Christakos v. De Caires , 2016 ONSC 702

NEWMARKET COURT FILE NO.: FC-13-42937-00

DATE: 20160129

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Peter Panagiotis Nick Christakos

Applicant

– and –

Gina Santos De Caires

Respondent

M. Tweyman, for the Applicant

R. Heft, for the Respondent

HEARD: June 1-5 and November 16, 18, 19, 20, 2015

REASONS FOR JUDGMENT

NICHOLSON J.:

BACKGROUND FACTS

[1] The Applicant Peter Christakos (the husband) was born December 1, 1967 and is 48 years old. The Respondent Gina De Caires (the wife) was born August 14, 1967 and is 48 years old.

[2] The Applicant and Respondent were married on February 5, 2005 and separated on September 5, 2011. Following separation they resided together with the children in the matrimonial home until February 3, 2013 when the wife was charged with assault against the husband.

[3] There are two children of the marriage (the children):

a. I.S.D., born […], 2006 (currently 9 years old) and

b. C.N.D., born […], 2008 (currently 7 years old).

[4] The parties have joint custody of the children and share parenting time on a 50/50 basis. Custody and access have been resolved. Evidence was led in the trial with regard to division of child care responsibilities only as it relates to entitlement for spousal support. The wife claimed that she was the primary caregiver during the marriage because the husband was engaged in his busy dental practice. The husband however claimed that the wife was also busy with teaching, selling real estate, and attempting to develop and sell a board game. He claimed that the parties shared parenting responsibilities during the marriage and after separation.

[5] The parties signed a written temporary, without prejudice agreement on August 15, 2013, which required the husband to pay child support, commencing September 1, 2013, in the amount of $1,252 per month based on a strict set-off of each party’s child support obligations. This agreement was not turned into a court order. The husband has provided the wife with post-dated cheques for this amount and has paid it consistently and on time. Both claim retroactive adjustments with respect to child support. The husband agreed that he is required to pay child support based on a strict set-off of obligations owed by each party under the Federal Child Support Guidelines, S.O.R./97-175, but the parties cannot agree as to the proper income for each party. At the date of marriage both parties were established in their careers. The husband was a dentist and owned at that time a dental practice, which he eventually sold during the marriage. The wife was a teacher and was in the process of obtaining her license to sell real estate.

[6] The parties agreed on the value to be assigned to many assets and debts in the Net Family Statement in their Statement of Agreed Facts. There were a number of disputes with respect to other assets and debts relevant to the issue of the equalization payment, which required determination at trial.

[7] The husband also claims post-separation credits and/or payments under a purported trust agreement, dated October 29, 2004.

[8] The wife claimed to be entitled to an unequal division of net family properties. She claimed the husband improvidently depleted assets and or recklessly accumulated debt.

[9] Although the parties dispute entitlement to spousal support, they agree that, in the event the court finds an entitlement to spousal support, the court is requested to award a lump-sum payment in respect of spousal support as opposed to periodic payments.

ISSUES

1. Credibility: The parties have a drastically different view of the events and circumstances that took place both during the relationship and post-separation. Because the court must assess the roles played by the parties before and after separation for the purposes of determining issues of both spousal support and equalization, findings with regard to credibility are required.

2. Income: What is the income of the parties for purposes of the calculation of child support and spousal support?

3. Child support: A calculation is required of the set-off child support payable from the applicant father to the respondent mother for both ongoing and retroactive purposes.

4. Spousal support: Is the Applicant mother entitled to spousal support, and if so, what is the quantum of the lump sum spousal support to be ordered?

5. Property Issues

a. Equalization: The court must determine the value to be attributed to numerous assets and debts in dispute in order to calculate the equalization payment owed.

b. Is the wife entitled to an unequal division of property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3?

c. Is the husband entitled to any post separation credits for expenses relating to the matrimonial home until it was sold?

CREDIBILITY

[10] Both parties raise the issue of credibility. Each argues the other’s evidence was not credible and that the court should accept his/her version of any events that may be in conflict.

In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis in original.]

[11] I found that the husband’s evidence given both in-chief and during cross-examination to be straightforward and internally consistent. I did not find that he exaggerated. His evidence was consistent with other evidence and it was inherently probable and reasonable.

[12] The wife’s evidence, on the other hand, was problematic for several reasons. First of all, I found that her demeanor during testimony was disturbing. During her examination in-chief she smiled and laughed eerily as she spoke about her relationship with the husband. Her evidence was often given in a very sarcastic or glib manner. I am aware, however, that I am not to base my decision regarding credibility on the demeanor of a witness alone.

[13] I also found that the wife’s evidence was inconsistent with the evidence she gave during questioning. For example, during questioning she claimed that the reason she left her teaching position was that she wished to actively pursue her career in real estate. During her evidence at trial she attempted to blame her retreat from teaching on the husband because, according to her, he falsely accused her of assaulting him.

