. Ouslis has chosen not to pursue several educational and employment opportunities that became available to her since separation. This demonstrates a lack of bona fide effort to move toward self-sufficiency. She was accepted to Seneca College in 2014 for a certificate program but deferred her attendance to 2016. She did this because she stated that she had to get the matrimonial home ready for sale and the litigation was consuming too much of her time.

[163] Mr. Ouslis states that Ms. Ouslis has been unreasonably selective about the positions to which she has applied. She testified that she would only accept a lower level or minimum-wage position if the compensation included a pension and benefits. Mr. Ouslis’ position is that Ms. Ouslis’ reasons for not pursuing minimum-wage position were not compelling. She testified that a minimum wage income would be consumed by travel costs so it was not worth her while to pursue these positions.

[164] Furthermore, Ms. Ouslis testified that she had recently received two job offers; however, she was vague as to whether she would accept either of the positions. Mr. Ouslis states that based on the above, Ms. Ouslis has been intentionally unemployed since 2013 and that income should be imputed to her pursuant to s. 19(1)(a) of the Federal Child Support Guidelines. Mr. Ouslis submits that a minimal income of $25,000 per year should be imputed to Ms. Ouslis beginning in January 2013 and each subsequent year. His position is that Ms. Ouslis should have been able to earn $25,000 in 2013, $25,000 in 2014 and $35,000 in 2015.

[165] Conversely, Mr. Ouslis stated that no income should be imputed to him for 2013, 2014 and 2015. There is no evidence regarding his eligibility for Employment Insurance. He was not cross-examined on this issue. He made extensive efforts in good faith to find employment with compensation similar to his historical levels of income, after he was terminated from Spectra 7. There is no evidence to suggest that Mr. Ouslis was attempting to avoid his child support obligations from 2013 to 2015. He paid voluntary support to Ms. Ouslis while he was employed and while he was receiving severance pay up until April 2013.

Ms. Ouslis’ Position

[166] The parties’ eldest child, N.O., was born in 1994. Ms. Ouslis stated that she took a maternity leave for six months and then returned to work part time at the Ministry of the Environment. After S.O. was born in 2000, she stayed home to raise the children. Ms. Ouslis testified that after separation in 2011, she tried to find a job. She provided an extensive list of all of the places where she applied for work; however, the evidence regarding when she applied for these jobs is not clear.

[167] I note that Ms. Ouslis is an intelligent, educated woman who held very responsible jobs up until March 2000. She obtained a degree in commerce and English literature from the University of Toronto in 1988. After working for an insurance company and C[…] Bank for a short time, she enrolled in a certified management accountant program. She completed all of the professional education requirements but did not finish the course because the fees became too expensive. She then obtained her real estate licence. She started working for the provincial government in 1990 as an internal auditor for the Ontario Provincial Police, Firearms Office and the Coroner’s office. Then she went to the Ministry of Energy and worked in the policy branch preparing briefings, carrying out research and forecasting energy prices among other things. She worked for the Ministry of the Environment for a time and was then seconded to the Attorney General as a policy analyst. She calculated funding requirements for the Ontario Legal Aid Plan. She prepared responding correspondence for the Attorney General. She also prepared policy submissions for same sex benefits and young offenders.

[168] Ms. Ouslis stated that her job at the Ministry of the Attorney General involved forensic investigations. She was carrying out audits which involved reviewing the procedures of various branches, determining whether controls for funds were being followed and confirming whether various procedures were being followed including procurement processes. Her various jobs with the Ontario government gave her experience in auditing, budgeting and accounting.

[169] Ms. Ouslis stated that during the marriage, she took a non-profit and voluntary sector management course at Ryerson. This consisted of eight credits which she obtained between 2003 and 2010.

[170] Ms. Ouslis was 46 on the date of separation. She had been out of the work force for over 11 years. Her last day of work was March 16, 2000. Ms. Ouslis stated that she could not return to work after separation because she had young children at home, one of which did not start school until September 2011. She had to take them to their appointments and various activities.

