Court File and Parties

COURT FILE NO.: FS-77-12 DATE: 2017-03-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deolinda Lima, Applicant AND: Joao Rocha Lima, Respondent

BEFORE: The Honourable Mr. Justice R.D. Reilly

COUNSEL: Lawrence K. Greaves, Counsel for the Applicant Mark S. Grossman / Samantha Ahn, Counsel for the Respondent

HEARD: February 7, 2017

Ruling on Application

[1] The parties were married in Portugal on or around December 27, 1984. After the marriage, the applicant, Deolinda Lima, sponsored the respondent Joao Lima so that he could have status as a permanent resident in Canada. Thus, Joao Lima moved from Portugal to Canada and to the Region of Waterloo, following the marriage.

[2] The parties lived together for many years before separating irreconcilably on or about December 2010. The respondent left the matrimonial home in September of 2012.

[3] The parties have two children of the marriage, Stephanie Lima who was born June 19, 1985 and Alexander Lima who was born May 16, 1993. The children of the marriage are now independent in all respects.

[4] Apart from other family properties, the parties acquired other real property. The matrimonial home at 12 Gilmour Crescent in Kitchener is where the applicant now resides. 73 Heiman Street in Kitchener is owned by the respondent husband. This is a lawful four plex or five plex, in which the respondent husband occupies one unit. The parties also acquired a partially completed single family home in Portugal, which has never been completed and has never been occupied.

[5] The evidence varied as to separation date. In her application, the applicant/wife pleads that her date of separation was December 5, 2010. The application was commenced on August 30, 2012. The applicant now pleads that the separation date was September of 2012. The separation date becomes of some significance only with respect to the valuation of properties on the date of the separation.

[6] 12 Gilmour Crescent, Kitchener, where the applicant resides, was originally the matrimonial home. 73 Heiman Street in Kitchener is owned by the respondent and is a lawful four plex or five plex, in which the respondent occupies one unit.

[7] The court heard conflicting evidence as to the value of the two properties, depending upon the date on which they were assessed. We heard from Mr. Bruce Boehmer, who is an experienced realtor in the area. We also heard evidence from Mr. Tony Alberto, who is also an experienced realtor and has been for many years in the area. Their evidence and their reports were presented before the court. Neither Mr. Boehmer nor Mr. Alberto qualified as an expert, but I have carefully considered the evidence they provided.

[8] It has been said that the difficulty of untangling the financial connections between married partners over a number of years is difficult, if not impossible in some cases and that may be so in this case. Deolinda Lima is living in what was the matrimonial home at 12 Gilmour Crescent and wishes to remain in that residence. Joao Lima is living in 73 Heiman Street and operating it as an income property. It may be noted at this point that both the litigants are on social assistance or disability and not, it would appear, in the position to provide significant funds independently to honour any court order. Both Deolinda Lima and Joao Lima are currently in receipt of social assistance or disability payments. Joao Lima obviously has the benefit of rent that he receives from other units in his property at 73 Heiman Street.

[9] The evidence of Deolinda Lima and Joao Lima differed greatly with respect to their living arrangements prior to separation, whether it was in 2010 or 2012. If I may summarize, it appears that the parties had a good marriage and raised their two children together. I have carefully examined the considerable financial records that had been filed before the court and they simply conclude that neither the applicant wife nor the respondent husband is well off financially. They have, however, as a result of their individual and perhaps collective efforts, acquired significant assets.

[10] What I wish to do is equalize those assets and their respective responsibilities in such a way that they can fairly get on with their lives.

[11] Though the evidence of the parties differs as to separation date per se, having considered the whole of the evidence, I conclude that separation occurred in 2010. The parties were still living in the matrimonial home at that time, but clearly living separate and apart. Their relationship was not capable of reconciliation from 2010 on, though it was not until 2012 that Joao Lima left the matrimonial home. However, one considers the various events testified to by the parties. From 2010 on, they were living effectively separate and apart and their relationship was not capable of reconciliation. Overall, they maintained the relationship of husband and wife for close to 30 years. I conclude that Deolinda Lima is therefore entitled to a substantial award of spousal support. A global award of spousal support can result from a creative equalization of their net family properties. Such equalization will also result in both parties being able to live with reasonable financial security.

[12] Deolinda Lima wishes to remain in her current address at 12 Gilmour Crescent, which address was the family home. Joao Lima wishes to continue to live in one of the units in his multiple apartment property on Heiman Street. That makes sense because, not only does that give him appropriate accommodation, but it allows him to continue to maintain the property and benefit from its rental income.

[13] I therefore direct that 12 Gilmour Crescent shall be the sole property of Deolinda Lima. The respondent Joao Lima shall forthwith sign any documents necessary to confirm Deolinda Lima’s ownership of the 12 Gilmour Crescent home, with no claim made against that property by Joao Lima. Though different opinions of value were provided to the court, I conclude that 12 Gilmour Crescent has a value in excess of $300,000. It is currently in Deolinda Lima’s name alone and there is no mortgage on the property. Deolinda Lima may continue to live in the home. She can rent a portion out, should she choose to do, or she may sell the property on the market. That will be entirely up to her.

[14] Different opinions were also expressed with respect to the value in 2010, 2012 or 2017 of Mr. Joao Lima’s property at 73 Heiman Street. There is a significant mortgage attached to that property and in the normal course, taking into account the value of their respective assets, Deolinda Lima would owe an equalization payment to Joao Lima. For that and other reasons, vesting the 12 Gilmour Crescent property entirely in the name of Deolinda Lima is a fair contribution to what otherwise would be Joao Lima’s support obligations.

[15] The property at 73 Heiman Street shall remain the property of Joao Lima. That property provides him with accommodation and also some continuing income. I direct that Deolinda Lima shall forthwith complete any documentation necessary to confirm Joao Lima’s sole entitlement to 73 Heiman Street.

[16] There are other assets as well that I have taken into account, including several accounts at the Bank of Montreal and an RRSP in the name of Joao Lima. I direct that all other assets to which Deolinda Lima or Joao Lima may be entitled to, including furniture, motor vehicles and any other assets, shall remain the property of Deolinda Lima or Joao Lima, if they are currently in their possession.

[17] I further direct that Joao Lima shall make a further global support payment to Deolinda Lima of $30,000, which payment shall be made within one year of publication of this ruling. When such payment is made, it shall constitute a full and final resolution of any support obligation Joao Lima has to Deolinda Lima. With the house at 12 Gilmour Crescent and this further global payment she will have financial security and be able to get on with her life. Joao Lima will be able to get on with his life as well. I am mindful that his property at 73 Heiman Street has increased significantly in value since the parties separated (whatever date one may choose for the date of separation). However such increase in value is due in large part to his management of the property. As noted above, he may continue to live in the property, benefit from the rental income or dispose entirely of the property for his personal benefit. That will be entirely at his discretion.

[18] There remains for determination the property in Portugal. It was purchased during the marriage, prior to separation and a house has been at least partially constructed on that property. Different estimates of value were given for that property during this application. Apparently the property is held in the name of Joao Lima, however evidence called on the application supports the conclusion that by Portuguese law this is considered “community property” to which both the husband and wife have a claim (there may be other claims to this property as well, perhaps from other family members). I simply direct that if this property is sold, both Deolinda Lima and Joao Lima shall share equally the net proceeds of such disposition.

[19] If counsel cannot agree upon the costs of this application, they may make brief written submissions to me in chambers within 30 days of publication of this ruling.

R. D. Reilly J. Released: March 8, 2017