[14] Furthermore, the wife’s evidence was contradicted by the testimony of not only the husband, but also the wife’s brother-in-law. Specifically, the brother-in-law testified that the wife entered his home and assaulted the husband. The wife’s testimony was that she was the victim of the assault. The police laid assault charges against the wife based upon the evidence of the adults present in the home. Those charges were ultimately withdrawn. If I was relying upon this incident alone I might have difficulty concluding the wife’s credibility was questionable.

[15] Most troubling however, was the evidence the wife gave with regard to her decision to attend at her sister’s home on the night of the alleged assault. She claimed that she had left her home on the night in question with the children in the car in order to check on her parents’ property as they were on vacation. She also contended that she went looking for a Tim Horton’s coffee shop after checking on her parents’ home. This led her to drive by her sister’s home where she saw the husband’s car. This discovery upset her because she claimed that her husband and her sister were having an emotional affair. This incident occurred almost two years after the parties separated. During cross-examination, counsel for the husband presented to the wife a map showing the location of the properties in question including several Tim Horton’s coffee shops much closer to the matrimonial home and the wife’s parents’ home. This rendered the wife’s explanation for being in the vicinity of her sister’s home extremely implausible. The wife continued to maintain her story nonetheless.

[16] I also note that the wife had motivation to exaggerate her evidence regarding the division of child care responsibilities between the parties. Her claim for spousal support would be strengthened by arguing she did most of those duties, while the husband did very little.

[17] For these reasons I have determined that the wife’s evidence lacked credibility and as such, I prefer the evidence of the husband over that of the wife in areas where the evidence of the two are in conflict.

INCOME OF THE PARTIES

Husband’s Income

[18] I make my finding with regard to the husband’s income primarily based upon the evidence given by him in-chief. He acknowledged that his gross income for 2015 up until September 30 was $118,731. This equates to an annualized gross income of $158,308. I accept the wife’s argument regarding allowable employment deductions for the husband. Because the husband is employed and no longer running a corporation, his employment expenses should not include vehicle expenses or depreciation, which amounts to approximately $5,000 of the $13,000 of expenses he claims from his gross income. As such I will allow $8,000 of deductions resulting in a net income for support purposes of $150,308.

[19] I do not accept the argument from the wife that the husband’s income should be based on the deposits made to his bank account in 2015. She did not file or elicit enough evidence during the trial to support this theory.

Wife’s Income

[20] Throughout the marriage and since separation the wife has had two main sources of income. She has earned a living by teaching and selling real estate. Her income as reported on line 150 of her income tax returns was as follows:

2012– $38,805

2013– $42,441

2014– $47,062

[21] She testified that her year to date income for 2015 at the time of trial was only $11,000 and she relied extensively on the financial assistance of her parents. She also testified that she anticipates pursuing her real estate career more vigorously after these proceedings end. She claimed one of the reasons for her lowered income was that she could no longer pursue teaching of the children due to the criminal charges that were made against her. Although the charges were withdrawn, she can no longer provide a clear vulnerable sector police record.

[22] As outlined above under the Credibility section, I do not except the wife’s version of events that led to her being charged criminally. As such I find that she is the author of her own employment misfortune. To her credit, the wife is versatile and able to pursue more than one source of income. She also teaches adults.

[23] I do not accept the husband’s argument that the money the wife has received from her parents should be added to her income. The evidence is clear that the money she receives from her parents is to offset her need since separation, a need that partly results from the fact the husband is not paying any spousal support to her.

[24] In all of the circumstances I find that the wife is underemployed and I will impute income to her in the amount of $40,000 in line with her 2014 income, less some expenses as a real estate agent.

CHILD SUPPORT

Retroactive Calculation

[25] As part of her submissions, the wife has filed a calculation of retroactive child support. The husband filed his own version of the income to be attributed to each of the parties, which disputes the wife’s calculations. I do not accept the husband’s argument that the wife’s real estate expenses should be added to her income. She was pursuing real estate at least on a part-time basis and had legitimate related expenses. I do accept however, the husband’s position that his income should be reduced by the dividends that were paid under the informal trusts held for the children.

[26] Following the separation of the parties in September 2011, they continued to live together in the matrimonial home until February 3, 2013 when assault charges were laid against the wife. Although the wife testified that post-separation she was the primary caregiver of the children, the husband maintained that the parties shared all parenting responsibilities. Neither party gave clear evidence with regard to the sharing of expenses in relation to the children after the date of separation and during the time they all resided in the home. Each party testified as to the division of the household expenses, which is relevant to the calculation of spousal support and possibly to the issue of offsetting post-separation expenses. These issues will be addressed below.

[27] Based on my credibility findings above, I prefer the evidence of the husband over that of the wife in relation to the childcare responsibilities post-separation. Furthermore, even if the wife was responsible for the primary care of the children, (delivery to school, doctor’s appointments and bedtime routines), she has not established that she bore the financial burden of the children during the time that they all resided together in the matrimonial home after separation. For this reason I do not find that a retroactive payment of child support from the date of separation from the husband to the wife is appropriate. Instead, the start date for retroactive payments will be two months after the wife left the matrimonial home and started caring for the children on a 50/50 basis, being April 2013.