[171] She stated that she plans to return to school in September 2016 to take a fraud investigation course at Seneca College. If successful, she would graduate with a certificate in fraud investigation and forensic accounting.

[172] Ms. Ouslis stated that although she applied for numerous jobs, she obtained only one interview. Her search has been directed at mid-level positions involving accounting and fraud investigating; however, she has also applied to be a court reporter and a bank teller. She stated that her working hours would be limited because S.O.1 still attends a French school in Kleinburg, whereas Z.O. attends school in King City. She has to pick up S.O.1 after school. She agreed that S.O.1 could take a bus from her school to Mr. Ouslis’ house and Ms. Ouslis could pick her up at the end of the day. She is with Mr. Ouslis alternating Wednesdays and alternating weekends.

[173] Ms. Ouslis’ position is that she is owed $160,000 in retroactive child and spousal support up to 2013. She states that from January 1, 2011 to April 1, 2013, income of $185,000 per year should be imputed to Mr. Ouslis together with any investment income that the corporations earned, although she provided no evidence as to the amount of investment income that should be included.

[174] Ms. Ouslis states that after his severance ran out in April 2013, Mr. Ouslis should have earned $54,924 at a minimum as well as any self-employment income and any investment income. Ms. Ouslis stated that he would have been entitled to employment insurance benefits of $537 which would result in an annual income of $27,924 per year, plus a weekly benefit allowance. From April 1, 2013 to December 2014, $54,924 should be imputed to him together with self-employment income of $6,000. She states that a person is permitted to earn $6,000 while in receipt of employment insurance benefits.

[175] Aside from Ms. Ouslis’ position, there was no evidence of Mr. Ouslis’ entitlement to employment insurance benefits, if any.

[176] Ms. Ouslis states that for support purposes, Mr. Ouslis’ income should be $64,000 from Redtree plus any investment income in 2015. I note, as stated above, that Mr. Ouslis’ employment at Redtree began on December 1, 2015.

[177] Ms. Ouslis states that no income should be imputed to her from January 1, 2011 to the present. She had children at home and no parents to help her. She suggested that she could reasonably be earning an income by June 2017. Z.O. will turn 12 then and can be home alone. She stated that she would be willing to start work immediately if someone offered her a full time job that paid $25,000. Nevertheless, this would not be in line with her plan to attend school in September 2016.

[178] I note that Z.O., the parties’ youngest child, began kindergarten in September 2011 so all of the parties’ children were in school by that date.

[179] Should additional income be imputed to Mr. Ouslis between May 2013 and November 30, 2015 when he was unemployed?

[180] Pursuant to s. 19(1) of the FCSG, the court may impute income to a spouse as it considers appropriate in the circumstances which include (a) a spouse is intentionally unemployed or underemployed.

[181] Mr. Ouslis was unemployed for two years and nine months, from April 1, 2013 to November 30, 2015. Nevertheless, in 2013, when he was unemployed for 9 months of that year, he earned $100,628. In 2014 and 2015, he earned $25,862.69 and $16,268 respectively. Imputing income of $185,000 to Mr. Ouslis, as suggested by Ms. Ouslis, is not reasonable, given that his average income for 2010, 2011 and 2012 is $193,957 which includes the bonus in 2011. Mr. Ouslis had high-paying jobs in a small sector of the technology industry.

[182] Nevertheless, Mr. Ouslis knew in August 2012 that his income would end by April 2013. He did not obtain another job until December 1, 2015. In the interim, he had three years and three months to look for employment. Mr. Ouslis stated that he looked for work both in the technology industry and outside of it. His evidence regarding his job search was vague.

[183] When Mr. Ouslis was terminated from Spectra 7, he was a 50 year old, intelligent man with a university education. He had been self-employed twice in his career. I do not accept his evidence that he could not find employment earlier than December 1, 2015. His income in 2014 was the equivalent of a minimum wage job. His income in 2015 was two thirds of that. When he did find employment, his salary was $64,800

[184] Although Mr. Ouslis’ severance ran out by April 2013, he was still able to earn $100,638 in 2013. He should have been able to find a job within 16 months of his being notified of his termination, in other words, by January 2014. It is unrealistic to expect that he would have earned $185,000 because he likely would not have found employment in his exact line of work immediately. It is realistic to expect that with his education and experience, he would have found a mid-level job. I find that he ought to have been able to find a job that paid $50,000 beginning on January 1, 2014. He was intentionally under-employed from January 1, 2014 to November 30, 2014. Accordingly, pursuant to s. 19(1)(a) of the Family Law Act, I impute an annual income of $50,000 to him for that time period.