[28] Given that the parties share custody of the children, a set-off child support amount is appropriate. A temporary without prejudice agreement was made September 1, 2013 providing that the husband pay to the wife some of $1252 per month as set off child-support pursuant to the Federal Child Support Guidelines. The husband has paid pursuant to this agreement and these payments are set off against the retroactive calculation. I adjusted the wife’s retroactive calculation for the years 2011 through 2014 based on my finding regarding the husband’s income and the retroactive start date of April 2013. I have added the adjusted retroactive child support calculation to the 2015 total shortfall in child support, $2172. This figure is based on the income findings I have made above. The total retroactive child support owed by the husband to the wife is therefore $4260.

Ongoing Child Support

[29] Based on my findings that the husband’s income is $150,000 per year and that the wife’s income is $40,000 per year, the husband shall pay child support to the wife in the amount of $1433 per month commencing January 1, 2016, pursuant to the set-off provisions of the Federal Child Support Guidelines based upon a shared custody arrangement.

[30] The parties will share the s. 7 expenses for the children, with the husband paying 75% and the wife paying 25%.

SPOUSAL SUPPORT

Positions of the Parties

[31] The husband argued that the wife did not suffer any negative economic consequences as a result of the roles assumed during the six-year marriage. He submits that the wife’s earning potential did not suffer, but in fact improved as a result of the marriage. He acknowledged that the wife took brief maternity leaves after the birth of each of the two children but claimed that she never put her career on hold. He said that even throughout her maternity leave she was working on developing the board game. He said that while his income remained relatively stable throughout the marriage, the wife’s income doubled. He argued that the parties shared parental responsibilities throughout the marriage and after separation.

[32] The wife argued that she was significantly dependent on the husband for financial support as he was the primary breadwinner throughout the marriage. Her income was secondary. She also contended that she was not only the primary parent during and after separation , but also that the husband was an absent father, working well into the evening and most weekends. Furthermore, the wife contended that the husband was responsible for a decrease in her earning potential as a result of the criminal charges laid against her. She claimed that the allegation that she assaulted the husband was false. Although the charges were eventually withdrawn, the wife can no longer produce a clean criminal record check when a vulnerable sector search is conducted. She said this has eliminated the possibility of her teaching children. She is relegated to teaching adults and pursuing a real estate career.

[33] The wife also alleged that the husband interfered with her real estate career by contacting one of her former bosses, causing her to abandon this job.

Legislative Framework and Basic Principles Regarding Spousal Support

In Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001, Chappel J. provided an excellent summary of the law in relation to spousal support, at paras. 43, 46-52, 54-56 and 59-61:

i. Statutory Factors: Section 15.2(4) of the Divorce Act

[43] Sections 15.2(1) and (2) of the Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. Section 15.2(4) of the Act directs the court hearing a spousal support claim to take into consideration “the condition, means, needs and other circumstances of each spouse,” including:

a) The length of time the spouses cohabited;

b) The functions performed by each spouse during cohabitation; and

c) Any order, agreement or arrangements relating to support of either spouse.

[46] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge,and are circumscribed by that purpose. As L’Heureux-Dubé, J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,”and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.

[47] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.

ii. Statutory Objectives: Section 15.2(6) of the Divorce Act

[48] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:

15.2(6) Objectives of Spousal Support Order- An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[49] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties. With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S.It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable.” The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.

[50] In considering the objective of self-sufficiency, the court must also recognize that this concept is a relative one which must take into consideration the parties’ standard of living during the marriage. The Ontario Court of Appeal emphasized in Fisher v. Fisher and Allaire v. Allairethat self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”

[51] The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dubé, J. made this point in Moge v. Moge, where she stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”

[52] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.

2. General Principles Respecting Entitlement

i. Overview of the Grounds For Entitlement

[54] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter,the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.

ii. Compensatory Support

[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education,selling assets or a business for the benefit of the family unit,or assisting a party in establishing and operating a business that is the source of that party’s income.

iii. Non-Compensatory Support

[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutteras follows:

Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.

3. General Principles Regarding Quantum and Duration of Spousal Support

[60] The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in section 15.2 of the Act. The advent of the SSAG has provided considerable assistance in addressing questions relating to quantum and duration of spousal support. As the authors of the SSAG emphasize, the guidelines do not address the issue of entitlement to spousal support, and therefore they should only be considered after the preliminary issue of entitlement has been established. In Fisher v. Fisher, the Ontario Court of Appeal held that although the SSAG are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.” While the SSAG are not binding, they provide a valuable litmus test for assessing the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.