Should income be imputed to Ms. Ouslis?

[185] Ms. Ouslis’ tax returns show that she earned $8,465 in 2012. When the parties separated, N.O. went to live with Mr. Ouslis and the three younger children remained with Ms. Ouslis. Managing children when the youngest is not in school is a full time job; however, by September, 2011, Z.O. was in school full time.

[186] Ms. Ouslis believes that she should be earning an income by 2017. In other words, she would start working six years after separation. There is no reason why Ms. Ouslis could not have found employment by January 1, 2013. By that time, all of her children were in school full time. She should have been earning a modest income by January 2013, two years after separation. I find that she was intentionally underemployed from January 1, 2013 and going forward. By December 2014, only S.O.1 and Z.O. were living with her. Ms. Ouslis submits that no income should be imputed for her for September 2016 to June 2017 because she applied for the Seneca Program which was to start in September 2016. There was no evidence that she was accepted into the program. There was no evidence regarding what, if any, child care arrangements she had made to allow her to attend a fulltime education program. Accordingly, I cannot determine that no income should be imputed to her for that period.

[187] Ms. Ouslis also submits that S.O.1 will be attending a high school next year which is some distance from the home. She submits that she will be required to drive S.O.1 home from school at 2:30 p.m. each day; therefore, she will have considerable difficulty finding a job to accommodate this.

[188] Most parents who work full time cannot drive children home from school at 2:30 p.m. Decisions regarding which school a child will attend can be made based on the availability of a school bus to provide transportation to and from the home. Alternately, other driving arrangements may be made.

[189] In 2013, Ms. Ouslis was 49 years old and had been out of the work force for 12 years. This put her at a significant competitive disadvantage in contrast to a younger person with current skills and a work history. Given her extensive (although perhaps not timely), unsuccessful job search for middle management positions, I find that she is unlikely to find employment that pays much more than minimum wage. Accordingly, I impute income to her of $25,000 beginning on January 1, 2013 and for each subsequent year.

How Much Child Support was Payable From July 2012 to April 2016?

[190] There has never been a temporary or final order regarding child support in these proceedings. Ms. Ouslis did not bring a motion for interim child support.

The Parties’ Positions on Child Support

2012

[191] Mr. Ouslis states that according to the FCSG, $3,181 was payable per month. The total payable for 2012 was $19,086. He paid $38,049.68 in 2012. Therefore, he paid $18,963.68 in addition to his child support obligation. Ms. Ouslis did not dispute the amount that Mr. Ouslis paid for child support in 2012. I find that no retroactive amount is owed for child support in 2012.

2013

[192] Mr. Ouslis stated that with $25,000 of income imputed to Ms. Ouslis, according to the FCSG, $1,788 was owed per month from January to June, $1,231 was owing from July to August and $1,597 was owing from September to December. The total owing was $19,578. He paid $35,588.77 in 2013. Therefore, he paid $16,010.77 in addition to his child support obligation. Ms. Ouslis did not dispute the amount that Mr. Ouslis paid for child support in 2013. I find that no retroactive amount is owed for child support in 2013.

Has Mr. Ouslis’ Spousal Support Obligation for 2012 and 2013 been Satisfied?

Mr. Ouslis’ Position

2012

[193] Mr. Ouslis states that from July to December, according to the SSAG “with child support formula”, the high range amount is $1,742 per month, $10,452 in total for six months. He paid $18,963.68 above his child support obligation. Ms. Ouslis did not dispute the amount that Mr. Ouslis paid in addition to his child support obligation in 2012. Accordingly, I find that Mr. Ouslis’ spousal support obligation for 2012 was satisfied.