[61] The SSAG formulas generate suggested ranges for both quantum and duration of spousal support. The ranges allow for accommodations for the specific circumstances of each case, taking into consideration the support factors and objectives set out in the applicable legislation. The SSAG and the case-law that has considered the guidelines outline a number of factors which the court may wish to consider in deciding the appropriate quantum and duration of support within the ranges. These include the following:

a) The strength of any compensatory claim for support. A strong compensatory claim may be a factor that favours a spousal support award at the higher end of the ranges both in terms of quantum and duration. By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration.

b) The recipient’s needs. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges.

c) The age, number, needs and standard of living of the children.

d) The payor spouse’s needs and ability to pay.

e) The need to preserve work incentives for the payor.

f) Property division and debts. An absence of property to divide may render an award in the higher range appropriate. On the other hand, a significant property award to the recipient may cause the judge to determine that an award in the lower range is appropriate.

g) Self-sufficiency incentives in relation to the recipient spouse. [Footnotes omitted; emphasis in original.]

Application of the Law on Spousal Support

[34] To quote Chappel J. in Thompson, at para. 28:

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

[35] The degree of interdependency depends on the length of the marriage. In Thompson, at para. 51, Chappel J. noted the reasoning of L’Heureux-Dubé J., who observed in Moge v. Moge, [1992] 3 S.C.R. 813, 1992 25 (SCC), at para. 84, that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”

[36] Here I find that interdependence started to evolve but was limited by the short term of the marriage. The wife had the same earning potential at the time that she entered into the marriage as she did when the marriage ended. She enjoyed some benefits as a result of increased combined income during the marriage, and she assumed more (though not all) responsibility for the children during the marriage.

[37] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and increased the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. I find the wife has suffered some degree of economic disadvantage as a result of the assumption of child care responsibilities and the interdependency that evolved over the six-and-a-half year marriage. I do not find that the husband was responsible for the wife’s lost opportunity to teach children, which she attempted to argue. As outlined in my analysis of the wife’s credibility, I accept the husband’s version of the assault by the wife against him and, therefore, I find she is the author of her own employment misfortune in relation to teaching children. Likewise I do not find the wife credible in relation to her claim that the husband’s call to a former boss at the real estate firm had a detrimental impact on her ability to earn income from selling real estate. She testified that it is her intention to resume her real estate career when this trial is done.

[38] I find therefore that the wife’s entitlement to spousal support on a compensatory basis arises primarily out of the economic interdependence that resulted from a six-and-a-half year relationship in which the husband earned substantially more income than she did. Her compensatory claim is established, but it is weak.

[39] Spousal support obligations also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 1999 715 (SCC). There, the court emphasized that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Based on my findings regarding the income of the parties, I find that the wife has a need for spousal support and the husband has a corresponding ability to pay, especially in light of the agreement of the parties to have any spousal support ordered herein payable as a lump sum.

[40] For these reasons I find the wife is entitled to spousal support.

[41] This issue then becomes one of quantum and duration. The Spousal Support Advisory Guidelines assist me with this analysis. Application of the “with child support” formula in a shared custody situation produces lump sum totals at the three ranges for duration of three to 15 years from the date of separation. I have assessed the following factors to determine the quantum and duration:

a) The strength of any compensatory claim for support. As stated above the wife’s compensatory claim is weak.

b) The recipient’s needs. Although the wife currently has limited income she has a significant earning capacity.

c) The age, number, needs and standard of living of the children. The children are still young but the parties share custody and I do not see that child care responsibilities have limited in the past or will limit in the future the earning potential of the wife.

d) The payor spouse’s needs and ability to pay. The husband does have the ability to pay the lump sum support I have ordered.

f) Property division and debts. The parties each received $170,000 from the sale of the matrimonial home. A further $197,000 is being held in trust to address finalization of the support, property and costs issue.

g) Self-sufficiency incentives in relation to the recipient spouse. The wife has already indicated a desire to improve her income by increasing her involvement in the real estate business.

[42] For all these reasons, the husband will pay the wife a lump sum spousal support payment of $61,579, which represents the low range of the SSAG scale for a duration of five years following separation, based upon the husband’s income of $150,000 and the wife’s imputed income of $40,000 per year.

PROPERTY ISSUES

Equalization

[43] The parties disagreed with regard to numerous values to be attributed to assets and debts for the purpose of equalizing their net family properties. I will address each of those equalization issues below.

A. The value of the matrimonial home and the mortgage against the matrimonial home.

[44] In her draft net family property statement, the wife only included the funds remaining in trust following the sale of the matrimonial home; she did not include the value of the mortgage that was paid out upon the sale of the matrimonial home. As a result, by her calculations, the wife had a negative net family property which is increased to zero. This is not appropriate. The value of the matrimonial home as of the date of separation should be included, as should the value of the outstanding mortgage.

B. The funds held in trust for the children.

[45] As of the date of separation, an account existed for each of the children, each of which contained approximately $33,000. The wife argued that these were informal trust accounts held in the husband’s name alone. The wife argued that he is liable for all tax consequences and income earned on the accounts. Further, she submitted that he is at liberty to disperse the funds as he wishes without any controls or limitations; given that these accounts are not registered education funds, the husband is not limited to using these funds for the children’s education. Therefore, she argued, they should be included in his net family property statement.

[46] The paternal grandfather gave testimony that he set up trust funds for each of his grandchildren including others outside this family. He testified that he created the accounts in the names of the parents for convenience and to allow the parents full control over the accounts. He indicated it was his intention that these monies be set aside and be used for the benefit of his grandchildren alone. The evidence of the paternal grandfather was compelling and believable and unaltered through cross-examination.

[47] I am satisfied, on the evidence to the husband that these funds were either created as trusts for the children or qualified as gifts given during the marriage. The paternal grandfather transferred these funds and the children have beneficial ownership of them. As such they will not form part of the husband’s net family property.

C. The HomeLine line of credit

[48] From an equalization standpoint, this line of credit was secured against the matrimonial home requires very little attention. The wife argued that she was not aware of this debt and used this as support for her argument that she is entitled to an unequal division of family property. However, division of this debt between the parties on their net family property statements makes little difference to the bottom line. This debt was paid out from the sale proceeds from the matrimonial home. Because this was a debt secured against the home and because both parties agreed that they had an equal beneficial interest in the matrimonial home, the balance of this debt should be divided equally between the parties for the purpose of the equalization calculation.

D. Outstanding income taxes as of date of separation

[49] In her submissions and draft net family property statement, the wife proposed that the husband should apply a $12,000 credit against his outstanding income taxes for 2011. However, the accountant for the husband gave uncontroverted testimony that the husband’s outstanding income taxes as of date of separation for the year 2011 were $33,988.50. The wife offered no evidence to support her claim to apply a $12,000 credit and as such her claim fails.

E. Date of marriage values

Dental practice

[50] As of the date of marriage the husband owned a dental practice which was subsequently sold during the course of the marriage. The value of that dental practice, as determined by the husband’s expert, is challenged by the wife. The wife argued that the expert report must be discounted because the valuator relied upon inaccurate information from the husband and because the company providing the valuation was not neutral in its relationship with the husband. She argued that the same company that provided the valuation also was involved in the sale of the practice and received commission from the husband in excess of $40,000. She therefore argues bias.

[51] The husband on the other hand argued that the expert evidence was uncontroverted and therefore should be accepted at face value. He relied upon the case of Smeenk v. Dexleigh Corp., 1990 6935 (ON SC), 74 O.R. (2d) 385, in support of his position that the court should accept the expert’s opinion of the value of the dental practice in full, absent any competing expert or successful challenge to the assumptions underlying the opinion.

[53] No decision that has cited the Smeenk case has referenced the idea that where there is only one qualified expert offering evidence, that evidence should not be rejected, but “cannot be ignored”. Instead, Smeenk has often been cited for the method by which shares can be valued, specifically, that valuation of shares must be done without resort to hindsight evidence. This issue appears to be what the expert was called to testify about in Smeenk.

[54] At any rate, the trial decision of Smeenk was upheld by the Court of Appeal for Ontario, in Smeenk v. Dexleigh Corp., 1993 8596 (ON CA), 15 O.R. (3d) 608. In that decision, the court wrote, at p. 613, that “each party bears the onus of adducing evidence to substantiate its position. The court may, as in other types of cases, accept all or part of the evidence -- expert or otherwise -- tendered by any party, but must finally decide on an assessment of all the evidence that it considers to be a ‘fair value’”. The Court of Appeal also confirmed that courts have discretion and are not required to appoint expert witnesses where only one side has appointed an expert witness. The Court of Appeal decision, then, did not directly address the point made in the H.C.J. judgment of Smeenk on which the husband relies, namely, that judges are bound to follow the uncontroverted evidence of a single expert witness. At best, the Court of Appeal’s decision implies that courts may accept all or part of any evidence proffered at trial.

[55] Ontario Central Airlines Ltd v. Gustafson, 1957 387 (ON CA), 8 D.L.R. (2d) 584, is cited by the trial judge in Smeenk as support for the contention that judges are not to reject expert evidence, particularly if there is only one expert testifying and their evidence is uncontroverted. Gustafson has been distinguished since its release in 1957, but has never been overturned. It was most recently cited by the Court of Appeal for Ontario in 1998 in D.C. Gem Craft Inc. v. Pafco Insurance Co., 1998 2215 (ON CA), 40 O.R. (3d) 218, where the Court of Appeal held that although trial judges are “given a wide discretion as to the evidence [they] will accept…the discretion is not absolute and a trial judge should indicate the reasons for rejecting uncontradicted evidence” (at para. 13).

[56] This principle was very recently discussed in detail in a British Columbia Court of Appeal case, Ganges Kangro Properties Ltd. V. Shepard, 2015 BCCA 522, 2015 CarswellBC 3757. There, the court responded to the appellant’s reliance on the statements in D.C. Gem Craft that judges should not reject uncontradicted evidence without offering reasons. Generally speaking, the court in Ganges followed the reasoning laid out in D.C. Gem Craft: judges are not bound to accept cogent and uncontradicted evidence, but reasons should be given for rejecting such evidence. This is especially important where such evidence may be “critical” to a central issue. Any appellate review on the failure of a trial judge to consider evidence must only take place if the trial judge’s failure to do so constituted a material error.