2013

[194] Mr. Ouslis states that even with no income imputed to Ms. Ouslis, from January to December, according to the SSAG “with child support formula”, the high range amount is $1,128 per month, $13,536 in total for 12 months. He paid $16,010.77 above his child support obligation. Ms. Ouslis did not dispute the amount that Mr. Ouslis paid in addition to his child support obligation in 2013. Accordingly, I find that Mr. Ouslis’ spousal support obligation for 2013 was paid.

What level of spousal support is appropriate for Ms. Ouslis from 2014 to 2016?

[195] As noted above, there has never been a temporary or final spousal support order in these proceedings.

[196] Section 33 of the Family Law Act sets out a number factors that are relevant to spousal support. I have already discussed some of them in detail above. At the time of separation, the parties had been married for 22 years and 8 months years and, aside from an 18 month separation, cohabited for the duration. Ms. Ouslis has not worked outside the home since 2000. She is currently 53 years old. She stated that she has received two job offers, one as a baker for a catering company and another at a commercial real estate company. She did not provide details regarding the compensation offered.

[197] Ms. Ouslis testified that she wants to pursue a forensic investigating course at Seneca College this fall. Whether having this further education will increase her employment opportunities is uncertain.

[198] Ms. Ouslis performed housekeeping, child care and domestic services for the family as if she was devoting the time spent in performing those services in remunerative employment and was contributing the earnings to the family’s support. She ran the household which allowed Mr. Ouslis to focus on his career and develop his companies.

[199] While the parties were married, they had a high standard of living. Their last matrimonial home was 4,000 square feet and was located in Kleinburg. According to Ms. Ouslis, they intentionally lived under their means and accumulated savings.

[200] Ms. Ouslis stated that she has few assets (aside from the money saved for the children valued at $434,315.20 on the date of separation). I note that this is partly as a result of decisions she made. She stated that she chose to contribute between $75,000 to $100,000 to the children’s RESP after separation. She remains entitled to half of the balance held in trust on the sale of the matrimonial home.

[201] Mr. Ouslis stated that he significantly depleted his savings and relied on lines of credit to meet his expenses after he was terminated from Spectra 7 and was unemployed. He also remains entitled to half of the balance held in trust on the sale of the matrimonial home. As noted above, on April 11, 2016, he obtained a good job with a salary of $126,172. He has the means to provide support.

[202] Having considered the above-noted factors, I find that Ms. Ouslis requires support and is entitled to a combination of compensatory support and means/needs support. Because she gave up her career, stayed home for 11 years to raise children and provided Mr. Ouslis with the opportunity to advance his career, I find that she is entitled to high range spousal support as set out in the SSAG “with child support formula” for 11 years post separation, when spousal support is payable, to compensate her for those 11 years.

[203] Given the parties’ lengthy marriage, I find that Ms. Ouslis is entitled to indefinite spousal support. I find that commencing in 2021; she is entitled to mid-range spousal support as set out in the SSAG “with child support formula.”

[204] I note again that S.O.1 and Z.O. reside primarily with Ms. Ouslis. S.O. resides exclusively with Mr. Ouslis. S.O.1 and Z.O. have week about parenting time during the summer.

[205] Ms. Ouslis did not provide any calculations regarding the amount of child and spousal support to which she claims she is entitled. She submits that she is entitled to retroactive support calculated at its net present value, that it should be paid in a lump sum, and that it should be indexed for inflation. I note that Ms. Ouslis did not claim a lump sum payment in her amended answer. She did not claim that support be calculated at its present value. She also claims that Mr. Ouslis’ support obligation should be based on investment income earned by the corporations and other income that he earned from other sources such as patents and royalties. Ms. Ouslis provided no evidence that Mr. Ouslis earned any income or received any royalties from patents. Interest earned by investments owned by a corporation is income to the corporation, not a particular shareholder.

2014

January to June: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis from January to June, according to the SSAG “with child support” formula, the child support amount is shown to be $701 per month, after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown as zero. Accordingly, no spousal support is payable by Mr. Ouslis for 2014. The total child support payable is $4,206 ($701 x 6).

July to August: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis from July to August, according to the SSAG “with child support” formula, the child support amount is shown to be $335 per month, after offset against Ms. Ouslis’ child support obligation of $624, and the spousal support amount is shown to be zero. Accordingly, no spousal support is payable by Mr. Ouslis. The total child support payable is $670 ($335 x 2).

September to November: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis from September to December, according to the SSAG “with child support” formula, the child support amount is shown to be $701 per month, after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown as zero. Accordingly, no spousal support is payable by Mr. Ouslis. Total child support payable is $2,103 ($701 x 3).

December: S.O. began to live with Mr. Ouslis.

[206] With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis, according to the SSAG “with child support” formula, the child support amount is shown to be $485 per month after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown as zero. The child support payable for December is $485.

[207] In summary, for 2014, Mr. Ouslis owes $7,464 for child support. (4,206 + 670 + 2,103+485)

2015

January to June: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis, according to the SSAG “with child support” formula, the child support amount is shown to be $485 per month after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown as zero. Accordingly, no spousal support is payable by Mr. Ouslis for 2015. The child support payable is $2,910 ($485 x 6).

July to August: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis, according to the SSAG “with child support” formula, the child support amount is shown to be $194 per month after offset against Ms. Ouslis’ child support obligation of $549, and the spousal support amount is shown to be $384 at the high range. Accordingly, I find that spousal support of $384 per month is payable by Mr. Ouslis, totalling $768 ($384 x 2) and the total child support payable is $388 ($194 x 2).

September to November: With $50,000 imputed to Mr. Ouslis and $25,000 imputed to Ms. Ouslis from September to November, according to the SSAG “with child support” formula, the child support amount is shown to be $485 per month, after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown to be zero. Accordingly, the total child support payable is $1,455 ($485 x 3).

December: Mr. Ouslis obtained employment at Redtree with a salary of $64,800. With $25,000 imputed to Ms. Ouslis for December, according to the SSAG “with child support” formula, the child support amount is shown to be $705 per month, after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown to be zero. Accordingly, the total child support payable is $705.

[208] In summary, Mr. Ouslis owes $5,458 for child support ($2,910 + $388 + $1,455 + $705) and $768 for spousal support.

2016

January to April: Redtree terminated Mr. Ouslis part way through January. He was unemployed until late April. I do not attribute any income to him for these four months because one might expect that he would need this time to find a new job. No child support or spousal support is payable. With $25,000 attributed to Ms. Ouslis, according to the SSAG “with child support formula, Ms. Ouslis’ child support obligation is $258. Accordingly, the total child support payable by Ms. Ouslis is $1,032 ($258 x 4).

May to June: With Mr. Ouslis’ salary of $126,172 and $25,000 imputed to Ms. Ouslis, according to the SSAG “with child support” formula, the child support amount is shown to be $1,478 after offset against Ms. Ouslis’ child support obligation of $258, and the spousal support amount is shown to be $1,147 at the high range. I find that the spousal support payable per month is $1,147. I find that the total spousal support payable is $2,294 ($1,147 x2). The total child support payable is $2,956 ($1,478 x 2).

July to August:

[209] With Mr. Ouslis’ salary of $126,172 and $25,000 imputed to Ms. Ouslis, according to the SSAG “with child support” formula, the child support amount is shown to be $1,187 after offset against Ms. Ouslis’ child support obligation of $549, and the spousal support amount is shown to be $2,320 at the high range. I find that the spousal support payable per month is $2,320. I find that the total spousal support payable is $4,640 ($2,320 x2). The total child support payable is $2,374 ($1,187 x 2).

September to December: The calculation for this period is similar to the May – June monthly amounts shown above. I find that the spousal support payable is $4,588 ($1,147 x 4). The total child support payable is $5,912 ($1,478 x 4).

[210] In summary, Mr. Ouslis shall pay spousal support of $11,522 (2,294 + 4,640 + 4,588) and child support of 11,242 (2,956 + 2,374 +5,912) for the period of May – December, 2016. Ms. Ouslis shall pay child support of $1,032 for the period January to April, 2016.