[57] As such, I would suggest that the statement in Smeenk relied upon by the husband has been toned down by subsequent courts. As such the court is not bound to rely on uncontradicted expert evidence, but rather, where such evidence is very compelling and fundamentally relevant to the crux of the issues, reasons should be given for rejecting such evidence.

[58] With this in mind I am not willing to accept the expert report unequivocally simply because it was uncontroverted by other expert evidence. But, the evidence of the value of the dental practice at the date of marriage is of sufficiently critical importance to require I provide explanation for not accepting it at face value. For this reason I revisit the objections filed by the wife regarding the expert valuation. First of all, she argued that the valuator was not neutral. This argument fails in light of the comparisons included by the expert in her report found at Exhibit 67. She compared other dental practices to that of the husband and the husband’s valuation was at the low end. However, the wife’s argument that the valuator relied upon inaccurate information provided by the husband is correct. The husband conceded that valuator offered an opinion with regard to the practice’s value on the date of marriage in hindsight. Specifically, the practice’s date of marriage value was assessed after the practice had undergone numerous leasehold improvements, which took place after the date of marriage. The wife argued that the decoration and equipment in the dental office prior to these improvements were dated and unattractive. She offered a list of expenses totaling approximately $80,000, which she said represent cost of the leasehold improvements. She argued that the value assessed by the valuator should be reduced dollar for dollar to account for these leasehold expenses.

[59] While I agree some discount should apply to the valuation of the dental practice to reflect the fact that valuator was under the impression the leasehold improvements had been done prior to the date of marriage, I do not accept the argument of the wife that the value should be discounted by the exact amount of the cost of the leasehold improvements. The dental practice was an active business and a going concern at the date of marriage. The patient base, goodwill and revenue generated by the practice would have had a much greater impact on the value than the physical appearance of the office and equipment.

[60] For these reasons I believe a discount of 10% is appropriate. As such the value of the dental practice will be reduced from $228,920 to $206,028 as of the date of marriage

Date of marriage assets claimed by the wife

[61] In her draft net family property statement included with her submissions, the wife claimed she owned property (household contents and a vehicle) as of the date of marriage having total value of approximately $25,000. She submitted no evidence at trial to support these claims and as such, they fail.

Date of marriage assets claimed by the husband

[62] In her draft net family property statement, the wife neglected to include assets totalling $26,500 from the husband’s dental practice as of the date of marriage. This amount had been agreed upon and included in the statement of agreed facts submitted as Exhibit 1 by the parties. Accordingly, it will be included in the net family property calculation.

$30,000 debt owed from husband to his father as of date of marriage

[63] The husband argued that this debt was a moral debt only. No agreement was signed relating to this debt and no payment was made towards it until after the sale of the dental practice. He argued that the court cannot rely upon his payment of this debt to his father in hindsight. As such he contended that he does not have to include this as a debt as of the date of marriage.

[64] The wife argued that this debt needs to be treated as a date of marriage debt. Alternatively, she argued that its repayment should be considered evidence that the husband dissipated assets in contemplation of the divorce; it is one or the other. I find that the $30,000 debt existed as of the date of marriage and is therefore factored into the equalization of net family property.

[65] When all of the above findings are factored into the equalization calculation, the wife will owe the husband the sum of $30,424.68 to equalize the parties net family property.

Unequal Division

[66] The wife argued that the husband’s dissipation of family assets (distribution of the sale proceeds from the dental practice) and reckless accumulation of debt (the HomeLine line of credit and income taxes) justify the finding of unequal equalization pursuant to s. 5(6) of the Family Law Act, which reads as follows:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

​(a)​a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

​(b)​the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

​(c)​the part of a spouse’s net family property that consists of gifts made by the other spouse;

​(d)​a spouse’s intentional or reckless depletion of his or her net family property;

​(e)​the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

​(f)​the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

​(g)​a written agreement between the spouses that is not a domestic contract; or

​(h)​any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

[67] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 37, the court outlined the steps to determine whether the court should order an unequal division of property:

The steps to be taken when s. 5(6) is engaged are well- established. The court must first ascertain the net family property of each spouse by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally—and before making an order under s. 5(1) —the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paras. 5(6)(a) through (h): see Rawluk v. Rawluk, 1990 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4, at pp. 93-94 S.C.R.; Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513, [1991] O.J. No. 788 (C.A.), at pp. 525-26 O.R.; Stone v. Stone (2001), 2001 24110 (ON CA), 55 O.R. (3d) 491, [2001] O.J. No. 3282 (C.A.), at para. 39; LeVan v. LeVan (2006), 2006 31020 (ON SC), 82 O.R. (3d) 1, [2006] O.J. No. 3584 (S.C.J.).