2017

[211] Beginning on January 1, 2017 and going forward, Mr. Ouslis shall pay child support of $1,478 per month and spousal support of $1,147 in the winter months and fall months (January to June and September to December). He shall pay spousal support of $2,320 and child support of $1,187 in the summer months (July and August), subject to a material change in circumstances.

[212] In 2021, spousal support shall be reviewed based on the parties’ incomes at that time, including any s. 7 expenses being paid, and in accordance with the mid-range of the SSAG then in effect.

Section 7 Expenses

[213] The parties provided evidence regarding only one s. 7 expense, being N.O.'s university tuition. Mr. Ouslis stated that he paid $24,000 toward N.O.'s tuition over the last three years of her degree. Ms. Ouslis controls the children’s RESP. In the four years that N.O. attended university, Ms. Ouslis released the sum of $6,952.88 from the RESP pursuant to an order. I conclude that Mr. Ouslis ought to be reimbursed. Ms. Ouslis shall reimburse Mr. Ouslis for $24,000 from the RESP upon proof of enrollment and the corresponding amount of tuition.

[214] The RESP shall be the first source of contribution to the other children’s post-secondary expenses. After that, the parties shall contribute proportionally to these expenses subject to any contribution from the children.

[215] With respect to other s. 7 expenses that may arise, Ms. Ouslis shall provide written proof of the cost of the proposed expense to Mr. Ouslis in advance. If Mr. Ouslis consents to the expense, he shall contribute 75% and Ms. Ouslis shall contribute 25% to the cost of it. He shall not unreasonably withhold his consent.

Upgrading for Ms. Ouslis

[216] Ms. Ouslis submitted that Mr. Ouslis should pay the cost for various upgrading courses that she wishes to take, including the course at Seneca. She did not make a claim for this in her Amended Answer. No documentary evidence was provided regarding the cost of this course. It is entirely speculative as to whether Ms. Ouslis will be accepted to or take any further upgrading courses.

Divorce

[217] The parties have lived separate and apart for over 4 years. The applicant may proceed with a divorce on an uncontested basis.

Final Summary

[218] Ms. Ouslis shall pay an equalization payment of $123,839.73 to Mr. Ouslis.

[219] For 2012 and 2013, no child or spousal support is owed.

[220] For 2014, Mr. Ouslis shall pay retroactive child support of $7,464 to Ms. Ouslis.

[221] For 2015, Mr. Ouslis shall pay retroactive child support of $5,458 and spousal support of $768 to Ms. Ouslis.

[222] For 2016, Mr. Ouslis shall pay child support of $11,242 and spousal support of $11,522, part of which is retroactive from the release date of this judgment.

[223] Beginning on January 1, 2017 and going forward, Mr. Ouslis shall pay child support of $1,478 per month and spousal support of $1,147 in the winter months and fall months (January – June and September to December). He shall pay spousal support of $2,320 and child support of $1,187 in the summer months (July and August).

[224] In 2021, spousal support shall be reviewed based on the parties’ incomes at that time, including any s. 7 expenses being paid, and in accordance with the mid-range of the SSAG then in effect.

[225] Ms. Ouslis shall reimburse Mr. Ouslis from the children’s RESP in the amount of $24,000 for his payment of N.O.'s university tuition upon proof of enrolment and the cost of tuition.

Costs

[226] If the parties cannot agree on the amount of costs or who should pay them, they may provide written submissions. The text of the submissions shall be a maximum of 8 pages with 1.5 spacing, regular margins and 12 point font. The applicant shall attach a bill of costs. The respondent may attach a bill of costs from the period when she was represented by counsel. The parties shall serve on each other and file written submissions within 30 days of the release date of this decision. They may serve on each other and file responding submissions within a further 15 days.

[227] The proceeds of the matrimonial home currently held in trust by the parties’ real estate lawyer, shall continue to be held in trust pending the determination of costs in this proceeding.

VALLEE, J.

Released: October 25, 2016