[68] Serra clarified that unconscionable conduct is not necessarily required for a finding that equal division of assets would be unconscionable. Although Serra itself is cemented as a sound precedent, most recently being cited by the Court of Appeal for Ontario in Fielding v. Fielding, 2015 ONCA 901, 2015 CarswellOnt 19363, it is generally referenced for the proposition that the bar for unequal division is very high; in other words, it is most frequently cited for giving meaning or context to unconscionability, namely, that the equalization pursuant to s. 5(1) without adjustment must shock the court’s conscience. With regard to the rather more minor point that unconscionability can be found by looking to the results of equal division (not just spousal conduct), this was endorsed by the Superior Court of Justice in Brown v. Brown, 2015 ONSC 7968, 2015 CarswellOnt 19409, at para. 61, where Tzimas J. quoted with approval McDermot J.’s interpretation of Serra in Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344, at para. 236: “[B]ased upon the surrounding circumstances, the result was unconscionable, which is in accordance with Serra which states that s. 5(6) is directed towards the result rather than be behaviour of the parties. That result may be unconscionable because of circumstances surrounding how the parties had managed their affairs during marriage…”.

[69] Skrlj v. Skrlj (1986), 1986 6314 (ON SC), 2 R.F.L. (3d) 305 (Ont. H.C.J.), underscores the high bar for unconscionability, establishing that judicial discretion in division of assets upon divorce was virtually (though not entirely, because of the exception for unconscionability) extinguished with the introduction of the FLA. This principle was most recently relied on by the Court of Appeal for Ontario in Danecker v. Danecker, 2014 ONCA 239, 2014 CarswellOnt 3826, at para. 13. In that paragraph, the court cited an earlier Court of Appeal for Ontario case, Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, where Rosenberg J.A. held, at para. 53, that Skrlj establishes that “[t]he scheme of the [FLA] does not support the proposition that an application judge can simply redistribute properties among the parties.” Having been endorsed by appellate courts twice in the past two years, Skrlj, despite being an older case, remains good law.

[70] LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, also addresses the narrowness of unconscionability. It has been relied on just this past year by several Ontario Superior Court of Justice cases (Shair v. Shair, 2015 ONSC 5816, 2015 CarswellOnt 14332; Turk v. Turk, 2015 ONSC 5845, 2015 CarswellOnt 14939; Hillman v. Letchford, 2015 ONSC 3670, 2015 CarswellOnt 10048). MacDonald v. MacDonald, 1997 14551 (ON CA), 33 R.F.L. (4th) 75, which also described unconscionability as an action that must shock the conscience of the court, has also been relied recently, notably in Karkulowski v. Karkulowski, 2015 ONSC 1057, 2015 CarswellOnt 2321 and Naveed v. Naveed, 2015 ONSC 6296, 2015 CarswellOnt 19535.

Application of the Law

[71] The specific issue to be determined here is whether the equalization payment owing from the wife to the husband in the amount of $30,424.68 shocks the conscience of the court for one of the reasons enumerated under s. 5(6) of the FLA. The wife has specifically argued that the following subsections apply:

​(b)​the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

​(d)​a spouse’s intentional or reckless depletion of his or her net family property….

[72] The wife relied upon the case of Stone v. Stone, 2001 24110 (ON CA), 203 D.L.R. (4th) 257, to argue that the divestiture of funds that would have otherwise been available on equalization justifies and unequal division of property. In that case the husband had net family property valued at approximately $1,900,000. The wife’s net worth was approximately $116,000. After learning that he had only weeks to live, the husband took steps to secretly transfer most of his estate to his children.

[73] The wife also relied upon the case of Czieslik v. Ayuso, 2004 12667 (ON SC), 4 R.F.L. (6th) 229. In that case, within the year prior to separation, the husband concocted transactions in a surreptitious manner in an effort to divest himself of assets that the wife might otherwise have had a shared in through equalization. He owned property at the date of marriage that had increased in value by approximately $200,000. He ultimately registered a mortgage against the property and sold it without the knowledge of the wife. Clearly, the conduct of the husbands in both of these cases was intentionally devious and specifically focused on denying the wife a share of family property through the normal equalization process. In other words, the conduct of the husbands in either case shocked the conscience of the court.

[74] In the case before me, the wife has not convinced me that the husband’s conduct was so egregious or devious as to shock the conscience of the court. The husband sold his dental corporation and from the sale proceeds paid down legitimate debt obligations. After making such payments he still had $50,000 in cash, which he left in his bank account. None of the payments from the sale proceeds were gratuitous or frivolous. He filed as an exhibit a list of payments made from the sale proceeds which included numerous credit card payments, payment of income taxes, replenishment of his personal account to pay bills, and contributions to the down-payment of a condominium purchased by the husband and wife. Clearly, the wife was not happy that she did not receive any monies directly from the sale of the dental practice. However, this does not justify an unequal division of net family property.

[75] The wife also attempted to argue that the husband recklessly accumulated debt through the line of credit registered against the matrimonial home. Although she claimed she did not have independent legal advice, she signed the real estate documents required to register the security against a home. Admittedly, the husband was the only one that utilized the credit facility. Nonetheless, the wife failed to convince me that the husband withdrew funds from the line of credit for anything other than the consolidation of debt and the paying family expenses. Included among the expenses supported by the line of credit were expenses related to the wife’s effort to create and sell a board game. This line of credit was registered against the matrimonial home within the first two years of marriage and many of the debts were accumulated in the years 2007 through 2009 well prior to the date of separation in 2011.

[76] I have no doubt that the wife may have been surprised to learn that the HomeLine line of credit had a balance close to $200,000, which was ultimately paid out from the sale proceeds of the matrimonial home, but she did not establish that the husband had recklessly accumulated this debt. In fact, the debt did not directly benefit him on the final equalization as it was divided between the two spouses and paid off after the sale of the matrimonial home.

[77] As such the wife’s claim for an unequal division of family property s. 5(6) of the Family Law Act fails.

Post-separation Credits

[78] The husband argued that he is entitled to post separation credits for half of the expenses of the matrimonial home pursuant to the trust agreement entered into by the parties prior to the marriage. The parties disagreed as to why title to the matrimonial home was taken in the name of the husband alone. The husband argued that this was because the wife had a credit problem resulting from a previous bankruptcy. However, the wife argued that title was placed in the husband’s name alone to take full advantage of first time homebuyers incentives, since this was the first real property owned by the husband, while the wife had previously owned a home. In any event, the trust agreement was signed by both parties and contained provisions that the husband was holding the wife’s share of the home in trust for her. It also provided that the husband and wife would divide the cost of the matrimonial home equally between them. Neither party disputed the validity of this agreement. Likewise, neither party disputed the fact that the wife stopped paying her share of the expenses of the matrimonial home at some point during the marriage. The husband asked that the wife be required to pay her share of the expenses of the home from the date of separation in September 2011until the date the home was sold in July 2013. He claims her share of these costs is $42,839.45.

[79] The wife argued that the husband should not now be able to claim enforcement of the trust agreement relying upon the principles of promissory estoppel. She claimed that the husband never asked her to contribute to the expenses of the home after a few months into the marriage and cannot now make such a claim. She argued that the terms of the trust agreement were revised by the actions of the parties and that she relied upon the new arrangement to her detriment. Alternatively, she argued that the husband’s claim should be limited by a two-year limitation period. He asserted the claim in October 2014 and therefore should not be entitled to recovery prior to October 2012. The wife also stated that her share should not post-date February 2013 when she was required to leave the matrimonial home as a result of the assault charges against her.

[80] The value of the matrimonial home increased substantially between the date of separation and the sale of the home. The wife benefitted from this increased value notwithstanding the fact that her name was not on title by virtue of the trust agreement. It is only fair, therefore, that the other aspect of the trust agreement should also be in play. The wife benefitted from the provisions in the trust agreement that give her an equal share of the home; thus, she should also be responsible for the provisions that require her to pay half the cost of the matrimonial home. The home continued to increase in value following the date that the wife left the home, consequently, she should be responsible for her share of the expenses up until the date of the sale of the home. Her actions resulted in her removal from the home in February, 2013.

[81] I do agree, however, that the husband’s claim for these costs was not made until October 2014 and should therefore be limited to start in October 2012. The total claim made by the husband represents 23 months. The wife’s share of expenses starts October 2012 and continues until July 2013, for a total of 10 months. The wife’s prorated share of the cost is therefore $18,625.

[82] The following is a summary of my decision:

a. The husband is to pay to the wife a lump sum spousal support totaling $61,579 and retroactive child support for $4260 for a total of $65,839. The wife is to pay to the husband an equalization payment of $30,424.68 and post-separation adjustments of $18,625 for a total of $49,049.68. Therefore the offsetting payment owed from the husband to the wife is $16,789.32. This sum should be paid from the husband’s share of the money currently held in trust, following which those funds will be divided equally between the parties pending and subject to the court’s decision regarding costs.

b. There shall be no prejudgment interest on the payments outlined in the above paragraph.

c. Commencing January 1, 2016 the husband is to pay to the wife child support in the amount of $1433 per month pursuant to the set-off provisions of the Federal Child Support Guidelines based upon a shared custody, a 50/50 residency arrangement and the finding that the husband’s income is $150,000 per year, while the wife’s income is $40,000 per year.

d. The parties will share the s. 7 expenses for the children, with the husband paying 75% and the wife paying 25%. Parties are to agree upon any such expenses before they are incurred.

e. The husband will designate the wife as an irrevocable beneficiary of his life insurance policy with Empire Life, having a face value of $1,000,000, in trust for the children of the marriage. Within 30 days of this order, the husband shall provide proof to the wife of compliance with this term.

f. Neither party shall distribute, disclose, or disseminate to any other person any document that forms part of the financial disclosure received from the other party as part of the other parties’ disclosure for the purpose of this case.

g. The parties shall equally divide any registered education savings plans accumulated during the marriage on a 50/50 basis. Any contributions to RESPs made post-separation shall not be divided and shall remain with the person who made the contribution.

[83] If counsel are not able to reach an agreement with regard to costs they are to file cost submissions not exceeding five pages in length plus any relevant offers to settle and bills of costs within 14 days. Counsel are to take into consideration that the court considers this judgment to be one of mixed results, but offers to settle may change my view on that issue.

Mr. Justice Paul Nicholson

Released: January 29, 2016